Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. HS/947/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before: His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal

 

 

Decision: The Appeal is dismissed

 

 

REASONS FOR DECISION

 

Background

 

1.     E was born on 21^st May 2003, and he is now seven years of age. According to the agreed Working Document on Special Educational Needs dated 25^th January 2010, he has a diagnosis of a complex developmental coordination disorder (cerebellar hypoplasia) with particular difficulties in the area of communication, gross motor and self-help skills. The Working Document states that his difficulties are related to an undeveloped cerebellum which affects balance and coordination and is therefore permanent and incurable. He also has associated hearing difficulties. He lives at home with his mother and his twin brother, EM. Both brothers are currently educated at home.

2.     Unfortunately, there has been a disagreement between the Mother of E and the London Borough of Camden over the School to be named in part 4 of the Statement of Special Educational Needs, the Mother’s preference being KTPS, and Camden wanting E to go to SACE. It is this dispute that has triggered these proceedings.

3.     Ms G appealed to the First Tier Tribunal (Health, Education and Social Care)(SEN) against the decision of Camden, as set out in Part 4 of the Statement, to send E to SACE.

4.     There was a telephone Case Management Conference held on 17^th November 2009 before Tribunal Judge Lawrence Bennett. In attendance at this Conference were Mr John Ford, a Solicitor, acting on behalf of Ms G; and Mr Graham Read, the SEN Manager for Camden. Issues that were identified were the description of E’s learning difficulties (part 2), the specification of provision in part 3 (both educational setting, and Special Educational provision), and the School to be named in part 4. The Directions then set out details of what additional information and assessment reports Ms G is to send to the Tribunal and to Camden upon which she intends to rely, so that it is received by 21^st December 2009; and what additional information Camden is to send to the Tribunal and to Ms G upon which it intends to rely, again so that it is received by 21^st December 2009.

5.     Camden was requested to include in the additional information the following six specific matters as set out in paragraph 3, if not already provided:

(a) The level of support proposed;

(b) Arrangements for the implementation for the programmes specified in E’s statement;

(c) Details of any objection to Ms G’s school preference with underlying information leading to that objection;

(d) Section 52 Budgetary Information for KTPS and SACE, relevant age weighted pupil unit and the funds that will attach to the Statement;

(e) Therapist’s assessment reports which shall be sent to parent’s representative as soon as they become available; and

(f) Details of witnesses to attend the hearing which should include a witness from the school proposed for E’s attendance able to give details of its provision and how his needs will be met.

6.     The hearing was set down for 2^nd February 2010. It is important to bear in mind that in SENDIST cases, the matter had to be heard expeditiously. I am sure that the Tribunal was mindful of the observations of Scott Baker LJ in H v Sussex County Council [2009] EWCA 249, who said:

“Cases that involve issues about the education of a child are par excellence cases that need to be heard and determined expeditiously. It is incumbent on everyone dealing with such cases, whether litigants, tribunals, courts, those processing applications for public funding or anyone else to make sure that they proceed with all due speed. “

7.     Paragraph 10 of the Case Management Directions states that “The parties are advised that failure to comply with these directions may result in the Tribunal’s exercise of its powers under Rule 8 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 to strike out all or part of a party’s case”.

8.     That reference is almost certainly a reference to Rule 8(4)(a) of the Rules, as the consequences of non compliance is a discretionary strike out, with a right to seek reinstatement; rather than a discretionary strike out under Rule 8(4)(b) which can only be made after giving the party an opportunity to make representations in relation to the proposed strike out.

9.     Rule 8 is a complex provision, and failure to refer to the specific subparagraph may cause confusion. I recommend that the standard case management directions are amended so that the specific Rule is referred to, rather than a reference to Rule 8 in general terms.

10.  Rule 8(4)(a) states that the Tribunal may strike out the whole or part of the proceedings if the applicant has failed to comply with a direction which stated that failure by the applicant to comply with the direction could lead to the striking out of the proceedings or part of them.

11.  Rule 8(8) states that the Rule applies to a respondent as it applies to an applicant except that (a) a reference to the striking out of the proceedings is to be read as a reference to the barring of the respondent from taking further part in the proceedings.

12.  Rule 8(9) states that if a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent.

13.  It is unfortunate that the Case Management Direction in this case did not specifically refer to Rule 8(8) and Rule 8(9). This would have been good practice, and I recommend that the standard case management directions are amended so that Rule 8(8) and Rule 8(9) are referred to, specifically in terms.

