Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

 

The DECISION of the Upper Tribunal is to allow the appeal by the appellant.

 

The decision of the First-tier Tribunal taken on 3 February 2010 under file reference 09-50089 involves an error on a point of law. The tribunal’s decision is set aside.

 

The case is remitted to a differently constituted First-tier Tribunal (Health Education and Social Care Chamber).

 

DIRECTIONS:

 

1.           No-one who was a member of the tribunal of 3 February 2010 is to be a member of the new tribunal that reconsiders the appeal.

2.           The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal.

3.           A Tribunal Judge of the First-tier Tribunal should give appropriate case management directions for the rehearing as soon as practicable.

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

 

REASONS FOR DECISION

 

Introduction

1. This appeal concerns a decision of the First-tier Tribunal (Health Education and Social Care Chamber) about a young boy now aged 13 (“C”). This decision is written in a way that should avoid any identification of the child concerned, but for the avoidance of doubt I direct there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of the appeal (Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), Rule 14).

2. C’s parents lodged a claim under the Disability Discrimination Act 1995 with the First-tier Tribunal, arguing that the governing body of what was then C’s school had unlawfully discriminated against him in providing him with education and associated services and in excluding him from school. C has a statement of special educational needs.

 

3. In their original application, lodged on 22 July 2009, C’s parents explained that C “has mental health issues which cause him huge anxieties and is receiving counselling”. They set out various ways in which they claimed the school had unfairly discriminated against him. In terms of the remedies sought, C’s parents stated that they wanted C’s permanent exclusion revoked (although they did not wish him to return to that school), along with a written apology from the school and a commitment to staff training for working with children with special needs.

The pre-hearing process

 

4. There was then some delay in defining the scope of the appeal with sufficient precision. On 23 November 2009 a tribunal judge issued case management directions for the further conduct of the case. A full hearing was scheduled for 3 February 2010.

 

5. Those case management directions included the following direction addressed specifically to the school (“the Responsible Body”):

 

“3. The Responsible Body is to send to the Tribunal and [C’s parents] any additional information on which it intends to rely so that it is received by 5 pm on 21 December 2009, to include if not already provided:

 

a) Clarification whether it disputes [C] has a disability within the ambit of the Disability Discrimination Act 1995 and if so its reasons,

 

b) Its submissions on the remedies sought

 

c) Details of witnesses to attend the hearing.”

 

6. The school wrote on 15 December 2009 in response to those directions. In particular, and as regards Direction 3(a), the school’s letter stated “The school does not dispute [C] has a disability as he receives support from CAMHS” (i.e. the NHS’s Child and Adolescent Mental Health Services). There is nothing on file to suggest that the school changed its position on that point before the hearing or indeed at the hearing.

 

The First-tier Tribunal’s hearing and decision

 

7. The First-tier Tribunal sat on 3 February 2010 to hear the appeal. C’s parents attended but were not represented. The school was represented by the Head Teacher, who had three witnesses. The tribunal noted that the permanent exclusion had been rescinded but that the questions of the alleged less favourable treatment and failure to make reasonable adjustments remained live issues.

 

8. Additionally, the tribunal decided to consider as a preliminary point whether C was in fact disabled within the definition in section 1 of the 1995 Act. The tribunal’s decision to take that point as a preliminary issue is understandable, given that C’s statement of special educational needs did not state a diagnosis, although it did describe C’s needs.

 

9. The tribunal heard evidence from the parties and considered the evidence in the tribunal bundle, concluding that C had no clinically recognised diagnosis of mental impairment, although he had “emotional outbursts and high levels of anxiety which can impact on his behaviour”. The tribunal also found that C was able to make choices as to how he behaved and that he could reasonably be expected to modify his behaviour.

 

10. The tribunal considered further the definition of disability in the 1995 Act and the relevant case law. It concluded that C was not disabled within the meaning of section 1 of the 1995 Act “because he does not have a mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”. On that basis, the claim was dismissed.

