England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
(HIS HONOUR JUDGE DAVID PEARL)

		Royal Courts of Justice Strand, London, WC2A 2LL
		8 June 2011

Lord Justice Carnwath:

1. This case has had an unhappy history but has taken a happy turn shortly before it came to this court, with the result that the outstanding issue between the parties is very limited indeed. I, for my part, am grateful to both counsel for the responsible way in which they have approached it.
2. I can deal with it shortly in the circumstances. It concerns William, who was born in 1999 and has very complex communication needs and speech difficulties; his language is profoundly impaired. He left St Gregory's Primary School in July 2009. The county council, as the authority responsible, named Thomas Wolsey School (a special school for pupils with physical disabilities) in the statement of special educational needs. William's mother, Mrs Chapple, disagreed with this and requested that St Mary's School, Bexhill (a non-maintained special school for pupils with moderate learning difficulties) should be named for him. That would undoubtedly involve more expense for the authority but her evidence, supported by experts, was that that was what was needed for him.
3. She appealed against the contents of the statement to the Special Educational Needs and Disability Tribunal. The matter came before them on 19 October 2009. They heard evidence from a number of witnesses, including a Mrs Farrugia, a speech and language therapist, on behalf of Mrs Chapple; her strong view was that Thomas Wolsey School would not be able to meet his needs. She had in fact paid a visit to the school very shortly before the hearing and was able to report on that.
4. The Tribunal issued its decision on 23 November 2009. They ordered a number of amendments to the statement, and accepted to a large extent Mrs Farrugia's evidence, but not on certain aspects and not in particular on the unsuitability of Thomas Wolsey School, which they proceeded to name in the amended statement. Mrs Chapple appealed to the Upper Tribunal where the matter was heard by HHJ David Pearl, who on 12 October dismissed the appeal. Mrs. Chapple sought permission to appeal to this court. I granted permission. At the heart of the issues which led to the appeal was further evidence given by Mrs Farrugia, making two main points. The first was that the reasons which had led the First-Tier Tribunal to disagree with her had not been properly ventilated at the hearing. Secondly, the provision which William required, and which the Tribunal had thought would be provided at Thomas Wolsey, was not in fact available. Indeed, there was a question as to whether it ever could have been available.
5. The way this was dealt with before HHJ Pearl was by an application to admit new evidence. It was argued by Mr Friel for Mrs Chapple that the new evidence showed that there was a mistake of fact affecting the original decision which could be treated as a matter of law by the Upper Tribunal under the principles in E v Secretary of State [2004] QB 1044. Alternatively the Upper Tribunal, applying a flexible approach, could take cognizance of the fact that the provision which had been assumed by the First-Tier Tribunal was not in fact being provided, so that in a sense the proof of the pudding was in the eating. HHJ Pearl dismissed that contention in a clear and carefully reasoned judgment. He held in particular that the question of performance of the duties under the statement was a matter for judicial review, not for review by the Upper Tribunal of the First-Tier's decision. He declined to admit the new evidence.
6. This would have been a second appeal and therefore it had to be shown that there was a point of general importance or other compelling circumstance. In granting permission I referred to what Mr Friel had described as the "puzzles and mazes" of a system which required a litigant attempting to secure the appropriate treatment for her son to follow two different procedures. The problem was that here there was an overlap between the two. What mattered to her was that, according to her evidence, her son was not getting the treatment he had been promised. Whether that was because there had been a mistake in the original assessment of the school's capability or because supervening events had proved that to be unachievable was for her somewhat academic. Shedid not want to be caught up in a procedural argument about which was the appropriate forum.
7. Meanwhile Mrs Chapple had been moving on other fronts to obtain information about what the authority actually knew about their ability to provide for William's needs. The Information Commissioner was brought into play and, as a result of that, information became available which now changes the perception of the position as it was before HHJ Pearl. Ms Bicarregui, who has appeared for the authority, has very frankly conceded that on the information now available, the authority either knew, or should have known, at the time of the hearing at the Upper Tribunal, that they were not performing their duty under the statement. That information was not available to HHJ Pearl. In addition the authority now concede that the appropriate provision is indeed St Mary's School, and it has been agreed that they will fund support at St Mary's School as from the coming Monday. We have an agreed consent order to that effect, with an appropriate amendment to the statement of special educational needs. They also agree that in the light of that concession, made only very shortly before this hearing, they have to pay the costs of the appeal.