14.  I make a finding in this case, however, that both parties were aware of the Warning Notice, which referred to the possible consequences for both parties if they failed to comply with the Directions. In addition, paragraph 11 of the Directions states that if a party objects to any Direction then they MUST send an application in Form SO4 so that it is received by the Tribunal and the other party by 12 noon on 25^th November 2009 explaining the reason for the objection, the variation that is sought, and the reason for the variation.

15.  No application was made by Camden for variation.

16.  By Form SO4 dated 11^th January 2010, the Applicant sought to enforce paragraph 10 of the Directions on the grounds that Camden had failed to comply with paragraphs 3(a) to 3(f) of those Directions.

17.  This application came before Tribunal Judge Mary Kane, who made a Decision on 16^th January 2010 that was received by Camden (according to the date stamp) on 21^st January 2010. She decided that Camden had failed to comply with the Directions numbered 3(a) to 3(f), and that no request had been made for an extension. Having considered the matter carefully and seeing no reason why the application should not be granted, on applying Rule 8(4)(a), she made an Order that Camden be barred from taking further part in the proceedings.

18.  I have considered the documentation that was before Judge Kane, and I have reached the conclusion that she was entitled to conclude that there had been a failure on the part of Camden to comply with the Directions. Her subsequent decision to bar the respondent from taking further part in the proceedings was a decision within the discretion made available to her by the Rules. It may not necessarily have been a decision that other Judges would have made, but it was neither an irrational nor perverse decision so as to amount to an error of law.

19.  Unfortunately, the Order made by Judge Kane makes no reference to Rules 8(6), (7) and Rule 8(8)(b). Rule 8(6) states that if the proceedings, or part of them, have been struck out under …8(4)(a), the applicant may apply for the proceedings, or part of them, to be reinstated. By Rule 8(7), an application under Rule 8(6) must be made in writing and received by the Tribunal within 28 days after the date on which the Tribunal sent notification of the striking out to that party. By Rule 8(8)(b), a reference to an application for the reinstatement of proceedings which have been struck out is to be read as a reference to an application for the lifting of the bar on the respondent from taking further part in the proceedings.

20.  I recommend that Orders under Rule 8(4)(a) refer specifically to Rules 8(6), (7) and 8 (8)(b).

21.  In this case, the failure to refer to Rule 8(6) makes little difference, because it would appear that Mr Read, having received Tribunal Judge Kane’s Order dated 16^th January 2010, emailed a Ms Carol Harrison at the Tribunal administrative offices on 22^nd January 2010, stating as follows: “Camden has complied with all the Directions set out in 3a - 3f and we are totally mystified why this banning order has been placed on the Local Authority”.

22.  This email was treated by the First Tier Tribunal as an application under Rule 8(6) and Rule 8(7). By a letter dated 26^th January 2010, Tribunal Judge Goldthorpe stated that she had considered Camden’s representations, she confirmed that she had reviewed the case file, considered further information provided in response to her request for clarification about the Local Authority’s documentation (it is not entirely clear from the documents I have seen what this further information refers to), and she can see no reason for revoking the “strike out.”

23.  She dealt with each matter in detail. As to Directions 3(a), 3(b) and 3(c), Camden had stated that the documents were in the bundle and that therefore the Direction had been complied with. She rejected this submission and wrote as follows:

“Letters of varying dates from 4 primary schools are cited as evidence of compliance with the direction to detail [Camden’s] objections to the mother’s school preference. Three of these letters are refusals of a place for E, based on factors such as full classes, mobility access and space issues. In the case of KTPS a place in the Resource Base for children with severe physical difficulties was also refused on the basis that E does not fit this criteria (sic). The implication is that placement at any of these schools would be contrary to the efficient education of both E and of other children. There is no other document setting out [Camden’s] objections and none of these letters address the issue of whether any steps have been considered to overcome the obstacles to placement.”

24.  As to Direction 3(b) in particular, Judge Goldthorpe itemised the pages in the Bundle that are referred to as evidence of compliance, and noted that Camden state that details of the programme at SACE “will be provided at the hearing.”

25.  So far as Direction 3(d) is concerned, Judge Goldthorpe stated that even if available in the public domain, Judge Bennett had made a Direction which had not been complied with.

26.  Direction (e) stated that the actual terms of the Direction was to send the names of the therapists to the parent’s representative, and even though the Tribunal had received the names, again the Direction had not been complied with.

