Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 08-02795, held on 6 and 13 May 2009, did not involve the making of an error on a point of law.

 

Reasons for Decision

1.           This appeal was brought with my permission. The principal issue concerns the tribunal’s decision to admit late evidence. The other issues concern a mixture of procedural fairness and the tribunal’s assessment of the evidence. In dealing with these issues, I have commented on the form in which a First-tier Tribunal should record its decision, on the appropriate approach to a review decision and, in passing, on the precedent status of decisions of the First-tier Tribunal.

A.          Introductory matters

2.           This case concerns the special educational needs of Ryan, who was born on 25 August 1997. The appellant is his mother. The respondent is the local authority responsible for identifying his needs.

3.           The local authority made an amended statement of Ryan’s needs on 17 July 2008. His mother appealed under section 326 of the Education Act 1996. She complained of the contents of Parts 2 (Ryan’s special educational needs), 3 (his special educational provision) and 4 (his appropriate school) of the statement.

4.           The appeal was heard by the First-tier Tribunal, which had acquired jurisdiction in this case on 3 November 2008. The tribunal decided that it would operate under the Special Educational Needs Tribunal Regulations 2001 (SI No 600). It had power to do so under paragraph 3(a) of Schedule 4 to the Transfer of Tribunal Functions Order 2008 (SI No 2833).

5.           The tribunal heard the appeal over two days: 6 and 13 May 2009. Both parties were represented by counsel. The grounds of appeal to the Upper Tribunal were presented by the mother’s solicitors and, I assume, written by them. The local authority’s response was written by its counsel. In reply, the mother’s solicitors have said that she is not eligible for public funding, but that her counsel would attend any oral hearing on a pro bono basis. The local authority has said that an oral hearing would be appropriate, but would respect any decision I reach on this. I have decided that an oral hearing is not appropriate in this case. The issues have been clearly indentified and discussed in writing. The grounds of appeal are relatively short, at least compared with the response, but none the worse for that.

6.            In the course of this decision, I refer to the grounds of appeal and the local authority’s response without quoting or attempting a comprehensive summary. They are available to the parties and my conclusions do not depend on their detail.

B.          The form of the tribunal’s decision

7.           The tribunal’s decision was written in the format followed by the predecessor tribunal in the special educational needs jurisdiction. It begins with some unnumbered opening paragraphs, followed by numbered paragraphs dealing with the facts, and concludes with lettered paragraphs giving the tribunal’s reasons and conclusions. That form may be hallowed by usage, but it does not comply with the Senior President’s Practice Statement on Forms of Decisions and Neutral Citation. Paragraph 2 provides: ‘First-tier Tribunal and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering.’ A three-judge of the Upper Tribunal reminded the First-tier Tribunal of the need to comply with this in M/0708/2009 at [16].

C.          The admission of the H House report

8.           This is dealt with in paragraphs 1-2 of the grounds of appeal and paragraphs 14-49 of the response.

9.           The tribunal admitted this report late regulation 33 of the 2001 Regulations.

The power to admit late evidence

10.        Regulation 33 provides:

‘33    Late written evidence

(1)     At the beginning of the hearing, a party may submit further written evidence which satisfies the conditions set out in paragraph (2) below unless the tribunal, after considering any representations from the other party, is of the opinion that that would be contrary to the interests of justice.

(2)     The conditions referred to in paragraph (1) are that-

(a)     the evidence was not, and could not reasonably have been, available to that party before the end of the case statement period;

(b)     a copy of the evidence was sent or delivered to the Secretary of the Tribunal and to the other party to arrive at least 5 working days before the hearing; and

(c)     the extent and form of the evidence is such that, in the opinion of the tribunal, it is not likely to impede the efficient conduct of the hearing.

(3)     If paragraph (1) does not apply, the tribunal may give a party permission to submit further written evidence at the hearing if it is of the opinion that-

(a)     the case is wholly exceptional; and

(b)     unless the evidence is admitted, there is a serious risk of prejudice to the interests of the child.

(4)     Before the hearing the tribunal may refer to copies of evidence sent to the Secretary of the Tribunal under paragraph (2)(b) above for the purpose of considering whether or not it satisfies the conditions in paragraph (2); but if the evidence is not admitted the tribunal shall disregard it in determining the appeal.’

11.        There is no overriding objective in those Regulations. (This is in contrast to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699)). I have to decide if the tribunal made an error of law in applying regulation 33 without reference to that objective.

