Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (dated 3 July
2012 under reference SE919/12/00028) involved the making of an error in point
of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals,
Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for
rehearing by a differently constituted panel.
Reasons
for Decision
A.
Introduction
1.
This case concerns the special education needs of William, who was born
in December 1995. He had a statement from June 2005. He was offered a place at
a college, which I shall call ‘NHC’, from September 2012. The local authority
decided that it would cease to maintain his statement, as his needs could be
met by NHC. His parents appealed against that decision to the First-tier
Tribunal, which allowed the appeal. I gave the local authority permission to
appeal to the Upper Tribunal and the parties’ submissions are now complete.
B.
The legislation and the Code of Practice
2.
Paragraph 11 of Schedule 27 to the Education Act 19096 provides:
(1) A local authority may
cease to maintain a statement only if it is no longer necessary to maintain it.
(2) Where the local authority
determine to cease to maintain a statement-
…
(b) the
parent of the child may appeal to the Tribunal against the determination.
…
(3) On an appeal under this
paragraph the Tribunal may-
(a) dismiss the appeal, or
(b) order
the local authority to continue to maintain the statement in its existing form
or with such amendments …
as the
Tribunal may determine.
3.
The Special Educational Needs Code of Practice for England was issued under section 313 of the 1996 Act. Local authorities must have regard to its
provisions. The relevant provisions are:
Ceasing to maintain the statement
8:117 There should be no
assumption that, once the LEA has made a statement, they should maintain that
statement until they are no longer responsible for the young person. Statements
should be maintained only when necessary. But a decision to cease to maintain a
statement should be made only after careful consideration by the LEA of all the
circumstances and after close consultation with parents.
8:118 The LEA may cease to
maintain a statement for a child only if they believe that it is no longer
necessary to maintain it. The LEA should consider the results of the recent
annual reviews, whether the objectives of the statement have been achieved, and
whether the child’s needs could be met in future within the resources of
mainstream schools within the area without the need for continuing LEA
oversight. The LEA should always, therefore, consider whether, notwithstanding
the achievement of some, or even all, of the objectives in the statement, the
child’s progress will be halted or reversed if the special educational
provision specified in the statement or modified provision which justified the
maintenance of a statement were not made.
8:119 The LEA may consider
whether the following apply when considering if it is necessary to maintain a
statement:
a have
the objectives of the statement have been met
b can
the child’s needs be met in future within the resources of a mainstream school
c do
the child’s special educational needs no longer significantly impede access to
the National curriculum
d does
the child no longer require daily adult supervision or substantial adaptation
of teaching materials to access the curriculum fully
e can
the child cope with everyday social interaction at school
f has
the child no significant self-help difficulties that require more provision
than is normally available within the school.
C.
The tribunal’s reasoning
4.
After dealing with preliminary matters and setting out paragraphs from
the Code of Practice, the tribunal set out the background and turned to the Consideration
of Evidence and Submissions with our Conclusions. This section contains its
conclusions. Specifically:
·
On paragraph 8.117, the tribunal found that the local authority ‘did
not make its decision … after careful consideration of all the circumstances.’
It found that ‘there was no consultation whatsoever’ between the local
authority and William’s parents. The authority had not heeded the parents’
wishes and had passed responsibility to a body, which based its decision on the
wrong test.
·
On paragraph 8.118, the tribunal found that the local authority
had not taken into account William’s most recent annual review, which recorded
only slight improvement and stated that the authority should continue to
maintain the statement.
·
On paragraph 8.119, the tribunal considered evidence relevant to
each criterion and found that the local authority has not ‘fully and properly
considered the criteria’ in this paragraph.
The tribunal then dealt with subsequent procedural
paragraphs in the Code before deciding:
Given all of the above, we are
not satisfied that the LA followed the correct procedure when it made its
decision to cease to maintain William’s statement and accordingly, we do not
consider its decision can stand.
5.
This summary shows that the tribunal saw its task as reviewing whether
or not the local authority had made its decision to cease to maintain William’s
statement in the proper way.
D.
The application to the First-tier Tribunal for permission to appeal
6.
The local authority applied for permission to appeal on three grounds.
They all effectively make the same point: the tribunal failed to have any
regard to the provision that could be made for William at NHC.
7.
The first ground was that the tribunal had failed to consider whether
NHC could meet William’s needs and, consequently, had not considered the
statutory question whether it was necessary to maintain the statement.
8.
The second ground was that the tribunal had failed to explain why it was
necessary to maintain the statement despite the provision available at NHC.
9.
The third ground was that it was irrational to find that the local
authority had not complied with the Code of Practice. This led the tribunal to
fail to take any account of the provision that would be available to William at
NHC.
E.
The refusal of permission by the First-tier Tribunal
10. The
First-tier Tribunal refused the local authority permission to appeal. The
judge, who had not presided at the hearing, commented on the authority’s first
ground of appeal:
The LA were found to have
essentially ignored the Code of Practice in deciding to cease to maintain
William’s statement in no small part due to the concessions to that effect by
the LA during the hearing. In doing so the Tribunal allowed the parents appeal.