27.  Judge Goldthorpe concluded that after careful consideration she did not regard the evidence submitted by Camden as sufficient as to amount to compliance with the Directions. The letter said :

“If Judge Bennett had thought there was sufficient evidence at the time of the TCMH presumably he would not have made the directions. I also note the statement that details about programmes at [Camden’s] named school will be provided at the hearing is, in itself, evidence of non-compliance.”

28.  She stated that Camden raised no objections to any of the directions by the deadline of 25^th November 2009, nor did it make any subsequent attempt to apply for a time extension. She saw no reason for revoking the strike out in all of the circumstances.

29.  It would seem that Camden was advised of Judge Goldthorpe’s decision by the Tribunal staff making a telephone call on 26^th January 2010.

30.  Again, and with the benefit of hindsight, I should like to recommend that the First Tier Tribunal ensure that decisions under Rule 8(6) be expressed in the form of an Order, be signed by the Judge who has made the decision rather than being pp’d on his or her behalf in the form of a letter, and specific reference be made to the fact that if the party concerned wishes to take matters further then an application must be made under Part 5 of the Rules (Correcting, setting aside, reviewing and appealing Tribunal decisions), and if any such decision under Part 5 goes against him or her, that an application must be made to the Upper Tribunal for permission to appeal on the basis of an arguable error of law (Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC).

31.  In this case, no application was made by Camden under Part 5. The Hearing took place on 2^nd February 2010. The Tribunal panel was Ms Mary Kane (Tribunal Judge), Mr John Hickson, and Mr Hamid Zagzoule. Ms G was represented by Ms Lawrence of Counsel. There were two witnesses, Mr J, the Assistant Head and SENCO of KTPS, and Ms O, E’s Home Tutor. They had both received witness summonses under the name of Judge Aitken (Deputy Chamber President) but pp‘d by Ms Harrison, which had been issued by the Tribunal on the 26^th January 2010 at the request of Ms G’s solicitors. Mr Read attended the hearing on behalf of Camden.

32.  Paragraph 3 of the Tribunal’s decision deals with how the Tribunal dealt with this situation:

“ Mr Read was aware that the LA had been barred from taking further part in the proceedings, following an order under Rule 8(4)(a). He argued that he had not had the time to respond to this order, that he had been badly advised by the LA’s solicitors and that it was not fair. He accepted that he had been able to ask for the original decision of 16^th January 2010 to be reviewed and that this had resulted in a letter being issued by the Duty Judge of the day which confirmed the original order. He said that the LA had not issued judicial review proceedings as it ‘had not been thought worth doing this.’ Mr Read accepted that he could not continue and left the hearing.”

33.  The reference to judicial review proceedings is of course inaccurate, but he would appear not to have had any legal assistance.

34.  Ms Lawrence and Mr Read were given time to make efforts to agree Parts 2 and 3 of the working documents, and that is exactly what happened. The Working Document was signed by both parties and handed to the Panel by Ms Lawrence. The hearing commenced at 12.35pm. It would appear also that the only two matters that were not agreed were the school to be named in Part 4 and a sentence describing the incident which resulted in E and his brother being withdrawn from school.

35.  The Tribunal correctly identified the issue before it as follows:

“whether, under paragraph 8.57 of the SEN Code of Practice, the LA should comply with Mrs G’s preference for KTPS, or whether it was unsuitable for E’s age, ability, aptitude or special educational needs, or the placement would be incompatible with the efficient education of the other children with whom E would be educated or with the efficient use of resources.”

36.  Mr J had not been provided with the agreed version of the Working Document by Mr Read, and the Tribunal Decision records that he was given time to read it in full. After hearing Mr J give evidence, the Tribunal decided that KTPS could meet E’s needs and granted the appeal. The Tribunal ordered that the school to be named in Part 4 of the Statement of Special Educational Needs shall be the KTPS, London.

37.  Camden then applied under Rule 45 and 46 of the Rules to set aside the decision and/or to seek permission to appeal. The matter was considered by Judge Kane and in a detailed decision dated 18^th March 2010 she refused both applications. As to the application to set aside, Judge Kane stated that the Tribunal could find no evidence in the application that Rule 45(2) had been met. Judge Kane said:

“The representative of the LA was present at the start of the proceedings and it is clear from the Tribunal’s notes that he accepted that he should have appealed the final decision that had barred the LA from participating in the proceedings. He agreed with the Tribunal’s view that he had been badly advised. It would not be in the interests of justice to set the decision aside”.

