one week to go to my NIL appeal and the LA have instucted a barrister

[bjkmummy]

got the letter today on a Saturday - they want the sen officer to be an observer now and to be there purely to instruct counsel.

I don't want that I want her to answer questions as she wrote NIL and she made the decision so shes hiding behind the barrister.

FFS why why why ...... I will be opposing but help with what to write would be greatly appreciated

OMG what a cheek! They should have got my DS to help make the coffee, he dribbles a lot and always has his hands in his mouth
She might just be doing delaying tactics to try and upset you for the tribunal etc. She hasn't got anywhere else to send him, she's playing games.

The tribunal isn't too bothered about the attendance form deadline - people often change representatives and witnesses well after that deadline and they don't bat an eyelid. I wouldn't put too much faith in being able to oppose them instructing a barrister, but you could try an argument about it being unequal and disproportionate given that you won't be legally represented.

You stand a better chance of opposing the SEN officer being an observer. You're entitled to say that there is no reason for her to be in the room unless she's a witness, and if you really want her to give evidence you can say that is what you would prefer. However, have a think about whether you are really better off with her in that position, given that the barrister will be helping her and will go through everything with her carefully beforehand and may effectively advise her on what your likely questions will be and how she should answer.

I suppose in the final analysis you could ask the tribunal to issue a witness order against her, but you have to give two weeks' notice.

it just reeks of unfairness doesn't it - the tribunal say that we should know who the other side are bringing and instructing so there are no surprises and yet they can do this - I know they barrister will probably be allowed but im going to argue it anyway but will prepare myself that he is going to be there regardless and as for the sen officer I need to consider what I am going to say - she cant have her cake and eat it - she either sits there and answers question if asked or she sits outside. the barrister is the one they instructed last time and we won - however does that mean this time he will be more keen to defeat us??? who knows.... at the end of the day he is paid regardless and even with his track record my LA have gone back to him

No. It isn't personal for the barrister. It is his job. The SEN Officer is the one with a vendetta. Of course he wants to win. It is good for his record and for repeat business and he may or may not try dirty tactics, but you have experience so would know the likeliness of that, but don't feel 'personally' attacked by him. He's a weapon someone else is wielding.

Listen. Try and get over this latest 'thing', get your head down, and get on with it. It's intimidation and bullying tactics but statistically it doesn't mean that much. If anything it makes the LA look bad to a decent panel.

As others have said, it is likely the barrister will be allowed.

I didn't know until the morning of my hearing if my barrister or my solicitor would be able to represent me (because anther case my barrister was acting on had been adjourned to the day of my tribunal). We had change requests going back for a week before because of this. On the day, my barrister just turned up (because his other case had been adjourned again the afternoon before and there hadn't been time for another change request to name him). The panel let him in without even mentioning it.

Also, it can be good too for the LA to have a barrister. I know someone who went to a 2 day hearing - day 1 with the sen officer and day 2 with a barrister. Day 1 was a nightmare because of the LA's inability to understand the law - let alone being able to apply it! Day 2 (with barrister) was a lot smoother because even though the barrister was obviously acting for the LA, he was working within the law and understood the law. The LA weren't able to do anything stupid or illegal with their own barrister reigning them in. It also stopped the hearing going into a 3rd day - which would have happened without the barrister overseeing the LA's behaviour.

So the LA having a barrister could actually be a good thing

The SEN officer is another matter. You should refuse to allow her as an observer. But if she isn't allowed in the room as an observer, there would be nothing to stop her being in the waiting room. So the barrister can take his orders from her. My Sen officer tried (48 hours before hearing) to be 4th witness. we put in a heavy objection but my barrister requested that she was in the waiting room because she wrote the statement. He thought it would be good to have her on the premises to stop any attempt at an adjournment if something in the statement wasn't understood.

She was denied being a 4th witness by a judge the night before. But on the morning of the hearing, the LA put in another request for her to be the 4th witness and this time "in the interest of justice" she was allowed in as the 4th witness (to my 3!) yes that's what the judge said "in the interest of justice"!!.

So you could fight now for the sen officer not to be an observer etc but only for it to be overturned on the day.

Personally, I would object to her being an observer as it would be pointless her being present in that capacity. But as she wrote the statement, I would put in a change request that she is YOUR 4th witness on the grounds that she wrote the NIL so should be present in the room and therefore able to account for her actions during the trial hearing.

Ici says that you're supposed to give 2 weeks notice. But my LA tried to do it less then 48 hours before the hearing and then again on the day of hearing. You could put in your change request the reason being that it's so late naming her as your 4th witness is because you always thought she'd be present. And she intends to attend the hearing anyway so she's obviously available that day.

This is now tactics from your LA - they know they have a hopeless case so they're just trying it on now

My la wanted six on their side against me and my ep. It made zero difference I feel. What I did feel however was that it was a bully boy tactic. He got his witnesses together, prepped them about how crap a person I was etc but on the day it didn't add up and he made sure they was all out the room before saying outright I was a bad person.

He could have brought borris Jonson as a witness. He was a clueless idiot whatever he did. Clueless about sen and clueless on the law.

You can't argue with stupid

As star said, a barrister is unlikely to cynically break the law in the way a LA will. In terms of questions for the SEN officer, never ask a hostile witness anything you don't already know. Be prepared for her to lie- blatantly and convincingly. If it's your word against her, she'll possibly win. Coz parents are usually considered unreliable. If it's her word against the written evidence in the bundle, and the other witnesses, that works much better.

An observer is meant to observe and nothing else. You will probably get your way in having the judge refuse this. If the LA want her as a witness, it's unlikely SEND will refuse a late swap- but they may not be keen on her being an extra witness, cos SEND don't want the case to run late.

