IN THE UPPER TRIBUNAL Case No  HS/3337/2013

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The appeal is allowed.   The decision of the First-tier Tribunal on 5 July 2013 under reference SE936/13/00075 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (HESC Chamber) for redetermination by a differently constituted tribunal in accordance with the directions set out in paragraph 33 of the Reasons.

 

REASONS FOR DECISION

 

1. Zoe (not her real name) was born in January 2001.  She commenced Year 7 in September 2012 and attended a maintained mainstream school, pursuant to her statement of special educational needs (“statement”).  Her mother, the appellant in these proceedings, wished her statement to be amended so as to name a maintained special school for pupils with moderate learning difficulties.  Following an annual review held on 4 February 2013 the local authority refused to amend Zoe’s statement.  That decision was communicated by letter dated 8 April 2013, which referred to the right to appeal against the decision and to the time limit of two months from the date of receipt of the letter.  On 3 July 2013 (and thus between 3 and 4 weeks after the deadline) Zoe’s mother, at that time acting in person, sought to appeal against that decision and provided, with her application form, an explanation for the delay.  An extension of time was refused on 5 July 2013 on the papers and the appeal was not admitted.  It is that decision which Zoe’s mother seeks to challenge in the present proceedings.  An application to the First-tier Tribunal for permission to appeal was refused on 12 August 2013.  (The appellant had meanwhile provided further evidence about the family and organisational difficulties which had led to the delay but as the question was whether the decision of 5 July was arguably in error of law, that was not affected by the additional evidence.) I gave permission to appeal on 13 September 2013. The local authority remains neutral in the matter and is content to abide by the Upper Tribunal’s decision.  The appellant’s case has been fully put with the assistance of solicitors.  In those circumstances I consider that the appeal can properly be determined on the papers.

 

2. After setting out the chronology and referring to the relevant rule containing the time limit, the decision under appeal continued (emphasis in original):

 

“2. The Local Authority decision letter made this time limit clear.

 

3. On 3^rd July 2013 an explanation for the delay was received with the parent’s case.  That explanation was this:

 

“Whilst it is expected that my appeal should have been submitted within two months of the decision, the Educational Psychologist report, which should have been submitted to the authority prior to their decision being made was in fact prepared afterwards. As a result, it has been necessary to obtain as much historical information from archives, some of which dates back to 2010.  It is documentation which supports this appeal by way of providing consistency in acknowledging my daughters educational need and as such it is pertinent to this appeal. It is for this reason that I would request that this appeal still be considered.”

 

4. The parent was fully aware of the time limits.  I bear in mind also that the parent has a right after 9 months (i.e. in April  2014) to appeal a failure to amend a statement on review.

 

5. Although it is suggested that the parent was awaiting a further report that is not a good reason to delay an appeal, given that a parent has 2   months in which to act, the report from the Educational Psychologist was in any event in the parent's hands by early May, still well within the time to file an appeal, thereafter the parent chose to research more historical evidence and waited another 2 months to actually file the appeal.

 

6. There is power for the Tribunal to consider whether to extend the time for complying with such a time limit by virtue of rule 5(3) of the Rules.  That power must be exercised in accordance with the overriding objective of dealing with cases fairly and justly.

 

7. It would not be fair or just to extend the time limit when the time limit is clearly stated, after such a period of time in the absence of good reasons. The application is refused, the appeal is rejected as being out of time.”

 

3. The reference to an educational psychologist’s report was to a report by the local authority’s educational psychologist, who had seen Zoe on 6 March 2013. The report was dated 20 April 2013 and sent to the appellant by letter postmarked 2 May 2013.  The tenor of the report was to make recommendations to support Zoe where she was: it did not support a move to a special school.  The case the appellant wanted to put was in essence that the authority’s concerns that Zoe might be academically too strong for a special school placement were based on an over-optimistic view of her performance when her difficulties, as evidenced in documentation over the previous three years or so, were considered. So far as I can see, there was no contemporaneous professional recommendation which in terms supported a move to the special school.

 

4. The standard application form used in special educational needs cases does not have any field directed to whether time should be extended so as to admit a late application (whether dealing with the reasons for delay, or otherwise.)

 

5. The guidance provided by the First-tier Tribunal to prospective appellants is in the form of a publication entitled “How to appeal against a SEN decision – a guide for parents” (September 2010).  Although on the relevant website at http://www.justice.gov.uk/forms/hmcts/send (accessed on 3 January 2014) reference is made to a publication described as having a date of January 2011, if one follows the link, one is taken back to the September 2010 version, which I therefore assume has been (and is) the relevant one.  As regards time limits it provides:

 

“You must appeal within two months of the date on the letter from the local authority giving you their decision.