38.  Judge Kane refused permission to appeal, dealing with each of the grounds of appeal in detail.

 

These proceedings

 

39.  Camden renewed its application for permission to appeal to the Upper Tribunal, and in a determination dated 22^nd April 2010, I directed an oral hearing, as requested by Camden, to consider the application for permission to appeal and directed that if permission to appeal is granted, that the Tribunal make a decision at the same time as to whether to lift the bar imposed by the First-Tier Tribunal to take further part in the proceedings.

40.  An application had been made under Rule 5(3)(m) of the Upper Tribunal Rules to suspend the effect of the decision of the First-Tier Tribunal pending the determination of the application for permission to appeal. On noting that I had been informed that E has been receiving 15 hours of home tuition a week, and is in receipt of Speech and Language therapy at the Greenland Road Health Centre, and on the understanding that these provisions would continue, I suspended the effect of the decision of the First-Tier Tribunal pending determination of the application for permission to appeal.

41.  On 14^th April 2010, Ms G, through her solicitors, John Ford, Solicitors applied to the Administrative Court for an Order providing immediately for school education, and an Order transferring that application and review application to the Upper Tribunal for consideration with any application for permission to appeal to the Upper Tribunal lodged by Camden. An application for interim relief had been refused by Tomlinson J on 1^st April 2010. By Order dated 18^th May 2010, Ouseley J transferred the High Court proceedings for all purposes to the Upper Tribunal for hearing by me on 11^th June 2010.

42.  On 11^th June 2010, Camden was represented by Mr P Oldham QC and Ms G was represented by Ms A Lawrence of Counsel. It was agreed that I would consider the Upper Tribunal application first, and then turn my attention to the matters transferred from the Administrative Court in the light of my decision on the Upper Tribunal issues.

43.  The first matter that I need to decide is whether to grant permission. I have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said:

"…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits."

44.  Applying this approach in the current context, I therefore grant permission and go on to consider whether there has been an error of law.

45.  Mr Oldham, in his skeleton argument, states that the Tribunal made three errors of law, namely

 

(i)              The First Tier Tribunal erred in barring the Local Authority;

(ii)            The First Tier Tribunal erred in refusing the Local Authority’s application for reinstatement; and

(iii)          The First Tier Tribunal erred in allowing the parent’s appeal in any event.

46.    In developing his submission on the first matter, Mr Oldham referred me to Rule 2(1) of the Rules which states that the overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly. He referred in particular to Rule 2(2)(a) which states that “dealing with a case fairly and justly includes” (a) dealing with the case in ways which are proportionate to the importance of the case… and (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings.

47.    Mr Oldham submitted that there was no sign in the decision to bar that any proper account had been taken of the overriding objective as set out in Rule 2. He said that a barring order is a draconian order and is appropriate only where there has been serious defiance of Tribunal Directions. Mr Oldham said that there would have to be willful and repeated disobedience, and the barring order in this case was totally disproportionate and accordingly amounted to an error of law.

48.    I was referred to a Statement of Ms J Alakija, the Planning and Placements Officer for the London Borough of Camden who states in her Witness Statement dated 27^th January 2010 that she assisted Mr Read in the disclosure of documents following the case management conference on 17^th November 2010. She states that all of the documents referred to in paragraph 3 (a) to 3 (f) of Judge Bennett’s Directions “were provided to the Tribunal and Ms G as directed by the Tribunal Judge before the cut off date of 21^st December 2009”.

49.    This witness statement is dated 27^th January 2010, subsequent to the decision of Judge Kane dated 16^th January 2010, and indeed the decision of Judge Goldthorpe under Rule 8(6) dated 26^th January 2010. The witness statement is singularly unhelpful in that it does not address the real issue, namely did Judge Kane err in law.

50.    Mr Oldham submits that she did, because she did not address the issue of proportionality

51.    I have decided that Mr Oldhams’s first challenge has no substance. Rule 2 is headed “Overriding objective and parties’ obligation to co-operate with the Tribunal.” Whilst concentrating on the first part of the heading, Mr Oldham has overlooked the concluding words, namely “the parties’ obligation to co-operate with the Tribunal.” Ms Kane was satisfied that Camden had failed to comply with the Directions, there had been no application for any extension, and having considered the matter she could see no reason why the application should not be granted.

52.    I have made a number of recommendations for improvements to the case management provisions in the light of my reading of this case. The shortcomings identified however, in no way amount to errors of law, either individually or collectively.

