Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

The application to set aside the direction suspending the effect of the decision of the Special Educational Needs Tribunal for Wales under reference S00420110 is refused.

Upper Tribunal Judge Levenson’s directions of 2 September 2010 are varied as follows.

There will be no sequential written observations. There will instead be an oral hearing of this appeal at short notice in Cardiff or Swansea with written arguments exchanged between the parties and notified to the tribunal at least working five days before the hearing.

Reasons for Decision

A.          Who’s who

‘The authority’ is Carmarthenshire County Council, the local education authority for Thomas;
‘The parents’ are the parents of Thomas; and
‘The tribunal’ is the Special Educational Needs Tribunal for Wales;

B.          Who represented who

Mr John McKendrick of counsel was instructed by Watkins Solicitors and represented the parents.

Ms Joanne Clement of counsel was instructed by and represented the authority.

C.          What I have to decide

1.           Rule 5(3)(m) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI No 2698) gives the Upper Tribunal power to suspend the effect of a decision pending the determination of an application for permission to appeal, and of any appeal. Upper Tribunal Judge Levenson exercised that power. This is an application to set aside the judge’s direction imposing the suspension. The issue for me is: should I lift the suspension?

D.          Procedural history

2.           On 16 June 2010, the tribunal heard an appeal about the special educational needs of Thomas. He was born on 6 November 2000 and has a diagnosis of autistic spectrum disorder. The parents were the appellant and the authority was the respondent. The parties were agreed that Thomas’ current placement was not suitable. The authority proposed a specialist unit attached to a local primary school. The parents proposed a residential placement at a specialist school.

3.           The tribunal gave its reasons on 12 July 2010. It accepted the parents’ argument that Thomas needed a waking day curriculum and a residential placement.

4.           The authority applied to the tribunal for permission to appeal to the Upper Tribunal on 6 August 2010. As the tribunal has no power to suspend the effect of its own decision, the authority applied to the Upper Tribunal for a suspension. In the meantime, the authority offered three options to Thomas’s parents: (i) to return to his last school with an individual, full-time specialist ASD teacher; (ii) to take up the place proposed by the authority with additional support; or (iii) to be taught at home by a full-time specialist ASD teacher. It has since offered a fourth option, which is any combination of the other three.

5.           On 20 August 2010, Upper Tribunal Judge Levenson gave this direction:

‘1. In accordance with the provisions of rule 7(1) and 7(2)(a) of the above Rules I waive the requirement in rule 21(2)(b) that would require the tribunal below to have refused or not admitted an application for permission to appeal to the Upper Tribunal in this case. I also waive any other requirement that would prevent me making these Directions.

2. I direct that the application to the Upper Tribunal for a stay of the effect of the decision of the tribunal below be treated also as an application to the Upper Tribunal for permission to appeal to the Upper Tribunal.

3. I will in due course rule on these applications but I wish to give the respondents an opportunity to comment first, in particular on the application for a stay.

4. Accordingly, the papers are to be copied and sent to the respondents, who will have 7 days from the issue of these Directions to them to comment to the Upper Tribunal on the application for a stay. They may also comment on the merits of the application for permission to appeal. At the end of this period the file is to be referred back to me (or, in my absence, to another Judge of the Upper Tribunal) as a matter of urgency.

5. Because of the need to resolve this matter as soon as possible, I direct under rule 12(4) of The Tribunal Procedure (Upper Tribunal) Rules 2008 that the disregard of August in rule 12(3) shall not apply to compliance with paragraph 4 above, so that days in August do count as part of the 7 days referred to in paragraph 4.’

6.           On 27 August 2010, the tribunal refused the authority permission to appeal.

7.           On 28 August 2010, the parents opposed the application for a suspension, arguing that none of the options offered by the authority was acceptable.

8.           On 2 September 2010, the judge gave the authority permission to appeal and suspended the effect of the tribunal’s decision:

‘1. In accordance with the provisions of rule 5(3)(m) of the above Rules, I suspend until the earlier of (a) a further order of the Upper Tribunal or (b) the final disposal of this appeal, the effect of the decision of the Special Educational Needs Tribunal Wales in respect of naming the particular school that the relevant child is to attend. This is without prejudice to any placement that might be agreed between the parties.