The tribunal’s reasons

12.        The tribunal explained its decision on the late evidence:

‘The appeal had been originally listed for a date in March 2009, but was postponed to enable fresh evidence to be submitted by both parties. We admitted all the evidence submitted in this way, which included supplementary case statements. A report was brought to the first hearing by [Ryan’s mother] from H House, which is an NHS specialist unit working with the Child and Adolescent Mental Health Service (CAMHS). [Counsel for Ryan] said its contents were speculative and the report was regarded as being piecemeal. For this reason, [Ryan’s mother] did not wish it to be admitted. [Counsel for the local authority] said that it should be admitted and, after considerable discussion, we decided that the report, which was not lengthy, should be admitted.

‘At the start of the second hearing, a report was submitted by [Ryan’s mother] from Dr M, a psychiatrist,  which responded to the contents of the H House report. We did not agree to accept Dr M’s report; there were earlier ones in the evidence from him and this was not an occasion in our view to enable further argument to be put via a report to attempt to rebut other evidence which was before us.’

Reasons given on review

13.        On review, the presiding judge wrote:

‘We would add that it was strongly contended at some length at the hearings that Ryan should be described as autistic. Our conclusion that the evidence was not sufficiently consistent either way to so describe him did not critically affect our decision as regards school placement; the reasons for that part of our decision are set out in Conclusions R to U and they are not dependent on a prior finding that Ryan is on the autistic spectrum. Accordingly, the test in the Kirklees case which is referred to by … solicitors is not met. It might be the case that we had no power directly to order the admission of the H House report under the old Regulations, but even without that report we had ample evidence to reach the conclusions we came to.’

14.        I do not know who ‘We’ are. As I understand it, the review decision was taken by the presiding judge. Is this something that he is saying alone? Has he consulted the other members of the tribunal before adding to its reasons? Is it a recollection of the tribunal’s original reasons as agreed by the panel? And if it is, why was it not included in the tribunal’s decision? All these are questions that regularly arise when a review decision is taken by a member of the panel that decided the case. All too often such decisions tend towards self-justification and lack the degree of detachment appropriate to a review decision. They make it difficult for the parties, their representatives and the Upper Tribunal to know what reasons the tribunal had for making its decision.

The arguments

15.        In the grounds of appeal, Ryan’s mother argued that the H House report should not have been admitted as it was served after close of business on the evening before the hearing, was written by persons who were not qualified, and was provisional and subject to discussion and reconsideration. It was procedurally unfair to admit the report. In response, the local authority began by setting out the factual background, emphasising that Ryan’s diagnosis was never crucial to his statement. It then listed the 23 reports and other evidence relating to the issue before dealing with the importance of the H House report, arguing that it was proper and permissible to admit it in view of the different views held by the professionals who had reported or commented on Ryan. Next it dealt in detail with regulation 33, arguing that it was admissible, albeit that it was not ultimately relevant.

My analysis – was the H House report admissible?

16.        The report from H House was dated 5 May 2009, the day before the first hearing. It took the form of a three page letter to a Consultant Paediatrician and was written by a Consultant Clinical Psychologist and an Expert Clinical Practitioner. The letter consisted largely of an account of Ryan’s visit and behaviour at the visit. The purpose of the visit was ‘to clarify what his primary developmental difficulties were.’ The authors’ aims were to engage with Ryan and his mother and ‘consider a diagnosis of a possible Autistic Spectrum Disorder.’ The letter concluded: ‘In these formal and informal assessments, Ryan did not reveal characteristics in behaviour that demonstrated social or communicative impairment, or repetitive and rigid play. His difficulties appeared more driven by some form of dyspraxia and developmental delay.’ It was presented to the tribunal on the evening before the hearing. Given that, the tribunal could not have relied on paragraphs (1) and (2) of regulation 33 to admit the report. It could only have done so under paragraph (3).

17.        I reject the grounds of appeal. For a start, they refer to matters for the First-tier Tribunal when assessing the evidence. They do not address the legal issue of whether the conditions in paragraph (3) were met. They are, therefore, not relevant to the legal issue I have to decide. They are presented as issues showing procedural fairness. In fact, they are issue of evidence assessment, which is essentially for the First-tier Tribunal.

18.        The local authority has argued that I must read the tribunal’s reasons in the context of the evidence before, and submissions to, the tribunal and in the light of the oral reasons given at the end of the hearing. That is correct, so far as it goes. However, I do not have a record of proceedings in this case. I do not, therefore, know what was said in oral evidence, what oral submissions were made or what reasons were given orally by the tribunal. The local authority has said it was asking for the presiding judge’s notes, but they have not been produced to me.

19.        On regulation 33, the local authority has referred me to the meaning of ‘the case’ that, it says, is held by most chairs of the First-tier Tribunal. I do not know what source the local authority has for making that claim. Whatever it may be, this point is irrelevant. It is the function of the Upper Tribunal to decide what the legislation means. The decisions of the First-tier Tribunal are not of precedent failure at that level. Still less are the views of the presiding judges. However, I accept the authority’s argument that ‘the case’ must refer to the argument for the evidence being admitted late rather than the appeal to the First-tier Tribunal itself. That is the more natural meaning in the context.

