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Video hearings in the SEND Tribunal: Practical Advice by Mark Greaves
Mark Greaves was recently instructed by the parents in the case of Mr and Mrs BB (on behalf of AA) v ZZ County Council, an appeal before the First-tier Tribunal (Special Educational Needs and Disability) conducted by video on 3 April 2020.
AA’s parents (acting on her behalf due to her lack of capacity) appealed against Sections B, F and I of her Education, Health and Care Plan (“EHCP”), and also sought recommendations in relation to health and social care elements of the EHCP under sections C, D, G and H. AA is a 19-year old young person with complex needs.
The primary area of dispute in the case related to placement:
- ZZ County Council (“the LA”) proposed a mainstream general further education college to meet AA’s education needs, together with a residential supported living placement to meet AA’s social care needs.
- AA’s parents proposed a residential independent specialist further education college to meet all of AA’s education and social care needs during term time.
The estimated cost of the LA’s proposal was in the region of £140,000 per year, compared to £160,000 for the proposal of AA’s parents.
Mark’s views on the video hearing software
Prior to the hearing the parties were provided with a link to the Ministry of Justice’s secure video conferencing platform, Cloudroom.
Cloudroom is similar to Zoom or Skype, and generally worked well. The sound and picture quality issue were good and although there were some issues with lag for one of the Tribunal panel members, this seemed to be caused by the member’s limited Wi-Fi signal rather than Cloudroom itself. This case featured a three-member panel, eight witnesses and counsel for both sides – and all involved were able to contribute with very little difficulty.
There are, however, two features that would be useful additions to Cloudroom’s software.
- The ability to send attachments via Cloudroom. In this case the LA made an application to rely, as late evidence, on a document which the Tribunal panel and a number of the witnesses had not seen. The application was accepted, but the hearing then had to be delayed whilst various witnesses provided their email addresses to enable the document to be circulated. This delay could have been avoided had it been possible to share the document directly via Cloudroom, but unfortunately Cloudroom’s “chatroom” feature only allows text to be sent, not attachments.
- The ability to temporarily unmute by pressing spacebar. To avoid background noise, all attendees were asked to mute their microphone during the hearing. In order to speak, attendees had to click the microphone icon to unmute themselves, then click it again to return to mute. The microphone icon was quite small and there were a number of occasions where attendees unwittingly remained on mute whilst trying to make their point, leading to delay and breaking up the flow of the hearing. Zoom has a useful feature which enables attendees to hold down the spacebar to be temporarily unmuted and talk, and a similar feature for Cloudroom would be helpful.
However, these are very minor points and, overall Cloudroom works well. The SEND Tribunal is to be applauded for its professionalism in making a smooth transition to video hearings in such difficult circumstances. As a result of the Tribunal’s flexibility, crucial decisions continue to be made that enable children and young people such as AA to progress with their education.
Mark’s practical advice for preparation
For those with an upcoming video hearing in the SEND Tribunal, taking the following three simple steps in advance should help the hearing proceed as smoothly as possible.
- Arrange a two-screen set-up, if possible: If you take typed notes, it is very useful to have a two-screen set up during the hearing, with the video open on one screen and a Word document open on the other. If you don’t have a second monitor or second device (such as an iPad) available at home, you can connect your computer to the TV via an HDMI cable which will at least provide a larger display for split screen working.
- Liaise with the other side’s representative in advance. At in-person hearings, it is good practice to arrive well in advance in order to speak to the other side’s representative and see if the issues in the working document can be narrowed down. Pre-hearing negotiation with the other side is equally important for video hearings – if not more so, given the risk of technical issues causing delays. Therefore, when you receive the other side’s attendance form, obtain the contact details of their representative and schedule a call shortly before the hearing to see if any last-minute progress on the working document is possible.
- Set up a conference call for your witnesses for the day. During breaks in the hearing, you will want to speak to your witnesses – and it is likely to be most efficient to speak to all of your witnesses at the same time. Therefore, in advance of the hearing, ensure that you have set up a conference service which can be used throughout the day and which all of your witnesses are able to join.
Mark Greaves is a barrister at Matrix specialising in Education Law.