2. I give the above Direction because the nature of the decision of the tribunal below would necessitate significant changes, the school named by the tribunal being residential and a considerable distance from where the relevant child has been living with his parents. The interim arrangements being offered by the appellant appear to be reasonable on a temporary basis. Should this appeal succeed and a different school ultimately be named, the effect would be doubly disruptive in the absence of the above suspension.’

9.           On 3 September 2010, the parents applied for an oral hearing to challenge the suspension. This took place on 17 September 2010 before me at Cardiff’s Civil Justice Centre.

E.          The power to suspend

10.        This is conferred by rule 5(3)(m) of the Upper Tribunal Rules:

‘5 Case management powers

(1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.

(2) The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.

(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may-

…

(m) in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal; …’

In the CPR, ‘stay’ would be used rather than suspension.

11.        This power is discretionary and, accordingly, it may be exercised subject to conditions. The options offered by the authority are relevant to whether, and the terms on which, the tribunal’s decision should be suspended. Like all powers under the rules, it must be interpreted and applied in the light of the overriding objective in rule 2.

F.           The criteria for exercising the power to suspend

12.        Mr McKendrick argued that there were six principles that governed the exercise of the power. (i) The applicant must make a strong prima facie, or at least, a very clear case, that the decision under appeal is wrong. (ii) There must be good reason or substantial grounds to exercise the power to suspend. Suspension is not automatic. (iii) The tribunal must apply a balance of convenience or lesser injustice or danger test. An undertaking as to damages cannot be relevant in the special educational needs jurisdiction. (iv) The interests of the child must be considered. (v) The public interest must also be considered. (vi) The authority’s delay in applying for the proceedings is also relevant.

13.        Ms Clement disagreed on only two points. On (i), she argued that it was only necessary for the authority to show that it had an arguable case or a reasonable prospect of success, those terms being synonymous. On (v), she doubted whether the public interest was a separate factor.

G.         The caselaw

14.        Some of the cases cited by Mr McKendrick concern interim relief. I explain below why I do not consider they are relevant to the power to suspend. It is sufficient to record that the principles governing interim relief in public law cases were set out by Cranston J in R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin) at [6]-[11].

15.        R (H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 concerned the suspension of a discharge of a mental patient by a tribunal. Dyson LJ set out the special considerations that apply to the loss of liberty at [47]. Those concerns do not arise in this case. That case demonstrates the danger of trying to identify general principles that apply to all cases rather than focusing on the issues that are relevant in a particular case or type of case.

16.        Neither counsel referred me to the decision of Sullivan LJ in Department for the Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257, but it is cited in the White Book under CPR rule 52(7). The judge set out the correct approach at [8]:

‘A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking the stay, and, if such grounds are established, a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted.’

17.        Applying Sullivan LJ’s approach, I have to ask two questions. The first is: have solid grounds been put forward by the authority for the effect of the tribunal’s decision to be suspended? If it has, the second question is: on balance should the effect of the decision be suspended?

18.        Authorities are unlikely to be helpful in cases involving a judgment of balance, as so much depends on the facts and circumstances of the particular case. Mr McKendrick cited The Mayor and Burgesses of the London Borough of Camden v Hodin [1996] ELR 430. The facts were strikingly similar to this case. The case concerned R. She was currently at T school. Her parents wanted her to go to DHR school, while her local education authority wanted her to go to JT school. The tribunal decided that she should be placed in DHR school. The authority lodged an appeal with the High Court, just within the time limit, and applied for a stay of the tribunal’s decision. Collins J refused the application for a stay. He made the following points:

·       He could not say whether the appeal was likely to succeed; the matter was in the balance.

·       R’s mother was in a precarious mental state, which was not being helped by the proceedings in the High Court and which might well have an adverse effect on R.