 

If you miss this deadline, you can ask for an extension.  You do this by:

 

● sending off your appeal as soon as you can; and

● explaining in your appeal why it is late.

 

We may allow an extension if there are special circumstances which meant that you were not able to send your appeal in time.”

 

6. The relevant law is contained in the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008/2699 (as amended) (“the HESC Rules”).  References to rules are unless otherwise indicated to the relevant rule in the HESC Rules.

 

7. Rule 20(1)(c) contains the requirement for an application notice in a special educational needs case to be received within 2 months after written notice of the decision being challenged was being sent to the applicant.

 

8. Rule 5 provides:

 

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

…

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

(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit

…”

9. Rule 20(4) provides

 

“(4) If the applicant provides the application notice to the Tribunal later than the time required by paragraph (1) or by any extension of time under rule 5(3)(a) (power to extend time)—

(a) the application notice must include a request for an extension of time and the reason why the application notice was not provided in time; and

(b) unless the Tribunal extends time for the application notice under rule 5(3)(a) (power to extend time) the Tribunal must not admit the application notice.”

 

10. The tribunal’s overriding objective is set out in rule 2 in the following terms:

 

“(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

 

(2) Dealing with a case fairly and justly includes—

 

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

 

(3) The Tribunal must seek to give effect to the overriding objective when it—

 

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.

 

(4) Parties must—

 

(a) help the Tribunal to further the overriding objective; and

(b) co-operate with the Tribunal generally.”

 

11. Reference must also be made to rule 7(1) concerning the consequences of failure to comply with the rules:

 

“(1)  An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings.”

 

12. The obligation to hold a hearing is dealt with in rule 23:

 

“(1) Subject to paragraphs (2) and (3), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—

 

(a) each party has consented to the matter being decided without a hearing; and

(b) the Tribunal considers that it is able to decide the matter without the hearing.

 

(2) This rule does not apply to a decision under Part 5.

 

(3) The Tribunal may dispose of proceedings without a hearing under rule 8 (striking out a party's case).”

 

13. There have been a number of recent decisions, principally by the Upper Tribunal and principally in criminal injuries compensation cases, which examine similar issues.  Criminal injuries compensation cases are conducted under the equivalent rules of procedure for the Social Entitlement Chamber: SI 2008/2685 (“the SEC rules”). The following table may assist in demonstrating the extent to which principles derived from cases in other jurisdictions may be applied to special educational needs.

 

HESC Rules	SEC Rules
Rule 2(overriding objective)	Rule 2 is the same
Rule 5(3)(a) (case management powers – extensions of time)	Rule 5(3)(a) is materially the same for present purposes
Rule 7(1) (failure to comply with rules etc)	Rule 7(1) is the same
Rule 20 (the application notice)	Rule 22, in its application to criminal injuries cases, was and is in materially the same form, albeit the relevant time limit (within 90 days after the date of the decision being challenged) is different
Rule 23 (hearings)	Rule 27, though generally in similar terms is in the case of criminal injuries compensation cases subject to relevant modifications by paragraphs (4)-(6) of the rule, set out below.

 

14. The modifications to rule 27 of the SEC Rules, to which the rest of the rule is expressed to be subject, are as follows:

 

“(4) In a criminal injuries compensation case—

 

(a) the Tribunal may make a decision which disposes of proceedings without a hearing; and

(b) subject to paragraph (5), if the Tribunal makes a decision which disposes of proceedings without a hearing, any party may make a written application to the Tribunal for the decision to be reconsidered at a hearing.

 

(5) An application under paragraph (4)(b) may not be made in relation to a decision—

 

(a) not to extend a time limit;

 

(b) not to set aside a previous decision;

 

(c) not to allow an appeal against a decision not to extend a time limit; or

 

(d) not to allow an appeal against a decision not to reopen a case.

 

(6) An application under paragraph (4)(b) must be received within 1 month after the date on which the Tribunal sent notice of the decision to the party making the application.”

