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First-Tier Tribunal SEN proceedings not unfair despite difficulties faced by hearing impaired mother, judge rules

A First-Tier Tribunal (Health, Education and Social Care Chamber) case was not conducted unfairly despite an appellant and a witness having difficulty in hearing the online proceedings, the Upper Tribunal Administrative Appeals Chamber has decided.

In TC and BW v London Borough of Islington (Special educational needs) [2021] UKUT 196 Upper Tribunal Judge CG Ward said “there is very little objective evidence to suggest that the presentation of the appellants’ case was materially impeded by [the mother’s] hearing impairment”.

The appellants were the parents of B, who had unsuccessfully appealed to the FTT against the London Borough of Islington’s decision not to issue an education, health and care (EHC) plan following an assessment.

Their appeal was conducted remotely and they argued it was unfair because TC - mother of B - is deaf as is KC, the inclusion lead at the school B was attending who performed a mixed function of witness and representative in the proceedings. TC is a teacher at the same school.

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Judge Ward said: “At the heart of this case is the impact of such steps as were taken or not taken in the FTT hearing upon (in particular) TC.”

TC had said on the appeal form that she was deaf but did not answer a question about whether a signer or interpreter was required.

“There is no suggestion that any further submission which might be thought to go to a potential need for adjustments was made before the hearing,” the judge said.

“Nor was any request made for the hearing to be conducted by alternative means, such as in person.”

TC said she had expected the FTT hearing to be ”much more like a round table meeting/discussion” but instead Islington deployed arguments as to why an EHC plan was not needed to which she was unsure how to respond.

Judge Ward concluded: “I accept – and it is not disputed – that the FTT was under a duty to conduct proceedings in a fair way, which in appropriate cases may extend to a duty to make accommodation for disabled litigants.”

The duty though was to ”ensure so far as practicable, that the parties are able to participate fully in the proceedings”.

“The ‘so far as practicable' qualification is important,” the judge said. “What is ‘practicable’ will often be specific to the circumstances of a particular case. What the tribunal can glean from parties about their ability to participate will often be very important.”

Judge Ward said the FTT took steps sufficient in law with a view to ensuring a fair hearing.

“To the extent that TC and/or KC did experience difficulties during the hearing such as to contradict earlier indications given to the FTT that they would be able to manage, they were not communicated,” the judge said.

“To the extent that the appellants have concerns about specific aspects of the outcome, none have been demonstrated to arise from TC’s hearing impairment and a significant element of their dissatisfaction is occasioned by their understandable and proper concern for their son’s well-being and the lack of familiarity with the process as litigants in person. No material unfairness occurred and accordingly the appeal fails.”

Mark Smulian

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