Witnesses for appeals

Calling a witness

Before sending the Case Review Form, (the SEND 45) you must email the witnesses you are going to name to make them aware. A simple email is fine, you just need to let them know that you are calling them as a witness, give them:

  • your child's name,
  • the Hearing number and the current date of the Hearing
  • the reason for the Hearing, i.e. you are appealing as no School is named in Section I or you are not happy with the School the LA have named in Section I.

When you completed the SEND 35 and you stated a School name you should of already emailed them to state you are appealing for them to be named, so emailing to ask for them to be a witness shouldn't be a surprise to them!

You will need to say that you will pass on the Bundle and the joining instructions when you get them (then do so).

It maybe that you don't need any witnesses other than yourselves as the parents and the LA Tribunal Officer.

Logging on to a hearing as a witness

Once logged on, you will then be asked to leave and come back 5 minutes before the Hearing time.

At the start of the Hearing the Judge may ask for views on the disputed points and the hearing mostly takes the form of a formal conversation, with the Judge directing. It is important that no one interrupts when someone else is speaking.

The Judge will normally ask if everyone has had sight of the Bundle.

You may not have read the whole Bundle as these can be very big but you should read the EHCP / Working Document so you are familiar.

Both parties (parents and the LA) can put questions to each other and to any witnesses.

Your role as a witness

Witnesses to the SEND Tribunal can claim for travel expenses and a fixed amount for loss of earnings. You would need to fill in the SEND16A from (GOV.UK). Proof of receipts and tickets will need to accompany the form.

You must send your claim to the Tribunal within 30 days of the hearing. The address to send it to is on the form.

Travel expenses - If you travel to a Court you can claim for standard-class rail fares, bus or tram fares or mileage if you travel by car.

Loss of earnings - Witnesses can claim.

The tribunal may check any claims for loss of earnings with your employer.

More information can be found on the GOV.UK website.

Witness summons

A Judge, the LA or you as parents can ask for a witness to be summoned. You would do this by completing a SEND 7 / Request for Change form and ticking "a witness summons". You would explain why the summons is needed, for example a school is not confirming that they will be attending your Hearing.

A Tribunal Judge will then make a decision whether to issue the summons or not.

Judges can also issue witness summons during a Hearing.

Witness statement

A witness statement can be used to give written evidence. The person would be assisting the tribunal in matters within their expertise. They are signing to say that what they write is a true statement about your child and should be linked with your appeal. A template of a witness statement could be used and sent as evidence.

Giving evidence from abroad

In most cases, Hearings are virtual so you do not have to physically attend a Hearing but this does NOT mean that you can join the Hearing from abroad without asking for permission first.

The Health, Education and Social Care Chamber (HESC) Chamber issued interim guidance in May 2022 about giving oral evidence from abroad (judiciary.uk). This is a small section of that interim guidance:

Permission is needed if a party proposes to give oral evidence from abroad

The decision in Agbabiaka sets out the following:

"There has long been an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country's diplomatic relations with other States and is, thus, contrary to the public interest." (para 12.)

"Whenever the issue arises in a tribunal about the taking of evidence from outside the United Kingdom […] what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom's diplomatic relationship with the other country." (para 19.)

"[…] it is not for this (or any other) tribunal to form its own view of what may, or may not, damage the United Kingdom's relations with a foreign State." (para 23.)

The decision underlines that the giving of oral evidence from another nation state requires the permission of that State. Permission is not needed for written evidence, or for submissions (whether oral or written), although submissions are considered below.

Can a party make submissions from abroad, rather than give evidence?

Bearing in mind the nature of the proceedings in the Health, Education and Social Care Chamber ('HESC'), and the jurisdictions it covers, the decision has been taken that there is too much risk that a litigant in person making oral submissions may stray into the giving of evidence. Therefore permission must be sought as a precaution by any party wishing to make submissions from abroad.