 

15. In terms of case-law, reference should be made to two authorities in particular.  The solicitors now acting for the appellant relied upon the decision by Judge Jacobs in R(KS) v First-tier Tribunal and the Criminal Injuries Compensation Authority [2012] UKUT 281 (AAC); [2013] AACR 9.  The relevant principles are helpfully summarised in the headnote to the reported decision:

 

“Held, allowing the appeal and quashing the decision, that:

 

1. a F-tT has unfettered power to extend the 90 days time limit for submitting an appeal: R (CD) v First-tier Tribunal (CIC) [2010] UKUT 181 (AAC); [2011] AACR 1. In proceeding the F-tT must act judicially and in accordance with the overriding objective in rule 2 by taking account of any factor rationally related to the proper judicial exercise of the power to extend time. These include those factors classified by McCowan LJ in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449, namely: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the degree of prejudice to the respondent if the application is granted. But there may also be other factors, including the impact on other users of the tribunal system. The merits are also relevant even if, as in criminal injuries compensation cases, the appeal lies as of right and without permission: R (Birmingham City Council) v Crown Court at Birmingham [2009] EWHC 3329 (Admin); [2010] 1 WLR 1287 (paragraph 11);

 

2. the F-tT’s approach to the appeal was flawed as it dealt only with the factors relevant to the cause of the delay; it failed to consider or analyse the significance of the delay, the merits of the case or the consequences, for either the CICA or the tribunal system as a whole, if the appeal were admitted (paragraph 12);

 

3. the question on the Notice of Appeal form was too restricted limiting the appellant to the reasons for delay and failing to invite her to make any comments on any other relevant factor. The problem was compounded by the judge’s decision not to hold an oral hearing, thereby depriving the appellant of a chance to refer to other matters. The judge should have taken that into account when deciding whether or not to hold an oral hearing and, if he decided not to do so he was under a particular duty, given the terms of the question on the form, to take account of any factor that might be relevant (paragraphs 13 to 14).”

 

16. KS was a decision given on the papers.  A further case exploring time limits, this time with the benefit of oral submissions, came before Judge Wikeley in R(YT) v The First-tier Tribunal (Social Entitlement Chamber) [2013] UKUT 201 (AAC).  Judge Wikeley conducted a detailed review of the caselaw, which he set out in an Appendix to his decision. This included considering, and rejecting, a submission that Judge Jacobs in KS had gone too far in directing the First-tier Tribunal what matters it should consider when considering an application to extend time, in particular by placing reliance on the decision in the Norwich and Peterborough case.

 

17. No useful purpose will be served by my going over ground that Judge Wikeley has already covered in YT and with which I am in respectful agreement.  I merely seek to summarise those principles which I consider most relevant to the present case:

 

(a) The power in rule 5(3)(a) is unfettered.  As such it has to be exercised judicially and in accordance with the overriding objective in rule 2: KS at [11]; YT, Appendix [2.5]

 

(b) It is “not appropriate to import or create any specific guidance on the issue of extending the time limit to appeal; each case should be considered on its own facts with reference to the relevant rules   governing the Tribunal”: JR/3010/2012, citing Judge Wikeley’s earlier decision in Information Commissioner v PS [2011] UKUT 94 (AAC)

 

(c) The Norwich and Peterborough case is not strictly binding on First-tier Tribunals: tribunals are not required to refer to the list it contains “in a formulaic fashion”.  However “that case conveniently and compendiously refers to a range of considerations which are likely, and very often highly likely, to be relevant in the exercise of the rule 5(3)(a) discretion”: YT, Appendix [3.10]. It is convenient here to set out here the relevant extract from the Norwich and Peterborough case (at page 450):

 

‘The matters which this court takes into account in deciding whether to grant an extension of time are first, the length of the delay; secondly, the reasons for the delay; thirdly, the chances of the appeal succeeding if the application is granted; and fourthly the degree of prejudice to the respondent if the application is granted.’

 

However, as Judge Jacobs acknowledged in KS at [11], it may be that other factors, such as the impact on other users of the tribunal system, also need to be taken into account under the overriding objective.

 

(d)  As to the relevance of merits, see YT at Appendix, [3.15] to [3.16]:

 

“3.15. …Dealing with cases “fairly and justly” may well involve some consideration of the merits of the underlying appeal. If the delay is short and readily excusable, it may well be that the merits of the case may have little, if any, significance (see e.g. Lord Donaldson MR’s observations on Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449 at 455).

 

3.16 In other cases, however, the merits (or rather the lack of merits) may assume greater importance. In particular, there may be a ‘trade-off’ between the period of the delay and the strength of the underlying appeal. Thus the longer the delay, the stronger the underlying case may need to be to justify extending time. So, as ever, the significance of any consideration of the merits will depend on the circumstances of the case. In any event, however, given that the decision on whether or not to extend time is a procedural or interlocutory decision, a detailed examination of the merits is not to be expected.”