53.    I agree with Ms Lawrence that Judge Kane took account of all relevant matters, and her decision to bar Camden from taking further part in the proceedings was not an error of law.

54.    The second challenge is that the Tribunal erred in refusing Camden’s application for reinstatement. Mr Read’s email dated 22^nd January 2010 was treated by the Tribunal as an application for reinstatement in accordance Rule 8(6). Judge Goldthorpe considered all of the matters that were before her and reached a conclusion that can in no way be considered irrational or perverse so as to amount to an error of law. Nothing in the witness statements of Ms Alakija or Mr Read raise matters that were not before Judge Goldthorpe. In any event, the procedure open to Camden was to have challenged Judge Goldthorpe’s decision by seeking permission to appeal to the Upper Tribunal, which if unsuccessful could have been renewed before the Upper Tribunal. This was never done, and it is no excuse for Camden to say that they had no legal advice, or inaccurate legal advice. This local authority deals with the Tribunal on a regular basis, and failure to engage with the Rules cannot be explained away on the basis of lack of familiarity with them. Camden was treated as having applied for reinstatement, and this was refused. This decision cannot be challenged as an error of law. Judge Kane, at the hearing on 2^nd February 2010, was in no way acting unfairly or in breach of any principle of natural justice in refusing Mr Read permission to address the Tribunal. The decision had been taken already and it was not open to Ms Kane to reopen her decision. She asked him to spend time outside the Tribunal with Ms Lawrence to see whether the Working Document could be agreed between them, and this approach was appropriate bearing in mind the decision that had been taken by Judge Goldthorpe refusing reinstatement.

55.    Turning to the Decision itself, Mr Oldham challenges the Decision on both procedural and substantive grounds.

56.    So far as the procedural grounds are concerned, he points out that Mr J had been witnessed summoned by the Tribunal, and he had been served with only one working day’s notice. He submitted that this was highly undesirable. In addition, he pointed to the fact that Mr J was without papers, and that he was in any event unwell and the Tribunal was aware of his illness.

57.    So far as the witness summons is concerned, Mr Oldham conceded that Rule 16(2)(a) states that a summons must give the person required to attend 14 days’ notice of the hearing, or such shorter period as the tribunal may direct. The witness summons complies with Rule 16 of the Rules, although I recommend that all witness summonses issued under Rule 16 should be signed by a Judge rather than being pp’d (as happened in this case) on his or her behalf.

58.    I turn to the issues relating to Mr J’s health on the day of the hearing. Mr Read in his witness statement dated 21^st May 2010 states that “Mr J was unwell but considered it important to attend. He had not had the opportunity to read any of the case statement or familiarise himself with the case before the hearing.”

59.    Mr J himself, in his Statement dated 21^st May 2010 and signed by him states as follows:

“para 7…The only document I had seen pertaining to E was six months earlier when the LA sent a consultation document with (sic) included a draft SEN statement on E. At the Tribunal I realized that there were 252 pages of evidence, some of which I had never seen before, which was not sent to me by either the Tribunal or the solicitors for Ms G who had requested my attendance at the hearing. I felt quite disadvantaged by this.

Para 8. I arrived at the Tribunal on the morning of 2^nd February and met the SEN manager with 3 LA witnesses. The hearing was listed to commence at 10.00 am but it only started at about 1 pm….I was told to wait. I was feeling unwell all morning due to food poisoning the night before and in fact had to drag myself to the Tribunal as I was worried about the consequences if I do not attend as warned in the witness summons. I did inform the Panel that I was feeling unwell.

Para 9. At about 1 pm I was called into the hearing room together with Ms G, her witnesses and her barrister. I was the first witness to be questioned. I was placed in a very difficult position of having to make judgments in response to questions without having access to the relevant reports and information which everyone else in the room appear to have. When I raised this halfway through my cross-examination by the trial judge, she gave me 5 minutes to briefly read the Working Document (Statement of SEN). I was not shown any of the other documents in the 252 page trial bundle which put me at a disadvantage as I was not aware of the whole picture although I was then asked my views and opinions on E. I was cross-examined for about an hour after which I was told by the trial judge that I was free to go”.