20.        On whether the case was ‘wholly exceptional’, the local authority has submitted that it was in the context of the factual background, and the need to have relevant and up-to-date information. I accept that the background is relevant to the issue. However, the mere need for relevant and up-to-date information is not of itself determinative; nor is it of much relevance. If these factors were of any significance, they would deprive regulation 33 of its obvious function of restricting the late evidence that may be admitted.

21.        My conclusions are as follows. The H House report was not admissible under regulation 33(3). Neither test in that paragraph was satisfied. There was nothing exceptional in this case. It is always possible to produce further evidence. It is often possible to identify matters on which the evidence is not decisive. There must come a time when the tribunal makes a decision on the evidence that is available. That is what regulation 33 provides for. It does not restrict the evidence that the parties may produce. It does not prevent them exploring in evidence matters on which the evidence available is not decisive. All it does is to impose a timetable. It sets the time by which that evidence must be obtained and provided so that the other party and the tribunal may prepare properly for the hearing.

22.        Nor was there a serious risk of prejudice to Ryan unless the evidence was admitted. The tribunal did not refer to this as a reason for admitting the report. It final decision did not rely significantly on the key issue of diagnosis. Ryan’s mother has opposed use of the report. And the local authority has argued that it was significant in the outcome. Where, then, is there any evidence of a serious risk of prejudice that required the report to be admitted?

23.        My reasoning on regulation 33 will be of little relevance for the future, as the rules that now apply are different in their terms. See rule 15 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. That rule does not refer to the case being exceptional or the serious risk of prejudice. Those matters will, of course, be relevant under rule 15, but they will be subsumed in the discretion conferred by that rule which must be exercised in the light of the overriding objective under rule 2.

24.        Having decided that the tribunal should not have admitted the report, I have to consider whether this mistake was material to the outcome of the decision. If it was not, there was no error of law: R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [10]. I accept the presiding judge’s comment that the diagnosis did not affect the tribunal’s reasoning on the appropriate educational provision for Ryan. He is, after all, in a position to know. And his view is consistent with the tribunal’s decision and the reasoning in it. I also accept the local authority’s reasoning on this issue.

D.          The exclusion of Dr M’s report

25.        This is dealt with in paragraph 3 of the grounds of appeal and paragraphs 50-62 of the response.

26.        The local authority has provided me with a copy of this report. It took the form of a three page letter to Ryan’s counsel and was dated 12 May 2009. It contains a criticism of the H House report and a critique of the local authority’s evidence.

27.        The tribunal refused to admit Dr M’s report:

‘At the start of the second hearing, a report was submitted by [Ryan’s mother] from Dr M, a psychiatrist, which responded to the contents of the H House report. We did not agree to accept Dr M’s report; there were earlier ones in the evidence from him and this was not an occasion in our view to enable further argument to be put via a report to attempt to rebut other evidence which was before us.’

28.        In the grounds of appeal, Ryan’s mother argued that: (i) it was procedurally unfair to admit this report, given that the H House report had been admitted; (ii) it was in violation of the Convention right to a fair hearing under Article 6 of the European Convention on Human Rights, especially of the right to equality of arms; (iii) it was irrational to admit the report and put Ryan at a disadvantage relative to the local authority.

29.        In response, the local authority argued that all relevant aspects of the report were raised by counsel in written submissions. The response also comments on relevant caselaw and on whether Article 6 applies.

30.        Having concluded that the local authority should not have admitted the H House report, it is no longer possible to argue that Dr M’s report should have been admitted in reply. The same reasons apply to both; the case for doing so was not wholly exceptional and there was no serious risk of prejudice. Moreover, the contents of the report could have been incorporated into counsel’s submissions to the tribunal. I do not have a record of proceedings, but the local authority’s counsel has said that this was in fact done. Indeed, much of its contents was better suited to argument than evidence, as the tribunal itself commented. This also prevents any argument that the report should have been admitted as evidence.

31.        As to Article 6, it seems to me that it does not matter whether this applies or not. The common law principles of natural justice and fairness under Article 6 are identical for practical purposes. If equality of arms is not a feature of natural justice, it is relevant under the overriding objective and will come in under that head in future cases.

E.          Planning provision for integration at the hearing

32.        This is dealt with in paragraph 4 of the grounds of appeal and paragraphs 63-68 of the response.

33.        In the grounds of appeal, Ryan’s mother argued that the tribunal was wrong to allow evidence to be given for the first time of the way that Ryan could be integrated. This put his mother at a disadvantage, not having funding to counter this evidence. In response, the local authority argued that this was not new evidence but an elaboration of evidence already before the tribunal.