 

11. The tribunal’s statement of reasons does not explain the procedure which the tribunal adopted in taking the disability issue as a preliminary point. However, when refusing permission to appeal, the tribunal judge helpfully explained as follows in his additional observations:

 

“We fully understood during the hearing that because [C’s parents] were not represented, they needed to be given every opportunity to put all relevant points on the preliminary issue once we had identified it. We adjourned for a short time and arranged for copies of the relevant parts of the DDA Guidance to be provided to them, so that they could read and consider them before we resumed the hearing. By this means, we sought to make proceedings as fair as possible within obvious limitations”.

 

The proceedings before the Upper Tribunal

 

12. C’s parents plainly felt that they did not get a fair hearing. In short, their primary reason for appealing was that “We never got a hearing because at the hearing we were asked to prove disability”. In other words, C’s parents feel that they were denied a “proper hearing” because of the tribunal’s decision to take the disability issue as a preliminary point.

 

13. C’s parents have also asked for an oral hearing of this appeal before the Upper Tribunal. This is because they take issue with some of the evidence provided by the school to the First-tier Tribunal and, in their words, “we still do not have a satisfactory reason why C was kept out of lessons for so long”.

 

14. It is important to recall that the Upper Tribunal’s jurisdiction is confined to deciding whether the decision of the First-tier Tribunal discloses any error on “any point of law”. The Upper Tribunal can only interfere with the decision of the First-tier Tribunal if it got the law or the procedure wrong. I cannot substitute my own view of the facts for that taken by the tribunal – not least as the tribunal is an expert tribunal in this specialist field.

 

15. For the reason that follows, however, I have concluded that the First-tier Tribunal’s decision involves an error of law. In those circumstances, an oral hearing at this stage is unnecessary. The appropriate place for the issues that C’s parents wish to be ventilated is a fresh hearing before a differently constituted First-tier Tribunal. Such a hearing can also be arranged more quickly and at a more convenient venue than a hearing before the Upper Tribunal. The First-tier Tribunal is also the appropriate body to adjudicate on the factual issues involved in this claim.

 

16. The school has commented briefly on the appeal to the Upper Tribunal but made no observations on the way in which the First-tier Tribunal dealt with the disability issue as a preliminary point.

 

The reason why the First-tier Tribunal’s decision involves an error of law

 

17. In principle the First-tier Tribunal was quite entitled to take as a preliminary point the issue of whether C had a relevant disability for the purposes of the Disability Discrimination Act 1995. I also bear in mind that the First-tier Tribunal has an inquisitorial function. As such, it is not bound by concessions made by the parties. In any event, just because a young person is seeing CAMHS does not necessarily mean that he or she is disabled within the terms of the 1995 Act. The tribunal may therefore need to investigate matters for itself.

 

18. However, that investigation must be undertaken fairly. The tribunal’s procedure is governed by the overriding objective of dealing with cases “fairly and justly” (Rule 2(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699)). That objective includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” (Rule 2(2)(c)).

 

19. I am not satisfied that C’s parents had a fair hearing in this case. I accept that the tribunal acted in good faith in adjourning for a short period as described at paragraph 11 above and then reconvening. However, there are two factors in this case which, taken together, have led me to the conclusion that there was a denial of a fair hearing.

 

20. The first was the school’s explicit admission, in response to the tribunal case management direction, that C was disabled within the meaning of the Act. As explained above, that concession did not bind the tribunal. However, the position must be considered from the point of view of the parents. They had first lodged their claim in July 2009. In December 2009 the school had made that concession. The parents presumably went to the hearing in February 2010 expecting to argue the case on the basis of (what were in legal terms) the less favourable treatment and the failure to make reasonable adjustments issues, and not the prior issue of whether Campbell was disabled in the sense required by the legislation.

 

21. If the school’s response to the tribunal’s case management direction had been, for example, “we deny that C is disabled for the following reasons…” or “we are not admitting C is disabled and put the parents to proof that he is”, then clearly his parents should have expected that they would need to prove that point at the hearing. But nobody had previously questioned that aspect of the matter, and so they were effectively taken by surprise on the day of the hearing.

 

22. This “ambush factor” also relates to the second consideration. The procedure that the tribunal adopted might well have been sufficient for a fair hearing if C’s parents had been represented. A competent representative, given a short adjournment, would almost certainly have been able to form a view as to how best to present the case on the day, given the tribunal’s indication that it wished to deal with disability as a preliminary issue, and to re-adjust his or her arguments accordingly. Such a representative would also have considered whether to apply for an adjournment. There might be other written evidence or other witnesses that the parents might wish to call to address the disability issue. Indeed, there is no evidence that the tribunal considered the possibility of an adjournment to another day to allow the parents to prepare this aspect of the case fully.