60.    Mr Oldham, in his skeleton, submits that is unfair and detrimental to the interests of justice and to the interests of both parties to the appeal to treat Mr J in what he calls a high handed manner. He points to the fact that (i) he was witnessed summonsed with one business day to prepare; (ii) he was sent no papers, (iii) he was given only a few minutes on the day of the hearing to digest the working document; (iv) he was not shown the bundle of documents on the day or given sufficient opportunity to digest them; (v) he was questioned by the Tribunal for an hour in circumstances where all but he had seen a great deal of written information bearing on the case; and (vi) he was put through the ordeal of the hearing while plainly ill. Mr Oldham concludes that it is hard to think of a clearer example of the flouting of the rules of natural justice, and demonstrate irrationality so as to amount to an error of law.

61.    Ms Lawrence pointed out, correctly in my opinion, that the request was made to the Tribunal to summons Mr J to give evidence solely because Camden had not complied with the Directions, and had been barred under Rule 8. There was only one key issue for the Tribunal to consider, and Mr J was singularly qualified to assist the Tribunal in reaching its decision. If Mr J had been unable to attend, there would almost certainly have had to be an adjournment, which of course would have been wholly undesirable. In any event, Ms Lawrence pointed to a letter that Ms G’s solicitors had sent to Mr J dated 22^nd January 2010 informing him that he was about to receive a witness summons. I have to say that I agree with Ms Lawrence that Mr J, as a witness summoned by the Tribunal, had time to reflect on the provision that the school could offer, and provide the Tribunal with information on issues such as the number of children in the classes. It has to be remembered also that he had met Ms G in April 2009, and he clearly had knowledge about E, as he states in his witness statement. He was being asked of course to provide the Tribunal with an opinion on matters that were within his direct knowledge, as the Assistant Head and SEN co-ordinator at KTPS where he has been for just under six years. I have formed the view that there was no unfairness in providing Mr J with the short period that he had in this case to prepare for the hearing.

62.    So far as the illness is concerned, it is clearly unfortunate that Mr J was not feeling well that day. It would appear that both the Clerk to the Tribunal and the Tribunal Chair (Judge Kane) were made aware of Mr J’s state of health that morning.

63.    The Decision does not refer to Mr J’s state of health, but Judge Kane deals with these matters in her Decision under Rule 45 dated 18^th March 2010 refusing permission to appeal. She notes that the Tribunal asked Mr Read to make sure that Mr J was well enough to give evidence. In this same document, Judge Kane states that when the hearing resumed at 12.50, Mr J was asked if Mr Read had given him a copy of the working document. He told the Tribunal that he had not seen it, and the hearing was again adjourned to enable him to read it. Judge Kane states that when he came back into the hearing, Mr J was asked if he felt well enough to give evidence and whether he had sufficient time to have read all the papers. Judge Kane goes on to state that Mr J agreed that he was ready to give evidence.

64.    I have no reason to doubt that the sequence of events as recounted by Judge Kane is an accurate account of what occurred at the hearing. Mr Oldham presents no medical evidence in support of Mr J’s illness. I reject this aspect of Mr Oldham’s submissions as being completely devoid of any merit whatsoever.

65.    Mr Oldham then submits that the Tribunal decision itself shows a number of substantive errors, so as to amount to an error of law. They are summarised as follows:

(i)              physical disability

(ii)            application of the wrong test for the naming of the school

(iii)           ignoring or misunderstanding the evidence and reaching findings for which there was no evidence

(iv)           a failure to deal with the expert evidence

(v)            a lack of reasons

66.    Mr J, in his witness statement dated 21^st May 2010 states that there are glaring inaccuracies in the Decision when it refers to his evidence. As to the issue of physical disability, in paragraph 10 of the witness statement, Mr J states that he told the Tribunal that “we felt that E did not meet the criteria as his physical disability was not his primary need and that his learning/speech and language issues would have a significantly more impact on his life.”

67.    I do not accept that there are “glaring inaccuracies” in the Tribunal’s decision on this aspect of the appeal. The Tribunal had in front of it, an agreed Working Document, which sets out in considerable detail E’s physical and learning/speech and language disabilities. Judge Kane, in the Decision refusing permission to appeal, states that it relied on the educational psychologist’s report in the dossier together with other reports indicating that E’s needs are associated with developmental problems because of the damage to his cerebellum. Mr J’s evidence, even if it was not recorded accurately (and this is challenged by Judge Kane in her reasons for Refusal of permission to appeal where she states that it was recorded accurately) is of course only part of the evidence that the Tribunal had to consider.

