Best Practice

The SEND Tribunal: Attending the hearing

Parental engagement Senior leadership EHCPs
The SEND Tribunal specialises in hearing SEN appeals and disability discrimination claims concerning children in schools. In the second of two articles, Nabil Dance offers advice on preparing for and attending a hearing


If you have not already done so, I would recommend that you read part one of this series of two articles where we looked at how to prepare for a hearing of The SEND Tribunal. We considered:

  • What the SEND Tribunal is.
  • What powers the Tribunal has.
  • An outline of the Tribunal's process.
  • Tips for preparing for the hearing.

Both that article and this one are aimed at heads and deputies who have never attended such a tribunal hearing or have limited experience. Having said this, those with more experience may learn some useful points. This second article focuses on attending the hearing itself...


Tips for appeal hearing attendance

Here are some considerations to bear in mind in the period of time leading up to the hearing and on the day itself.

I would strongly recommend having a strategy meeting with the relevant party around a week before the hearing. Set aside at least a few hours for this, particularly if you are working with a legal representative. In representing parents, these meetings would consume a standard working day for me, and the head would depart at around lunchtime (although every case is different).

Around a month before the hearing, double-check that the party calling you as a witness has the same papers as you. This is important as the tribunal can exclude any last-minute written evidence that is received.

Shortly before the hearing you should receive a bundle of documents from the party that called you as a witness, including all papers from both sides. Familarise yourself with the bundle as much as you are able to.

The tribunal has a range of powers as set out in my first article, yet most panels will maintain a relatively informal environment and atmosphere. You can essentially treat it as a crucial meeting with a slight twist.

The stress and anxiety will peak for parents, particularly shortly before the hearing and when it commences. Do bear this in mind, especially if you have been called by the parents as a witness.

Be prepared for the hearing. Bring the pupil file and any additional documentation that you may need to refer to. Don't forget the bundle of documents sent to you by the relevant party.

Having attended hundreds of tribunal hearings, I can safely say that the time passes very quickly on the day. While there is no fixed time for a conclusion, most hearings wrap up by 5pm.

Ensure that you get your key points across by then. When the hearing concludes, no further evidence can be presented, including verbal comments from you and other witnesses. Likewise, no further written evidence can be submitted.

If you are bringing a colleague as an additional witness, make sure that they are familiar with the tribunal, the process, and its powers.

A familiarity with the SEND Code of Practice (DfE, 2014) greatly helps at hearings. The panel expects schools to comply with the code, except in limited circumstances. Questions to you will inevitably include what support is (or can be) provided to the relevant pupil.

Different panels behave in different ways. I have conducted appeals and claims before sensitive, kind, and empathetic panel members, all the way to aggressive and unpleasant ones. This is more of a concern for parents but as heads it is worthwhile bearing in mind this random element that is beyond your control. In other words, do not make assumptions and expect the unexpected.

In the case of certain SEN appeals, the parties tend to negotiate prior to the hearing, and sometimes during the lunch break. The party you are linked to may seek your input.

Tribunal hearings may seem the same, but the panel determines what the key issues are and in what order they will be addressed.


Additional facts and practical information

  • An appeal or claim can be formally withdrawn at any point up until the day before the tribunal hearing.
  • The tribunal will only enter into correspondence with a recognised party to the appeal, or claim, leading up to the hearing. In other words, the tribunal staff, or judges, may answer any queries you have but will not comment on the relevant case.
  • Both parties have their own private meeting space prior to the hearing with access to it throughout the day. The proximity between both parties varies greatly from venue to venue. Representatives from a party may consult with the other party in their room. Outside of the hearing room, the only way to communicate with the panel is through their designated clerk.
  • Panels vary greatly in the atmosphere they create at a hearing. However, nearly all will expect standard meeting etiquette to be followed. Hearings vary in duration and can last from as little as two hours up to eight hours. The length of a hearing depends on the type of case and number of witnesses.
  • Both parties can enter into mediation for SEN appeals, which is overseen by an independent mediator arranged at the expense of the local authority. The parties must submit all written and visual evidence to the tribunal by a deadline given to them.
  • The venues of hearings can vary considerably from the tribunal's own designated building to hotels and other government buildings. I have personally attended hearings in the middle of nowhere, so bear this in mind, particularly if you have medical needs, as the facilities can vary. The tribunal, like any governmental body, is obliged to make reasonable adjustments if you have a disability. Likewise, in my experience, the panel will consider any medical needs that you, or any other witness, may have.
  • In the past, the tribunal could only consider the child's educational needs. However, in 2021 this was extended to the ability to make recommendations concerning health and social care needs.
  • Either party can bring a legal representative, such as a solicitor, barrister, or other appropriate professional. Evidently this can change the dynamic of a hearing, and make it slightly, or considerably more formal depending on the circumstances. Parents often appoint other representatives to represent them at the hearing although their backgrounds and knowledge about hearings can vary considerably. I have observed numerous supporters representing families, including former teachers, educational professionals, quasi-educational professionals (e.g. therapists), all the way to a family friend or the child's grandparent. Parents and witnesses can potentially claim reasonable expenses.
  • The panel will actively take steps to maintain neutrality and impartiality. As a rather awkward example, I once represented a family at an appeal hearing but was surprised to physically bump into the judge in the toilet during a lunch break. I simply said “sir” and respectfully bowed my head slightly (a tradition of many lawyers) and moved aside as he left the facilities. The judge rightfully ignored my single comment and natural gesture, as this was a step to maintaining that neutrality.
  • The tribunal cannot order certain things, such as directing an unsuccessful party to pay financial compensation to the other party. Following a tribunal's decision, a party may be able to appeal to the Upper Tribunal (Administrative Appeals Chamber) and secure a fresh hearing, so do be aware of this possibility.


Concluding remarks

Developing your knowledge about the tribunal, and your case, carries significant benefits to your school's case (if appropriate), the case of the party you are linked to, and, ultimately, the relevant pupil's future.

I hope that these articles will add to your growing bank of knowledge and make you a more confident witness at your next tribunal hearing.

  • Nabil Dance is an education lawyer who advises parents and schools in England and Wales. He is a former Independent Appeal Panel Member for school admission appeals. You can contact him via nabildance@mail.com. The contents of this article do not constitute legal advice and are provided for informational purposes only. Read his previous articles for Headteacher Update via https://bit.ly/htu-dance


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