·       The authority had left its appeal until the last moment; R’s mother had in the meantime believed that the tribunal’s decision would be implement.

·       If R went to DHR school and the case was remitted to the tribunal, it might decide that she would stay there rather than experience further upheaval. That would deprive the authority of the fruits of its victory.

·       There was never finality, as a statement was always open to the possibility of a change.

The judge said he had to make ‘very much a finely balanced decision’ on limited material. His reasons illustrate the balancing exercise identified by Sullivan LJ:

‘I bear in mind that a stay is by no means automatic, and that a stay should not be generally granted unless there is good reason to do so. It seems to me that on balance, and it is very much on balance, this is not a case where it would be right for me to impose a stay. It seems to that, although I recognise the risk that if R goes to [DHR school], this may pre-empt the decision of the fresh tribunal if the council win, on the balance, that is less of a danger than the danger if R has now to go to [T school], that may adversely affect her educational achievement, because on any view [T] was not the place where it was expected that she should go. I recognise that it is only anticipated to be temporary, but no one before the tribunal took the view that she ought to stay any longer at [T]. Although, again, I recognise that there is a degree of continuity and she is aware of the position, it seems to me that, on balance, it will be in her interests if she is able to start at [DHR school], and I do not think that a short period there will or should pre-empt the decision in due course.

‘It seems to me that although that is a factor which no doubt the tribunal will take into account, indeed would be bound to take into account, none the less she will not have, by then, been at [DHR] for long enough, for it to be thought that that was to be given very much weight if, on all the other evidence, the fresh tribunal felt that this was a case where the council had made out their case. In all the circumstances, as I say, with some concerns as to which was the right decision in this case, I have on balance come down in favour of not granting a stay.’

19.        Despite the similarities, Ms Clement identified differences between the two cases. I do not set them out, because it is not relevant to consider them. The nature of the issue does not require me to distinguish Hodin. In applying the balancing exercise, Collins J did not lay down a principle of law; the case merely illustrates the application of the balancing exercise that has to be undertaken. Each exercise must be undertaken afresh for each case; comparison is not appropriate. Authorities on the exercise of judgment are relevant for the principles they establish, not for the way that they are applied.

H.         The likelihood of the authority’s appeal being allowed

20.        The strength of the authority’s appeal is not a threshold criterion. I reject the argument of both counsel. I accept, of course, the authority of the cases that Mr McKendrick cited. I also accept that there is some similarity between interim relief and suspension. However, the power to suspend must be interpreted and applied in its context. It may have to be exercised before the grounds of appeal are known. Suppose a mental health case in which the First-tier Tribunal discharges the patient with reasons to be given later. The hospital authority and the Secretary of State for Justice wish to suspend the effect of the decision. They want to apply immediately, but they cannot formulate grounds for appeal without knowing the tribunal’s reasons. On both counsel’s argument, the power would not arise until some threshold had been established. The power may also arise before the Upper Tribunal is in a position to make a judgment on the grounds. This is what happened in Hodin and it did not stop Collins J from undertaking a balancing exercise: see the final paragraph on page 432. It also happened in R (Kent County Council) v H [2006] EWHC 3591 (Admin) and it did not stop Calvert Smith J from undertaking a balancing exercise: see [7] and [10].

21.        This does not mean that the chances of the appeal succeeding are irrelevant. In some cases, the appeal may be almost certain to succeed. Suppose (as has happened) that the judge who decided a case dies before writing the reasons. If that case came before the Upper Tribunal on appeal, it would be almost inevitable that the tribunal’s decision would be set aside. At the other extreme, permission to appeal may have been given (as Lord Woolf MR envisaged in Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 at 1538) to allow the Upper Tribunal to make a precedent or give guidance. In that case, it might be highly unlikely that the tribunal’s decision would be set aside. Considerations like these can be taken into account as the background or context of the balancing exercise or in the exercise of the tribunal’s discretion.

22.        I undertook to read the tribunal’s reasons, the grounds of appeal and the parents’ response to those grounds. Having done so, I find myself in the same position as did Collins and Calvert Smith JJ.