34.        I accept the local authority’s argument. Tribunals are entitled, indeed required, to explore (or allow the parties to explore) issues that arise on the evidence. I appreciate the difficulties that faced Ryan’s mother without public funding. However, that must not allow a tribunal to disregard evidence that is before it or to fail to (allow the parties to) explore issues that arise. A tribunal has to ensure that the parties have equal access to the proceedings. In the context of a particular case, that may require a limit on the amount of evidence that may be produced. However, a balance must be struck between that and the duty to decide on the appropriate provision for children, given their special educational needs. The tribunal struck that balance fairly in this case.

F.           Ryan’s performance at this last primary school

35.        This is dealt with in paragraph 5 of the grounds of appeal and paragraph 69 of the response.

36.        In paragraph C, dealing with Part 2 of Ryan’s statement, the tribunal said:

‘We also consider it useful to note the approaches and attitudes to learning by Ryan when at his last primary school. Whilst this is now some time ago, it is also the last time he attended school consistently, and when put into the past tense, will give a useful snapshot of how he reacted to school when last regularly there.’

37.        In the grounds of appeal, Ryan’s mother argued that it was irrational for the tribunal to take account of Ryan’s performance given his overall poor attendance record. In response, the local authority argued that it was not irrational. The tribunal was entitled to assess the significance of the evidence as it did.

38.        I reject this ground of appeal. Paragraph C dealt with an historical fact, which showed what Ryan was capable of achieving. A statement has to give a balanced picture. That is why the tribunal included this reference in the statement. It gave a picture of what Ryan was capable of achieving both in attending school under appropriate conditions and in school when he did attend consistently. It was relevant for both those matters.

G.         The severity of Ryan’s language difficulties

39.        This is dealt with in paragraph 6 of the grounds of appeal and paragraphs 70-73 of the response.

40.        In paragraph D, the tribunal was again dealing with Part 2 of Ryan’s statement. It referred to the severity of his language difficulties. Having referred to its findings, the tribunal said: ‘We think the most useful approach will be to record that Ryan has significant language disability.’

41.        In the grounds of appeal, Ryan’s mother argued that the pattern of expert reports was that he had severe language difficulties. In response, the local authority argued that the tribunal was entitled to take this view on the evidence.

42.        I reject this ground of appeal. As to paragraph C, the tribunal identified what was necessary to inform professionals who had to assess Ryan’s needs in respect of language. This was permissible, given the evidence to which the tribunal referred.

43.        This ground of appeal also referred to paragraph N and the tribunal’s failure to refer to specific evidence. This refers to speech and language therapy. In response, the local authority argued that this was not required. I accept the local authority’ argument. A tribunal does not have to deal exhaustively with every piece of evidence. It has to provide reasons that show why it made the decision it did and that it is justified by the evidence. The tribunal’s reasons satisfied those conditions.

H.         The failed integration programme

44.        This is dealt with in paragraph 7 of the grounds of appeal and paragraphs 74-83 of the response.

45.        In the grounds of appeal, Ryan’s mother argued (in short) that the tribunal failed to take proper account of Ryan’s failed integration plan at the school named by the tribunal. In response, the local authority argued that the tribunal was entitled to come to this conclusion after exploring the issue in evidence and submissions.

46.        I accept the local authority’s argument. On the evidence, the tribunal was entitled to reach its decision on placement for the reasons it gave. It discloses a rational approach and no error of law.

I.            Education in the home

47.        This is dealt with in the final paragraph of the grounds of appeal and in paragraphs 82-83 of the response.

48.        This refers to the tribunal’s comment that in order for Ryan’s placement to work ‘there needs to be a high level of co-operation between home and school.’

49.        In the grounds of appeal, Ryan’s mother argued that this involved intrusion into Ryan’s home in violation of Article 8 of the European Convention on Human Rights. In response, the local authority argued that all this required was a co-operative attitude and giving some rewards to Ryan.

50.        I reject this ground of appeal and accept the local authority’s argument. In the context of the tribunal’s findings and reasons, the remark complained of is quite unexceptional. All education benefits if it is supported in the home and can be undermined if it is not. There is nothing in the tribunal’s decision to indicate any possible violation of Article 8.

J.           Disposal

51.        The only point of substance in the grounds of appeal is the tribunal’s decision to admit the H House report. I have decided that that was wrong, but that it did not, in the end, affect the outcome of the appeal. The other issues are essential an attempt to reargue matters of fact or reasoning that were essentially within the province of the First-tier Tribunal. As such, they are not matters for me. The tribunal dealt with the proceedings fairly and gave clear and adequate reasons for its decision. In those circumstances, I dismiss the appeal.

Signed on original on 15 December 2009

Edward Jacobs Upper Tribunal Judge