 

(e) The adequacy of the explanation for the late appeal/application “is certainly an important consideration under rule 5(3)(a), and indeed the starting point, but it is only the beginning of the enquiry. The watchwords of rule 2 are those of “fairness” and “justice”, which speak to a wider range of considerations than simply why the appeal was late.” YT, Appendix at [4.17]

 

(f) The weight to be attached to all the various factors is a matter for the tribunal, depending on all the circumstances: YT, Appendix, at [11].

 

18. Turning to the decision under appeal, it is evident on the face of the decision that a number of factors were taken into account:

 

(a) the appellant was fully aware of the time limits (decision, paras 2, 4 and 7)

 

(b) the explanation for delay  given was inadequate in that even assuming it was reasonable to wait for the educational psychologist’s report, it was the appellant’s choice, having received it, to research more historical evidence rather than file an appeal (decision, paras 3 and 5)

 

(c) the length of time involved in this case (“such a period of time”) (as noted above, 3-4 weeks) was relevant (para 7).

 

19. There is no suggestion that the judge thought there was any prejudice to the respondent in the 3-4 week delay which had occurred and indeed the respondent has asserted none in the Upper Tribunal proceedings.  I infer therefore that the judge’s concern with the particular period of time which had elapsed was driven primarily by the desire to encourage litigants to act promptly in the interest of the tribunal’s users as a whole.

 

20. It is worth recalling that the tribunal operates on tight, substantially self-imposed timescales, to the benefit of parents, pupils, local authorities and schools, so that people know where they stand and that avoidable delay to a child’s education is minimised.  This is particularly true in relation to cases which deal with important times of change in a child’s school life, such as the transfer to secondary education.

 

21. It is also worth recalling certain features of the special educational needs jurisdiction.  It is possible to appeal against a range of matters, including a refusal to assess a child, a refusal to make a statement, the content of a statement (including the school named) and a refusal to amend a statement.  There are provisions requiring statements to be reviewed not less frequently than annually.  Thus it is possible that over a child’s school life there may be an iterative process of statementing, reviews and, perhaps, appeals.  While a year in a child’s school life is very important, nonetheless the outcome of a particular piece of litigation will not necessarily be determinative once and for all in the same way as, for instance, a decision on a compensation claim.

 

22. It is reasonable to infer that the judge (the Deputy Chamber President) would have had such considerations in mind and indeed his decision acknowledges the latter. The former is suggestive of a need in general terms to ensure deadlines are kept and the latter of an acknowledgment that a person for whom a deadline is not extended may still be in a position to take further action in the relatively near future and so the consequences may be less draconian.

 

23. The avoidance of delay, at any rate “so far as compatible with the proper consideration of the issues” (rule 2(2)(e)), is a legitimate concern.  The judge’s conclusion, in effect that the case could have been properly considered if the appellant had proceeded promptly at latest following receipt of the educational psychologist’s report, and thus that the avoidance of delay was important, is one that I do not regard as open to successful challenge in a jurisdiction limited to error of law.

 

24. However, I cannot discern that any consideration was given to the underlying merits of the case.  Such consideration is normally to be expected, for the reasons set out in KS and YT (and, so far as relevant, the Norwich and Peterborough case).  If, as appears to have been the case,  the judge considered that the particular period of delay was significant, one would expected this to have been balanced against his perception, on a necessarily initial view, of the merits.  The decision shows no sign of this having been done. It appears likely that the judge’s reference to the educational psychologist’s report (itself only part of a much bigger picture assembled by the appellant) was only for the purpose of determining when it came into the appellant’s hands (which is the subject of a handwritten annotation on the copy I have).

 

25. I am inclined to suspect that there may be a residual perspective on the part of the tribunal that it is only the explanation for the delay that is relevant.  The September 2010 guidance does suggest this, in its limitation to “special circumstances which meant that you were not able to send your appeal in time”.  Such a mistaken view might be fostered by a reading, in isolation, of rule 20(4), which only requires there to be furnished “the reason why the application notice was not provided in time”, as opposed to the reasons more generally why an extension of time should be permitted.  However, in my view, the terms of the rule reflect that reasons for delay are almost always likely to be relevant to a decision to extend time and are likely to be only in the knowledge of a prospective appellant rather than the tribunal, whereas other factors would be likely to be in the tribunal’s knowledge, including from the application form, without the specific requirement imposed by rule 20(4)(a) to include reasons for delay.

 

26. I remain of the view therefore that the merits of the case did fall to be considered and that the tribunal was in error of law in failing to address – even by implication – all relevant factors.