23.        When he gave permission to appeal, Judge Levenson wrote that the grounds were reasonably arguable. Mr McKendrick emphasised the word ‘reasonably’. Ms Clement pointed out that the test for permission was whether the grounds were arguable, which meant whether there was a reasonable prospect of success. I accept Ms Clement’s argument. Lord Woolf MR twice said that the test for permission was whether there was a realistic, as opposed to a fanciful or unrealistic, prospect of success: Smith v Cosworth Casting Processes Ltd [1997] 1 WLR 1538 at 1538 and Swain v Hillman [2001] 1 All ER 91 at 92. Judges write to be understood; they do not necessarily assume that readers will be aware of the way that terms of art are interpreted. I am sure that Judge Levenson meant no more than that the grounds of appeal satisfied the normal criterion for permission. I attach no particular legal significance to his use of the word ‘reasonably’. It was probably no more than an attempt to make his decision more easily understood by the parents.

I.            Solid ground and balancing exercise

24.        I accept that the authorities treat these as separate stages and the former is a threshold criterion that must be satisfied before the latter is undertaken. In practice, I doubt whether that distinction can always be easily maintained or has practical value.

25.        A threshold criterion may deter those who have no real case for a stay. It can be convenient from a case handling perspective, as it allows a judge to dispose of the case without undertaking a detailed balancing exercise. However, in most cases that are the subject of argument, the solid ground test could easily be absorbed into the balancing exercise. Could there be a case in which a suspension was justified on balance without there being a solid ground for it?

26.        If I need to find a solid ground in this case, it exists in the need to act at all times in the best interests of Thomas.

J.           When and how is the public interest relevant?

27.        The public interest is always a relevant factor to the extent that suspension is not automatic. It is in the public interest that decisions of courts and tribunals should generally be obeyed until they are set aside on review or appeal.

28.        There may also be additional public interest considerations. Suppose that a teacher has been barred from working with children and the First-tier Tribunal allows the appeal against that decision. The public interest in the protection of children may justify exercising the power to suspend. It does not matter whether that is seen as: (a) a factor to be taken into account in the balancing exercise; or (b) a separate factor to considered as an independent, perhaps preliminary, stage; or (c) a matter to be taken into account in the general exercise of the discretion. What is clear to me is that, in this case, the public interest does not have any additional significance. The focus here, as both counsel submitted, is on the interests of Thomas and his education.

K.          The effect of delay

29.        This may be a relevant factor. It is certainly relevant if has any effect on the interests of the child. Collins J took it into account in Hodin, where it had had an effect on the mental health of the child’s mother and, potentially, on her child. And in H, Calvert Smith J took into account that the delay had meant the loss of a whole term’s education for the child.

30.        Mr McKendrick criticised the time taken by the authority in applying for permission to appeal and for the effect of the decision to be suspended. I do not accept those criticisms. The authority was faced with the difficulty that the tribunal has no power to suspend the effect of its own decision. The Upper Tribunal has the power, but only on application for permission or an appeal. The power was only exercised thanks to Judge Levenson’s procedural initiatives. Given the difficulties presented by the combination of the two sets of rules of procedure, I consider that the authority cannot be criticised for the speed with which it has acted since the tribunal gave its reasons for decision.

31.        Thomas’ mother has provided a witness statement setting out the effect that the appeal and the stay are having on Thomas. I have no hesitation in accepting her entirely plausible account. As far as Thomas is concerned, he is moving to another school; he has had a leaving party. He has also visited the school identified by the tribunal and is looking forward to getting his uniform and so on. I am sure that the turn of events would be disappointing for any child of his age. I am also sure that the impact on Thomas personally has been considerably greater, given his autism. However, no child can be protected from uncertainty. As Collins J said in Hodin at 433: ‘there is never any finality’ in special educational needs cases. Despite the undoubted impact that the uncertainty has produced for Thomas, I consider that it is a relative minor factor in the overall balancing exercise that I have to undertake.