The LA say that the Tribunal should have considered whether his special educational
needs can be met at their identified college. This is an entirely false
proposition because in order for the Tribunal to consider that, the parents
have to have been allowed to engage in the process set out in the Code of
Practice which the LA abjectly failed to do as that may have led the LA to form
a different view.
F.
The application to the Upper Tribunal for permission to appeal
11. The
local authority repeated its grounds of appeal to the Upper Tribunal, adding a
comment on the passage I have just quoted. After repeating that the local
authority had complied with the Code, it added that it does not have to be
applied rigidly and that it is only necessary to have regard to it. It ended by
repeating that the tribunal had failed to address the correct statutory
question of necessity.
12. I
gave permission to appeal saying:
I would put the underlying issue
like this. The tribunal set aside the local authority’s decision for failing to
follow the correct procedures. What it should have done was to decide afresh
whether the authority should maintain a statement in respect of William.
G.
The parents’ response
13. The
parents’ representative made two submissions:
·
The tribunal did not take the wrong approach.
·
If it did, it nonetheless came to the right decision.
14. The
representative argued that the tribunal did not take the wrong approach, saying
that it could decide the case without referring to the provision available at
NHC and that it can properly be assumed that it did have regard to that
provision. As to the specific criticisms in the local authority’s third ground
of appeal, the tribunal was entitled to find as it did.
15. The
representative argued that the tribunal came to the right decision in any event,
inviting the Upper Tribunal to re-make the decision under section 12(2)(b)(ii)
of the Tribunals, Courts and Enforcement Act 2007. He argued that a decision is
needed urgently and there is no reason to justify remitting the case to the
First-tier Tribunal.
H.
The local authority’s reply
16. These
effectively reassert the grounds of appeal.
I.
Analysis
17. The
First-tier Tribunal is a statutory tribunal, constituted under section 3(1) of
the Tribunals, Courts and Enforcement Act 2007.
18. As
such it has only the jurisdiction conferred on it by statute.
19. In
this case, its jurisdiction was conferred by paragraph 11 of Schedule 27 to the
Education Act 1996.
20. That
jurisdiction was to decide whether the local authority’s decision to cease to
maintain a statement for William was correct in fact and law.
21. The
issue that arose under paragraph 11(1) was whether it was no longer necessary
to maintain the statement.
22. The
tribunal’s powers were set by paragraph 11(3). That provision gives the
tribunal only two options. One is to dismiss the appeal, which has the effect
that a statement is no longer maintained. The only other power is to order the
statement to continue as it stands or with amendments.
23. The
form of disposal is dictated by the tribunal’s decision on the issue it has to
decide. That issue is whether it was any longer necessary to maintain a statement.
The local authority was not an independent decision-maker on that issue.
Accordingly, the tribunal’s task is to consider that issue afresh on the fact
and on the law, on the evidence and on the submissions before it. Its task is
not to undertake a review of the decision-making process.
24. There
may be cases in which the local authority’s decision-making process is so
flawed that it can properly be said that no decision has been made. To adopt
the language of the Tribunal of Commissioners in R(IB) 2/04 at [72]:
‘there may be some decisions … which have so little coherence or connection to
legal powers that they do not amount to decisions’. Those cases are rare,
indeed exceptional. The distinction that has to be drawn is between (a) a
decision that was taken without following the correct procedure or without
following it correctly and (b) a procedure that was so flawed as to prevent any
decision having been made. In this case, the tribunal’s reasoning fell within
(a) rather than (b). It could not properly have been otherwise. In those
circumstances, the tribunal was obliged to decide the statutory issue before
it.
25. [It
is not necessary for me to decide how a tribunal should proceed if it decides
that no decision has been given, what form of order it should make, or what the
effect of that order might be.]
26. It
is clear beyond doubt that the tribunal in this case did not deal with the
statutory issue before it. Its reasoning and its conclusion, which I have
quoted at the end of paragraph 4, show that it concerned itself exclusively
with the process by the which the local authority made its decision. I accept
that in the following, final paragraph the tribunal did set out the effect of
its decision, but that is all.
27. Leaving
aside the issue of whether or not the local authority had regard to the
Code, which is not quite how the tribunal expressed itself, I accept the local
authority’s first and second grounds of appeal that the tribunal failed to take
account of the provision that NHC could make for William. As I said in my grant
of permission to appeal, those are merely manifestations of the tribunal’s
fundamental failure to address the statutory issue it had to decide.
J.
Disposal
28. I
set the tribunal’s decision aside and remit the case for rehearing.
29. I
decided not to hold an oral hearing and not to re-make the decision. I did not
consider that an oral hearing was necessary, as the issues had been
sufficiently explored in submissions from competent representatives for both
parties. I did not consider it appropriate to re-make my decision, because that
would benefit from the knowledge and experience of the panel members of the
First-tier Tribunal, which is not available to the Upper Tribunal.
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Signed on original
on 7 February 2013
|
Edward Jacobs
Upper Tribunal Judge
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