The purpose of an observer is a) to be a comfort blanket to the parents
b) for training purposes.

And whenever an observer is requested then the other side gets a chance to object.

And I would definitely object to this one. This is not a pupil barrister who would be a trainee to the barrister. This is someone closely involved with the proceedings who will increase the strength of their team in a way which you cannot match.

There is a human right about fair trials and equality of arms ie they can't have what you can't have.

At this late stage they can't have both a barrister and a key-witness-cum-experienced-tribunal-advocate (even to observe as they can then advise in the breaks) as there is no way you can match that.

With the order to produce the witness, remember that even if they are up to numbers the Tribunal can allow an extra if it is necessary for a fair hearing or some such wording.

bjk ask for the start time to be moved to the morning... they will probably do that if you ask.

hmmm plenty to ponder - now I have had 24 hours to fester about it - I guess them doing it on a Saturday has done me a favour as I have had this time to think about things. they thing by doing it on a Saturday they have got one over on me - guess they thing its a weekend ruined but I went out last night with my best friend, got drunk and had the rant so its all off my chest now....

now I need to draft my response - I think the LA witnesses will find it easier to give their evidence without the sen officer being present as one of the witnesses have told me they find her very intitmidating and without her there I think they will speak more openly and honestly without watching what they say.

I will make an attempt to oppose the barrister but I accept it may well be allowed but then definitely oppose her being an observer. if shes isn't there to answer the questions, then we have put our views all in writing so they would stand - like you say even if we ask the questions there is a real chance she will blatantly lie.

She's clearly not intending to just observe.
They will be allowed to replace the rep I would think
But you can refuse an observer as you can quite reasonably say their barrister doesn't need an observer for moral support and the LA Rep doesn't need to be there for training reasons and you do not consent to her as an observer, it will be stressful enough for you having to go up against a barrister without them stacking the room with extra people.

Being there to instruct the barrister is not the role of an observer as observers are not allowed to participate during the hearing.

I would think asking for her to be an observer is an own goal. She may well not be allowed to attend at all. The barrister can always get instructions by phone if needed.

It weakens their position as the barrister is unlikely to be able to answer many questions without her.

What witnesses are there on their side?

It may make the hearing simpler as the witnesses will have to say how they can meet needs within normal resources of a school. Be hard for them if no EP or SEN officer.

they have her class teacher/senco as a witness - she agrees and has put in writing dd not making progress. the other witness is a senco from a secondary academy (dd in year 6) the secondary school we have not named nor will we be sending her there, it isn't the local school but the senco Bessie mates with the LA officer

Well I think you will be in and out in an hour then. One witness supports you, the other doesn't know your child.
Maybe the LA rep just doesn't want to be held responsible for losing (again)
Pretty good chance judge will refuse observer of own accord

Hello
I am reading this through so some of these comments are a bit out of sync.

I think the two week's notice for the order to produce the witness could br waived 'in the interests of justice' given that the witness was planning to be in the room as a rep only last week, and now wants to be in the room as an observer. She clearly has the date free and will be fully prepared to answer questions.

im drafting a response now - im opposing the change in barrister (know im on a losing side to that one) and am opposing her being observer - if she wants to come as a witness that's fine but she wont want to do that cos she doesn't want to be in the firing line.

I think her being out of the room and having a barrister presenting it could be a good step forward so the LA have hopefully done me a favour cos I bet they will have no idea that they risk the LA officer not being able to sit next to the barrister during the hearing.

they also I guess wont want to name her as a witness in case they are going to produce the LA EP so will want to keep a space free for him. its just trying to stay one step ahead of the game - our case is simply overwhelming so this is just a last ditch attempt to intimidate me in some way but this could also now backfire on them

Your appeal is really soon isn't it?
You should have a definitive list of witnesses, names and all in a reasonable time to prepare questions and sort references for relevant documents.

Do you want the LA rep to be there as a witness? If so add a request for her to appear as one of your named witnesses if you have a spare witness-slot

email if you want an eye over your letter (won't be offended if you don't).

At my hearing the rep and ep wasn't allowed to sit next to each other. They passed notes - to be fair so did I to dh. But mine was quite childish. Made me feel better at the time :0)

yes - I can now say its next week. im not sure about calling the sen officer as a witness as she will lie. my bundle and written submissions is really detailed. I think the panel will draw their own conclusions about her wanting to be an observer. she put that she wont be addressing the panel but will be present at the hearing as an observer.

im just going to oppose the barrister and also her attending as an observer - think it could help us with her not being in the court room - im also conscious if we ask her to be named then its really upping the number of witnesses and im worried we will run out of time

Great stuff
Pulling her in as a witness would be very awkward, so let's just thank the Lord/fate/karma whatever that she won't be there.

You will need a very big URGENT on that request/response....

It really is outrageous that you don't have the witnesses named, and it will inconvenience the tribunal a lot if you have to spend time in the hearing trying to locate documents you could have noted in advance.

You need to know so that there can be a fair hearing.

(And also, just occasionally you find something that they have blogged or put on the website that they have long forgotten about which completely helps your case....)

I think I will be okay - nerves calmed now - big urgent on the email - will send it in the morning as going to sleep on it tonight but also it puts the pressure on them as this could come back to bite them on the butt as they have probably now just assumed that they will be able to get this in - I have to say (and im now touching wood) that every sendist order either from me or dropped on me by the LA I have managed to always get them to go in our favour so fingers crossed my success rate continues.

fingers and toes crossed

sleep well

When you've sent it, phone and ask them to make sure that whoever deals with the LA application has your response in front of them at the same time. Theyre not always efficient about marrying these things up.