 

27. Was the tribunal required to hold a hearing?  In my view it was not under a duty to hold a hearing, but had the power to do so.  Regulation 23 of the HESC Rules imposes an obligation to hold a hearing (with certain exceptions) before making a decision “which disposes of proceedings”.  While I accept that the position is not entirely clear and I have not received argument on the point, it seems to me that the better view is that an application which is not admitted does not make it to the stage of being “proceedings” at all.  A similar view is taken by the authors of Sweet and Maxwell’s “Social Security Legislation 2013/4” in relation to SEC rule 27.

 

28. My view above is unaffected by the existence of the special provisions for criminal injuries compensation cases in paragraphs (4)-(6) of rule 27 of the SEC Rules.  One could read paragraphs (4) and (5) together as suggesting that a decision not to waive a time limit thereby had the effect of disposing of proceedings and so required the express modification of rule 27(1) effected by rule 27(4).  In my view that would be to read too much into the rule.  Criminal injuries compensation cases were regarded as something of a special case at the time of the 2008 Rules (for instance, they were, and remain, only challengeable in the Upper Tribunal by judicial review and not by statutory appeal).  Paragraphs (4)-(6) of rule 27 appear to have their origin in paragraphs 66-68 of the Criminal Injuries Compensation Scheme 2001 and to have originally been concerned with decisions not to waive the time limit on applications to the Criminal Injuries Compensation Authority, or not to permit a review of that authority’s decision, or not to re-open a case where the person’s condition had deteriorated or the person had died.  In my view the intention of those framing the SEC Rules was to replicate that special provision, making – albeit possibly imperfect - adjustment in the light of the regime introduced by the Tribunals, Courts and Enforcement Act 2007 and that to allow those specialised provisions to govern the interpretation of the whole, across a number of jurisdictions, would be a severe case of “the tail wagging the dog”.

 

29. As there were no ”proceedings”, it is not necessary to consider rule 7 further.

 

30. I therefore consider that the tribunal was not under a duty to hold a hearing, but it undoubtedly had the power to do so under rule 5.  The tribunal had not been asked to hold an oral hearing on the time limit point.  The appellant is an educated woman, whose papers had been presented in good order and whose case was clearly explained.  In the absence of an express duty to hold a hearing and in circumstances not obviously calling for one to be held, I am reluctant to infer otherwise than that the possibility (as always) of holding a hearing was in the mind of the judge but that he considered nothing about this case called for him to address the point specifically in the reasons given - in appropriately limited form – on a decision on a preliminary point.  The situation is very different from those cases, typically under SEC rule 27, where there is an express provision only permitting the tribunal not to hold a hearing in certain circumstances where (inter alia) it considers that it is able to decide the matter without a hearing and in those circumstances the Upper Tribunal has required the tribunal expressly to address its reasons for that view: see e.g. MM v SSWP (ESA) [2011] 334(AAC).

 

31. It appears to me that having found the decision to be in error of law, I should set it aside.  I am conscious that the utility of doing so in this particular case may have diminished with the passage of time and as the next annual review of Zoe’s statement approaches.  As the appellant is now advised by solicitors, they will be able to consider with her whether or not it remains appropriate to pursue the application for an extension of time to appeal against the authority’s decision communicated 1 April 2013 or whether Zoe’s interests can sufficiently be protected through the next annual review.

 

32. There will be cases (I am not intending to suggest that this is now necessarily one of them, given that the appellant now has the assistance of specialist solicitors) where it will be particularly important for the tribunal to bear in mind that as the application form contains no field asking for an appellant’s grounds for submitting that time should be extended, and that the Guidance puts the test in misleading terms, there may be more reason to have an oral hearing than might otherwise be the case see KS at [13] and [14].

 

33. I direct that:

 

(a)  If an oral hearing of the application is sought, the appellant’s solicitors must notify the First-tier Tribunal within 10 days of the date of the letter sending this Decision, giving grounds.  It is a matter for the First-tier Tribunal in the proper exercise of its discretion whether or not to accede to that request.

 

(b) The First-tier Tribunal, constituted by a different judge, must re-determine the application in accordance with the relevant rules and case-law identified in this decision.  The weighing-up of the various considerations will be a matter for the judge and I say no more about them.

 

(c)  Although the appellant’s letter of 26 July 2013 was not before the judge whose decision is under appeal and so could not found an error of law, it will be available to the judge hearing the remitted application and may thus be taken into account.

 

34. It is for the First-tier Tribunal to decide whether any changes to its Guidance and/or forms are desirable.

 

 

 

CG Ward

Judge of the Upper Tribunal

6 January 2014