L.          The balancing exercise - arguments

32.        I do not set out the detailed arguments of each counsel on this exercise. In particular, I do not set out the detailed exchanges on the details of the options offered by the authority. I merely summarise counsel’s arguments like this.

33.        Mr McKendrick argued that continuing the suspension would encourage other authorities to seek suspensions if a decision went against them. The only way to take account of Thomas’ educational needs was to send him to the school identified by the tribunal. It specialised in children with autism and could later manage the transition out of the school if necessary. If the suspension remained in effect, there would be change whatever the ultimate decision on placement. The options offered by the authority could not take account of Thomas’ needs even to the extent that they had been agreed. He produced evidence from a Consultant Educational and Neuropsychologist that was critical of all those options. He drew attention to the proposed ASD teacher’s lack of recent teaching experience and expressed concerns at a single individual being Thomas’ sole teacher. He asked how long it would be before there was a definitive decision on placement. If the Upper Tribunal remitted the case for rehearing, the authority would want to produce more evidence and call witnesses for whom a mutually convenient date for hearing would have to be found. Finally, he mentioned that the parents had another child whose case would shortly come before the tribunal.

34.        Ms Clement took me through the benefits of the first two options. They ensured continuity of home, family, community, friends, environment, carers, and social activities. Returning to his last school would ensure continuity of school and avoid any need to travel to school. The school unit proposed by the local authority specialised in pupils with autism and could manage the transition if Thomas was ultimately placed elsewhere. On home education, she said that this was the least preferred of the options and that it could be arranged in a community venue. As to the proposed ASD teacher, she told me that the person was the carer of her own child who has autism. As to the difficulties that Thomas had encountered at his last school, she pointed out they had occurred before Thomas’ diagnosis and that the head teacher had now been made aware of his responsibilities. Finally, she mentioned the concern expressed by the authority in Hodin: the authority would be denied any chance of future success if the suspension were lifted. She told me that, from her experience, a tribunal would not move Thomas if he had settled into the school identified by the previous tribunal.

M.        The balancing exercise – my analysis

35.        I direct myself according to the law set out above and take into account the factors, such as delay, that I have already mentioned. The place for Thomas at the school identified by the tribunal remains open, so I do not need to take the possible loss of this into account.

36.        The question is: what is in Thomas’ best interests in the interim until his placement is finally decided? My answer is that the effect of the tribunal’s decision should be suspended. My reasons differ slightly from those given by Judge Levenson. The differences relate only to matters of detail, not to the ultimate substance of the matter.

37.        Thomas is going to change schools. The authority had accepted that his last school was not suitable. It is only suitable in the interim with the addition of temporary support for Thomas. The issue, as I see it, is how to keep the disruption caused by the inevitable change to a minimum.

38.        Assume first that the suspension remains and Thomas takes one of the options offered by the authority. That will involve a degree of change, but he will retain a considerable degree of continuity in all those matters listed by Ms Clement. If he is ultimately placed in the specialist ASD unit, there will be some change. Even if he is already there (option (ii)), he will lose of the additional support he was receiving in the interim. The tribunal might, of course, decide that it should remain. If he is ultimately placed in his parents’ preferred school, he will have to move there with all the change that necessarily entails. If he is at the specialist ASD unit, the staff there will be able to assist in the management of the change in co-ordination with the staff at his new school.

39.        Assume now that the suspension is lifted and Thomas goes to the school preferred by his parents. That will involve considerable change. If he is ultimately placed there, there will be no further disruption. If he is ultimately placed in the specialist ASD unit, there will be the disruption of leaving and settling into a new school, albeit that this will be closer to his home environment.

40.        On balance, it is in Thomas’ interests for the suspension to remain. That is my judgment looking at Thomas’ education interests. It is also my judgment looking at Thomas’ interests as a child and as a child with autism. There is a limit to the explanation that is possible for judgments like this. The best I can say is this. This is a judgment at a point of transition for Thomas. It is interim. He has autism and children with autism can be affected by change, especially if it is not handled appropriately. Some change is inevitable. In my judgment, it is better for Thomas to avoid the considerable disruption in all the matters involved in a residential placement unless that it is necessary.

