IN THE UPPER TRIBUNAL Case No  JR/1092/2011

ADMINISTRATIVE APPEALS CHAMBER

Before His Honour Judge David Pearl

Sitting as a Judge of the Upper Tribunal

Attendances:

For the Appellant. Mr D Lawson of Counsel instructed by Levenes Solicitors.

Decision: 

(i)              The Decision of the First-tier Tribunal dated 13^th January 2011 is quashed in accordance with s 15(1)(c) Tribunals, Courts and Enforcement Act  2007. Applying s 17(b) of the Act, the Upper Tribunal substitutes its own decision for the decision in question; namely that an independent specialist school, the NS School be named in Part 4 of the Statement as the school to be attended by G, rather than MS School.

(ii)            The Interested Party shall, within 7 days of the date that this Order is received, issue an amended statement of SEN in its current form save that Part 4 shall read “An independent specialist school, the NS” (the full title of the school appearing in the amended Statement)

(iii)           There shall be no publication of any matter likely to lead to the identification of the Claimant or her son in respect of these proceedings.

(iv)          The Claimant’s costs be subject to a detailed Community Legal Service funding assessment in accordance with the CLS (Costs) Regulations 2000.

(v)            The Claimant’s application for costs be made by way of written application to HH Judge David Pearl in accordance with Rule 10 of the Upper Tribunal Rules, and the Interested Party’s Response to the application to be filed and served within 28 days of the application.

REASONS FOR DECISION

1. This case concerns the special educational provisions for G, who was born on 17^th May 1996 and who is the son of the Appellant in this appeal. The Statement which is under challenge names MS School, and the Appellant wishes G to attend NS School. I am told that he now attends NS School under charitable arrangements.
2. This case has had a very unfortunate procedural history. The First-tier Tribunal first heard the appeal in this case at a hearing on 15^th July 2010 when it was part-heard. The hearing concluded on 8^th September 2010. The Tribunal issued a decision dated 13^th September 2010 (the First Decision). The Tribunal agreed with the Interested Party that MS School should be named in Part 4 of the Statement, and it rejected the preference of the Appellant for NS School.
3. The Appellant applied to the First-tier Tribunal for permission to appeal this decision to the Upper Tribunal. The application came before Judge Saffer. He exercised the Review powers of the First-tier Tribunal under Rule 47(1) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 in accordance with Rule 49. He was satisfied that there was an error of law in the decision. He said “I accordingly find that there are errors of law which are so central to the decision that the decision cannot stand.”
4. Accordingly, he set aside the decision and granted “the application for a review as there is an error of law.” He specifically directed that there be a rehearing, and that the first panel (Richard White, Pam Richardson and Ronald Marks) shall not sit on the “fresh hearing.” In so directing, Judge Saffer has applied s9(4(c) TCEA 2007  and s 9(5)(a) TCEA 2007, namely to set the decision aside and to direct that a freshly constituted Tribunal re-decide the matter concerned.
5. The matter then went before another panel (Michael Sherwin, Peter Cates, Sheila Higgins), who heard the case on 25^th November 2010. By a decision dated 13^th January 2011 (the Second Decision), the Tribunal purported to “dismiss the review and uphold the previous Tribunal’s decision in respect of Part 4 of G’s statement.”
6. The Appellant appealed this second decision, and the First-tier Tribunal refused to grant permission to appeal (a decision of Judge Saffer dated 1^st March 2011). The application for permission to appeal was renewed before the Upper Tribunal.
7. When I considered the matter on the papers before me, I decided, in a Decision dated 14^th April 2011, that all of the decisions made by the First-tier Tribunal were “excluded” decisions and in consequence they could not be appealed to the Upper Tribunal.
8. In particular, I held that the decision of Judge Saffer dated 13^th October 2011 is an excluded decision by virtue of s 11(5)(d)(iii)TCEA 2007, the First Decision dated 13^th September 2011 is an excluded decision by virtue of s 11(5)(e) TCEA 2007, and the Second Decision dated 13^th January 2011 is excluded by virtue of s 11(5)(d)(ii) TCEA 2007.
9. I went on to consider whether relief could be granted by way of judicial review, and, as it was arguable that errors of law had been made in the Second Decision, I granted permission for there to be judicial review of the Second Decision dated 13^th January 2011.
10. The analysis contained in my Notice of Determination of the Application for permission to Appeal dated 14^th April 2011 has not been challenged. Mr Lawson, on behalf of the Appellant, accepts this analysis. The Interested Party in its grounds for resisting the appeal dated 23^rd May 2011 does not address the issue. The First-tier Tribunal, in its Summary of Grounds for opposing the application for permission, expressly accepts the conclusion that “the decisions so far made are excluded decisions.”
11. I have no doubt whatsoever but that the Second Decision must be quashed. The second Tribunal was expressly directed to rehear the appeal, and to make a decision based upon a hearing de novo. There was simply no basis upon which the Tribunal could, as it is put in the concluding sentence, “dismiss the review and uphold the previous Tribunal’s decision in respect of Part 4 of G’s statement.” The previous Tribunal’s decision had been set aside by the Order of Judge Saffer, and the matter was directed to be reheard.
12. I agree with Mr Lawson who appeared on behalf of the Appellant that the lack of a re-hearing as directed by Judge Saffer in his direction dated 13^th October 2010 means that the Appellant has never had the benefit of the procedure that Judge Saffer considered appropriate. Thus, it must follow that the Second Decision must be quashed as there is an error of law.
13. I have considered whether the Upper Tribunal should exercise the power to redecide the matter under s 17(1)(b). The Interested Party chose not to send a representative to the hearing, and I am satisfied that it had appropriate notice of the time and place for the hearing.
14.  The Interested Party submitted a document “Grounds for Resisting an Appeal”, where it addresses two issues, namely Disruptive incidents  at MS School and the suitability of the curriculum for G in MS School.
15. As to the first matter, the “Grounds for Resisting an Appeal” acknowledges that the number of exclusions is at a high level. There is clear evidence from a speech and educational psychologist, and an audiologist, that G would not be able to cope with this. I have seen no evidence from the papers that this is not the case.
16.  As to the second matter, the unsuitability of the curriculum, it is accepted evidence that MS School does not offer science in years 10 and 11. It is accepted evidence that science is G’s best and favourite subject.
17. G’s statement in Parts 2 and 3 provides that he should access to the National Curriculum, which includes teaching in science. I agree with Mr Lawson that the Second Decision, by naming MS School in Part 4 failed to order a placement that was capable of making the provision set out in Parts 2 and 3.
18. Thus, if I were to direct a remittal, there would be only one decision, namely to name NS School in Part 4. There is therefore no point in directing a remittal, and, in the exercise of my discretion, it is appropriate for the Upper Tribunal to re-decide the matter. I do so, by directing that an independent specialist school, the NS School, be named in Part 4 of the Statement as the school to be attended by G, rather than MS School
19. Given the absence of any representative of the Interested Party at the hearing, I have decided that this is not an appropriate case in which to engage in the complex jurisdictional questions surrounding, for instance, “what is a review?”, what is a “re-decision?”, whether, as suggested by the Respondent, an application can be made by the Appellant to the Upper Tribunal to renew the application for permission to appeal under Rule 21(2)(b) of the Upper Tribunal Rules, and the proper interpretation of ss 9(9) and 9(10) of the TCEA 2007. These and other issues must await another case.

His Honour Judge David Pearl

Sitting as a Judge of the Upper Tribunal

September 10^th 2011