 

23. Furthermore, these parents were unrepresented. In J & C Cosgrove trading as Fisher Tours [2010] UKUT 147 (AAC), an appeal to the Upper Tribunal from a decision of a Traffic Commissioner, the appellants were taken by surprise by a new allegation. The Upper Tribunal held that the Traffic Commissioner had acted unfairly by going ahead with the hearing without an adjournment, even though the appellants had not made such an application. The Upper Tribunal noted that “there is a special duty upon Traffic Commissioners when dealing with unrepresented operators” (at paragraph 5) to consider whether an adjournment is needed; a similar duty applies to First-tier Tribunals dealing with unrepresented parents in the special needs jurisdiction.

 

24. As Sedley J. (as he then was) explained in R v Cheshire County Council, ex parte C [1998] ELR 66, “The power to adjourn is a fundamental aspect of the obligation resting on all decision-making bodies to hear both sides, for this necessarily means giving each party a fair opportunity to put its case and to contest what others are saying.” That was a special educational needs case in which a request for an adjournment had been unfairly refused.

 

25. The case of R v Thames Magistrates' Court ex parte Polemis [1974] 1 WLR 1371 is also instructive, even if the context was very different. A Greek captain of a ship was served with a summons at 10.30 a.m. to appear in the magistrates’ court at 2 p.m. the same day to answer a pollution charge, when the ship was due to sail at 9 p.m. that evening. An application for an adjournment was refused, although the case was put back to 4 p.m., when the charge was found proven. The Divisional Court ruled that the captain had been denied a fair hearing. According to Lord Widgery CJ:

“…the opportunity to present a case to the court is not confined to being given an opportunity to stand up and say what you want to say; it necessarily extends to a reasonable opportunity to prepare your case before you are called upon to present it. A mere allocation of court time is of no value if the party in question is deprived of the opportunity of getting his tackle in order and being able to present his case in the fullest sense” (at 1375B).

 

26. My conclusion therefore is that the First-tier Tribunal erred in law in the procedure by which it dealt with the preliminary point. In the particular circumstances of this case, where the parents were taken by surprise at the hearing and were unrepresented, it was not sufficient to direct a short adjournment and provide the parents with a copy of the Guidance on the 1995 Act to read in the waiting room. For that reason, and that reason alone, I set aside the tribunal’s decision and remit the case for a fresh hearing subject to the Directions above.

 

27. I must stress that the issue of whether C is indeed disabled and, if so, whether there has been a breach of the 1995 Act is entirely a matter for the new tribunal.

 

The format of the First-tier Tribunal’s decision

 

28. I simply draw attention to the fact that the First-tier Tribunal’s continued reliance on the former SENDIST decision format has been the subject of adverse comment in a number of previous Upper Tribunal decisions: see e.g. PR v Hertfordshire County Council [2009] UKUT 295 (AAC), DC v London Borough of Ealing [2010] UKUT 10 (AAC) and HJ v London Borough of Brent (SEN) [2010] UKUT 15 (AAC). The persistent failure to follow the Senior President’s Practice Statement on the format of tribunal decisions does not in itself mean that this tribunal erred in law. Compliance is, however, a matter of good judicial practice.

 

29. It is also good judicial practice for brief details of important procedural points to be dealt with in the tribunal’s Statement of Reasons. On that basis the passage which appeared in the tribunal judge’s refusal of permission to appeal (see paragraph 11 above) could helpfully have been included in the original Statement of Reasons.

 

Conclusion

 

30. For the reasons explained above, I allow this appeal. The case needs to be re-heard before a different First-tier Tribunal. For the avoidance of doubt, I must again make it clear that the fact that this appeal has succeeded on a point of law, and on what was essentially a procedural point, should not be taken as any indication as to the eventual outcome of the rehearing. The merits of the claim under the 1995 Act are entirely a matter for the new tribunal, which will consider the evidence afresh.

 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 25 August 2010 Judge of the Upper Tribunal