41.        I make that judgment in light of the options offered by the local authority. They are not perfect, nor are they presented as such. They do, though, provide appropriate short-term provision to protect Thomas’ interests until his ultimate placement is known. I have been impressed by the prompt and strenuous efforts made by the staff of the authority to identify ways in which Thomas’ educational needs can be catered for and their willingness to make arrangements that take account of the parents’ needs and concerns.

42.        I take account of the criticisms of the options proposed by the authority. However, there is, and can be, no ideal solution until Thomas’ placement is finally decided. The criticisms overlook their temporary nature. I have no control over the listing of the case for rehearing if the appeal is allowed. But I am certain the tribunal is well aware of the importance of hearing cases as soon as possible and I sensed at the hearing a desire by both the authority and the parents to co-operate in bringing the matter to a conclusion as soon as possible.

43.        No one before the tribunal argued that Thomas’ last school was suitable. However, the authority’s proposal makes additional provision. It is not a case of offering something that was previously rejected. And it is, after all, just one of a range of options on offer.

44.        I do not accept Mr McKendrick’s concern that continuing this suspension could encourage other authorities to apply for suspensions. Why should I deny the authority a suspension to which it is entitled in order to discourage others from applying? How can I justify doing something that is not in Thomas’ best interests in order to provide a deterrent for other cases? Anyway, the authorities in other cases must satisfy the criteria set out by Sullivan LJ. If the criteria are satisfied, why should the power not be exercised? In any event, this case is different from the normal run of cases that I see in the Upper Tribunal on account of the coincidence of timing: the case is being heard at the very moment when Thomas would be changing schools in any event and involves a move into a residential placement.

45.        I take no account of the fact that the school identified by the tribunal is a long way from Thomas’ home. The distance is not significant in itself, as he can keep in touch with family and friends by phone and the internet. He also has family in the area. It is the change to a residential placement that is significant.

46.        I was at one stage tempted by Mr McKendrick’s argument that lifting the suspension would mean that Thomas could go to the school identified by the tribunal. That might be his ultimate placement. That would be the only outcome in which there would be no change for Thomas. I should, therefore, favour that approach. On reflection, I have decided that that is not a way of balancing the competing interests; it is a way of avoiding doing so. It is a factor that I have to take into account, but it is not decisive.

47.        I do not accept that the authority would be denied all chance of future success if the suspension were lifted. There is the point made by Collins J that continuity would not be particularly significant over the time scale involved. And there is the point made by Mr McKendrick that the school would have the experience to manage the transfer out of the school if necessary.

N.          Disposal

48.        I refuse the application to set aside the direction suspending the effect of the tribunal’s decision.

49.        I do not formally make the options offered by the authority conditions of the suspension. Doing so would crystallise them and hamper adjustments that the parents and the authority might consider appropriate. The availability of such interim measures for Thomas’ education is, though, essential to my deciding to continue the suspension.

50.        It is not for me to decide between those options. That is a matter for the parents. What is clear is that it cannot be in Thomas’ interests to have no education in the meantime.

51.        Both counsel agreed that it would be better for these proceedings to be included as quickly as possible. That involves: (i) abandoning the exchange of written arguments; and (ii) holding an oral hearing at short notice; (iii) in Cardiff of Swansea; (iv) with written arguments exchanged five days before the hearing. There is no need for a formal application to vary Judge Levenson’s directions on submissions. The Upper Tribunal can act of its own initiative. I would have liked to consult Judge Levenson before giving these directions, but he is on leave.

O.         The approach of counsel

52.        Finally, I must thank Mr McKendrick and Ms Clement. The hearing was set up at short notice and they were not able to exchange arguments and authorities in advance. I am grateful to them for the quality of their arguments and for their flexible and constructive approach to the proceedings.

 

Signed on original on 20 September 2010

Edward Jacobs Upper Tribunal Judge