8. The only question is, what about the costs of the Upper Tribunal? Mr Friel, on behalf of Mrs Chapple, says that a lot of expense, quite apart from anxiety, was incurred by his client in taking the matter to the Upper Tribunal. He says that had HHJ Pearl been aware that there was not merely a question about whether the authority's duties were being complied with, but that on the material known to the authority they clearly were not, he would have approached the matter in a different way. Therefore the costs of the Upper Tribunal have been to a large extent thrown away.
9. This is not an appropriate case to examine what might have happened in front of HHJ Pearl had he been aware of this. In granting permission I had in mind the evolving role of the new Upper Tribunal under the Tribunals, Courts and Enforcement Act 2007, which may provide opportunities for more flexible approaches to meeting the needs of particular cases in the interests of the parties. This court has recently emphasised the important role of the Upper Tribunal in developing practice and giving guidance for the specialist tribunals, rather than (as would be the case with a higher court) being expected to pay "deference" to the specialist expertise of the First-tier tribunal (AP (Trinidad & Tobago) v Secretary of State [2011] EWCA Civ 551 para 46)..
10. In view of the concessions made, this is not now a suitable case in which to examine the procedural possibilities in any detail. However, if it be right, as I think it probably was, that the appropriate remedy for the authority's failure would have been judicial review, it could have been borne in mind that the Upper Tribunal itself has judicial review powers. Although they depend on an application to the Administrative Court and a decision to transfer, they provide a possible means by which in an appropriate case arrangements could be to bring all the issues before the Upper Tribunal. I can see why HHJ Pearl, faced with the situation he was in, did not think it necessary to examine that possibility, especially as no one seems to have suggested it before him. However, it might have been different had he been aware that the evidence showed very strongly showed that there was a breach of the authority's duty. I recognise , as Mr Friel says, that such an approach may raise other issues, such as questions about funding, legal aid and so on..
12. So where does that leave us on the facts of this case? Ms Bicarregui does not dispute that we have power to make an order in respect of the costs before the Upper Tribunal. She says with some reason that not all the costs before the Upper Tribunal were necessarily thrown away, that it was not unreasonable for the authority to defend its position in relation to the matters which had actually been before the First-Tier Tribunal, and that the question of judicial review issue was in law a separate issue. That, with respect, seems to me is an unnecessarily legalistic approach. The fact here is that the authority knew, or should have known, before the Upper Tribunal hearing that it was in breach of its duty and it should have realized that had that been disclosed to the judge the proceedings might have taken a different course. More importantly, the provision of the service which this boy so urgently needed would have been provided at an earlier stage.
13. In those circumstances it seems to me that it is open to this court to make an order that the authority should pay all the costs in the Upper Tribunal as well as in this court, without making too narrow a distinction between the various issues. The conduct of the authority, as it is now known to have been, combined with the practical situation, justifies us making that order. Accordingly,.in addition to the points in the consent order, I would order that the authority should pay the costs incurred in the Upper Tribunal proceedings, subject to detailed assessment unless agreed.

Lord Justice Thomas:

14. I agree.

Lady Justice Arden:

15. I also agree. My Lord's judgment demonstrates with great clarity the just and proportionate approach to dealing with the issues on this appeal in the way he proposes and I have no doubt that the local authority should have disclosed the position to the Upper Tribunal. On that footing, the order will be as in the minute of order with the further order, to be drafted by counsel and agreed by them, that the local authority will undertake responsibility for William's place from Monday 13 June 2011. The provision as to costs will be that the costs of this appeal and of the appeal before the Upper Tribunal are to be paid by the respondent, subject to detailed assessment unless agreed.

Order: Appeal allowed with consent