68.    Issues (ii), (iii) and (iv) are aspects of the same challenge, and they are without substance. The only issue before the Tribunal was whether KTPS could meet E’s needs and whether his attendance at the school would be incompatible with the efficient education of other children with whom E would be educated or the efficient use of resources [Education Act 1996 (Schedule 27 para 3(3)) and paragraph 8.57 of the SEN Code of Practice]. This test is set out clearly and precisely in paragraph 9 of the Decision. The submission that the Tribunal applied the wrong test because it refers to “impossibility” in paragraph 11 of the Decision is a submission without merit. Paragraph 11 is a summary of Mr J’s evidence, and no more than that.

69.    The Decision states that Mr J was asked about the Resource Base at KTPS, and that with the necessary provision, KTPS could meet all E’s needs as described in the Working Document, and that it would not be incompatible with the efficient education of the other children with whom E would be educated or with the efficient use of resources. Accordingly, and as set out in paragraph 14 of the Decision, the appeal is granted.

70.    The Decision refusing permission to appeal states that Mr J was specifically asked, several times, whether the inclusion of E in the class would be suitable and compatible with the efficient education of the other children with whom E would be educated or with the efficient use of resources, and that he reiterated that the school could meet E’s needs. Insofar as his witness statement now states that he did not say that, and that the Tribunal misinterpreted what he did say, I totally reject this as a basis upon which it can be suggested that there is an error of law.

71.    As Ms Lawrence submits, in order to accept the arguments advanced by Mr Oldham on behalf of Camden I would have to make a finding that the Tribunal had made up Mr J’s evidence. I wholly reject this suggestion. In so far as there is any independent evidence of what Mr J said, I have seen a witness statement of a Ms Callaghan, who was present at the hearing as a supporter of Ms G. She does not remember Mr J saying that educating E at KTPS would impact on the quality of education for the other children in the class. I agree entirely with Ms Lawrence that it is not reasonable to contend, some four months after the hearing, that the Tribunal has misunderstood, misheard or totally ignored the evidence of a witness that is summarised by the Tribunal in a straightforward and precise manner in its Decision. I am satisfied that the summary of the evidence of Mr J in the Decision is a fair reflection of what was said. It was written down in the Decision which was dated 10^th February 2010 within eight days of the hearing, and when the evidence would have been clearly recollected. The Decision dated 18^th March 2010 on the Rule 45 application is supportive of my conclusion that the challenges (ii), (iii) and (iv) set out above have no substance.

72.    Finally, Mr Oldham challenges the Decision for lack of reasons. I reject also the “reason challenge”. The leading authority on such challenges is Meek v Birmingham City Council [1987] IRLR 250 which of course deals with Employment tribunals. Sir Thomas Bingham MR said:

“…[the Tribunal decision] must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost.”

73.    It is relevant also to cite the dictum of Baroness Hale in AH (Sudan) and others v Secretary of State for the Home Department [2007] UKHL 49, when she said

74.                “…This is an expert tribunal; charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialized field the tribunal will have got it right…Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

75.    Both of these judgements are cited by Waller LJ in the context of a SENDIST case in H v East Sussex County Council [2009] EWCA 249. I am satisfied that in this case, the Tribunal’s Decision is fully in accordance with the requirements in Meek, and I approach the decision adopting the reasoning of Baroness Hale in AH(Sudan).

76.    Accordingly, and for the reasons as set out above, I dismiss Camden’s appeal.

 

 

The judicial review proceedings

 

77.    I agreed with Counsel that I would send my decision out to both Counsel when it was written in draft form, to enable the parties to reflect on my Decision prior to coming back to the Tribunal on the 19^th July 2010, for the Decision to be formally handed down.

78.    It was submitted by Ms Lawrence that E is not receiving the amount of home tuition or Occupational Therapy that I had been given to understand was being provided, when I suspended under Rule 5(3)(m) of the Upper Tribunal Rules the effect of the Order of the First Tier Tribunal pending the determination of the appeal. At the conclusion of the hearing, Mr Oldham said that Camden would undertake to see whether occupational therapy could be provided for E, and to inform Solicitors for E on this matter as soon as possible. Whilst I welcome this undertaking by Camden, the effect of my Decision is that as from the date that the Decision is formally handed down, namely 19^th July 2010, I have lifted the suspension of the effect of the Decision of the First Tier Tribunal.

79.    Camden therefore had some time between the receipt of the draft Decision, and the hearing on 19^th July 2010, to engage with Ms G and her lawyers, and with KTPS, to put in place arrangements for E to join the School as from the beginning of the 2010/2011 School year, and to provide for Occupational Therapy as specified within part 3 of the Statement. Arrangements had been made by 19^th July 2010, and thus the judicial review proceedings were dealt with by way of a consent order on 19^th July 2010.

