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Upper Tribunal judge rules online hearing of EHC Plan case not unfair to visually impaired litigants

A hearing held online involving visually impaired litigants was not unfair – or if there was any such unfairness, it made no material difference, the Upper Tribunal Administrative Appeals Chamber has found.

It found this in an appeal from the First Tier Tribunal (FTT) in a case brought by parents AA and BA in their case against an unnamed local authority.

In AA and BA v A Local Authority (SEN) [2021] UKUT 54 Upper Tribunal Judge Ward refused permission to appeal on the grounds argued about AA and BA being disadvantaged by the online proceedings.

The remaining grounds would be dealt with by a confidential ruling as they “have no importance beyond the parties”, he said.

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AA is severely sight impaired and BA is sight impaired. They submitted that the FTT’s hearing of their appeal their son C’s education, health and care (EHC) plan had been unfair in view of their visual difficulties as it was held on the Kinly online platform.

Judge Ward said the relevant senior president’s practice direction was “not something which is encountered very often in the proceedings of the FTT (Health, Education and Social Care Chamber) in its special educational needs jurisdiction and perhaps requires a higher profile”.

The relevant part stated: “The tribunal must consider how to facilitate the giving of any evidence by a ...vulnerable adult... “ and that “It is accordingly beyond argument that the tribunal and the parties are required so far as is practicable to ensure that an appellant is able to participate fully in the proceedings…”.

AA and BA complained that during the hearing they could not pick up on nuances and ‘non-verbal’ communication.

Their solicitor asked for reasonable adjustments including extra time to access documents, participants to state who they were when speaking and to make it clear when AA and BA were expected to speak. This was not fully acted upon.

Judge Ward found: “Participation may very possibly have become somewhat more onerous for the applicants as a result of the failure adequately to implement the solicitors’ requests.”

He said that merely because participation in the proceedings “has become somewhat more onerous does not however, of itself, mean that the hearing was unfair so as to make it unlawful”.

Mark Smulian

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