80.    The Order I make in relation to the Tribunal proceedings is to grant permission to appeal, and dismiss the appeal in case number HS/947/2010.

 

An application for a declaratory relief

 

81.    At the resumed hearing on 19^th July 2010, the respondent to the Upper Tribunal proceedings sought an application for declaratory relief. Although there is of course a power to make such an Order in the judicial review proceedings, I very much doubt that such a power exists in the Upper Tribunal proceedings. In this case, in any event, the respondent did not cross appeal, and she therefore has no right to seek such relief as a remedy, and it would have to be exercised by way of a discretionary inherent power.

82.    Ms Lawrence drew my attention to the case Hampshire County Council v JP [2009] UKUT 239 (AAC) as authority for the proposition that the Upper Tribunal has this power. I do not read that decision in this way, and the final paragraph of that decision does no more than say “it is sufficient that the parties should know that we consider the reasoning of the First-Tier Tribunal to be flawed and inadequate so that its finding that N required residential education need not be given weight in any review of N’s special educational needs.” That is not a Declaratory Order.

83.    So far as the judicial review proceedings are concerned, declaratory relief is only appropriate if there is clear evidence of the exercise of State power in an arbitrary, oppressive or abusive manner. There has to be conduct so unfair as to be an abuse of power (R v IRC, exparte Preston [1985] AC 835). Ms Lawrence sought to persuade me that the conduct of the local authority in this case went beyond “unreasonable conduct.”

84.    I am not so persuaded. There is no real evidence presented to me that by pursuing the appeal before the Upper Tribunal, and by seeking a stay of the effect of the First Tier Tribunal decision, there was an abuse of power and process for the sole purpose of stopping E receiving the special education needs provision he required to meet his special educational needs.

85.    The respondent submits further that this is “a case which calls the Upper Tribunal to issue a declaration to the effect that such behaviour on the part of the local authority…constitutes an attempt to undermine the Tribunal system in order to gain some advantage, known only to itself in this case.”

86.    Again, I reject this proposition. The local authority was entitled to bring appeal proceedings, and the procedural challenges were in my view arguable.

 

Costs

 

87.    I turn finally to the question of costs. Ms Lawrence sought an application for costs to be made on an indemnity basis under Rule 10.

88.    I heard argument from both Ms Lawrence and Mr Oldham as whether there should be an Order for Costs, and if so as to its extent. I have reached the view that the costs associated with the production of the evidence of Mr J that relates to the substantive challenge to the decision, as I set it out in paragraph 71 above, constituted “unreasonable behaviour” on the part of the local authority. Accordingly, the respondent is entitled to costs arising out of this aspect of the case.

89.    So far as the other aspects of the case are concerned, and in particular the issues surrounding procedural defects in case management and the conduct of the hearing, I make no award of costs. It cannot be said that the local authority acted unreasonably in bringing the proceedings on this basis.

90.    Thus, on an undertaking that the respondent complies with Rule 10(3) not later than 14 days from 19^th July 2010, I make an order for costs, but limited to the costs associated with the evidence of Mr J in the substantive challenges to the decision of the First Tier Tribunal.

91.    Costs in relation to the judicial review proceedings were agreed between the parties by consent.

92.    The amount of the costs may be ascertained in accordance with Rule 10(6) and 10(7) on a standard basis. I do not agree with Ms Lawrence that this is a case for costs to be awarded on an indemnity basis.

 

 

 

(Signed on the Original)

His Honour Judge David Pearl

Judge of the Upper Tribunal

19^th July 2010

 

 

BETWEEN:-

 

LONDON BOROUGH OF CAMDEN

 

and

 

MS G

 

 

and

 

IN THE HIGH COURT OF JUSTICE

QUEENS’ BENCH DIVISION

ADMINISTRATIVE COURT

CO ref CO/4229/2010

 

In the matter of an application for Judicial Review

 

 

BETWEEN:-

 

MS G

 

and

 

LONDON BOROUGH OF CAMDEN

 

 

 

 

Judgement of His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal.

 

 

 

 

 

 

 

His Honour Judge David Pearl

Sitting as a Judge of the Upper Tribunal.

(and for the avoidance of doubt in relation to the Judicial review proceedings, in the event that it is suggested that some of the matters on judicial review have not been transferred by Ouseley J by his Order dated 18^th May 2010, sitting also as a Deputy High Court Judge in relation CO/4229/2010)