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 local authority.

 

The decisions of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 28 May 2014 and 9 June 2014, following the hearing on 6 May 2014 under file reference SE885/13/00028, involve an error on a point of law.

 

The Upper Tribunal is not in a position to re-make the First-tier Tribunal’s decision on the Respondent parent’s appeal against the local authority’s refusal to make an assessment of special educational needs in relation to M. It therefore follows that the case is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

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

 

 

RULING

 

There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child M who is the subject of this appeal.

 

This ruling is made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

DIRECTIONS

 

The following directions apply to the re-hearing before the First-tier Tribunal:

 

(1) The new tribunal should not involve the tribunal judge or specialist member who sat on the last tribunal on 6 May 2012.

 

(2) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. 

 

(3) These directions may be supplemented as appropriate by later directions by a Tribunal Judge in the First-tier Tribunal (Health, Education and Social Care Chamber). 

 

 

 

 

REASONS FOR DECISION

 

Introduction

1. This appeal concerns a decision by the First-tier Tribunal (“the Tribunal”) about whether the appellant local authority should carry out an assessment of the special educational needs of the respondent’s daughter (“M”). I refer to the respondent in these proceedings simply as the parent, again to protect her privacy.

The legal framework

2. There is no dispute that when hearing an appeal against a decision not to make a statement the Tribunal has the option of remittal to the local authority (see Education Act 1996, section 325(3)). Equally, however, that option does not arise on an appeal against a local authority decision not to make an assessment. In that situation the Tribunal faces a binary choice of either dismissing the appeal or ordering an assessment; there is no third way of remittal (section 329(3)).

 

3. This case also concerns the distinction between a set aside by the Tribunal following a review under section 9 of the Tribunals, Courts and Enforcement Act (TCEA) 2007 and a set aside under rule 45 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699; “the HESC Rules”). Unfortunately the Tribunal has fundamentally misunderstood that distinction.

 

The factual background

4. The local authority had refused to make an assessment of M’s special educational needs. The parents appealed that decision. The Tribunal, in its decision dated 28 May 2014 following an oral hearing on 6 May 2014, plainly had some difficulties with certain aspects of the local authority’s evidence. It made orders allowing the parents’ appeal and purportedly remitting the matter to the local authority for reconsideration.

 

5. On 9 June 2014, the parents having “queried the outcome described in the written decision issued on 28 May 2014”, the Tribunal Judge issued what was described as a “setting aside decision” under rule 45 (in a separate covering letter from the Tribunal clerk, it was described as “an amended Tribunal decision”). This second decision ordered that (i) the order of 28 May 2014 allowing the parent’s appeal stood but that (ii) the order requiring the local authority to reconsider its decision on whether to conduct an assessment was set aside.

 

6. On 1 July 2014 I gave the local authority permission to appeal and stayed the effect of the Tribunal’s decision. I am now allowing the local authority’s appeal to the Upper Tribunal for the reasons that follow. 

 

Is an Upper Tribunal oral hearing of this appeal necessary?

7. There is no absolute right to an Upper Tribunal oral hearing. I have a discretion to exercise in the light of the overriding objective of dealing with cases fairly and justly under rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698; “the UT Rules”). I am also required to consider both parties’ views by virtue of rule 34.

 

8. The parent’s representative argues that an oral hearing of the appeal before the Upper Tribunal is necessary if that is “the only way of establishing the facts”. The local authority argues that an Upper Tribunal oral hearing is not required. I refuse the parent’s contingent application for an oral hearing of the appeal for the following reasons.

 

9. The Upper Tribunal’s role is confined to correcting the Tribunal on issues of law. The legal issues here have been well ventilated in the written submissions. I am not satisfied that further oral legal argument will assist in any material way. It is also not the job of the Upper Tribunal to embark on a further investigation of the facts of the case. In addition, the Tribunal below (but not the Upper Tribunal) sits with a specialist member. An oral hearing before the Upper Tribunal in this case is both unnecessary and disproportionate. It would cause further delay, expense and inconvenience. M’s parent will, of course, have the opportunity, as is fair and just, to have her say at a re-hearing before a different Tribunal as a result of my decision. That is the place to resolve the factual disputes about M’s needs.

 

10.  I have not overlooked the fact that there is still some uncertainty as to what actually prompted the Tribunal’s second decision of 9 June 2014. The parent’s representative is adamant that the parent had not made an application and that the Judge’s reconsideration (to use a neutral term) was of his own initiative. The Tribunal’s further decision itself stated that “the parents have queried the outcome” described in the earlier decision, although the file includes no copy of any such query. For present purposes the safest thing is to assume that the parents did indeed ask for such clarification. It does not actually affect the outcome of the present proceedings.

 

The Upper Tribunal’s analysis

The two principal types of setting aside available to the First-tier Tribunal

11.  In certain circumstances the First-tier Tribunal may set aside its own decision if satisfied that it contains an “error of law” (I call this setting aside on review). In other circumstances the First-tier Tribunal may set aside its own decision if it considers that it is in the interests of justice to do so and there has been some “procedural irregularity” (I call this setting aside on procedural grounds). There is some overlap between the circumstances so covered: some but not all errors of law also amount to a procedural irregularity, and some but not all procedural irregularities constitute a (material) error of law. There are also important distinctions between the two routes. Tribunals must bear these differences in mind, as otherwise the distinction between an error of law and a procedural irregularity, plainly contemplated by the statutory scheme, disappears to the point at which it vanishes.

 

12.  Setting aside on review is governed by section 9 of TCEA 2007, which allows for the procedural rules to limit the power of review itself (section 9(3)). The HESC Rules themselves (see rule 49) limit the exercise of that review power to cases where there has been either an application for review owing to a relevant change of circumstances (rule 48) or an application for permission to appeal where the Tribunal is satisfied that there is an error of law in its decision (rule 47). Furthermore, the other party must be given the opportunity to make representations beforehand, or advised of the right to make representations afterwards (see rule 49(3); and see further GA v London Borough of Southwark (HB) [2013] UKUT 170 (AAC)). A First-tier Tribunal’s review decision under section 9 is an “excluded decision” and so there is no right of appeal to the Upper Tribunal (TCEA 2007, section 11(5)(d)(i)).

 

13.  Setting aside on procedural grounds, on the other hand, is governed by TCEA 2007, Schedule 5, paragraph 15(2) and rule 45 of the HESC Rules. It is well established that the power under rule 45 (and its predecessors) is limited to procedural mishaps and errors. It does not allow a decision to be set aside for matters that relate to the substance of the decision (see by analogy in other fields Trimble v Supertravel Ltd [1982] ICR 440 (EAT); Social Security Commissioner’s decision R(U) 3/89, Appendix at para. [24] and R v Housing Benefit Review Board ex parte W (Court of Appeal, 26 November 1999, unreported)). It is also clear that a decision under the equivalent provision in the social security field (rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685)) is not an “excluded decision” and so is in principle susceptible to appeal to the Upper Tribunal (see MP v Secretary of State for Work and Pensions (DLA) [2010] UKUT 103 (AAC)).

 

The two errors of law in the First-tier Tribunal’s decision of 9 June 2014

14.  The Tribunal’s decision (or, to be precise, the combined effect of its decisions dated 28 May 2014 and 9 June 2014), following the hearing on 6 May 2014 under file reference SE885/13/00028, involves an error on a point of law for the following two reasons.

 

15.  First, as the local authority argue, the Tribunal erred in law in its setting aside decision of 9 June 2014 by directing that a statutory assessment be undertaken without giving any adequate reasons for that decision. It is not enough to say that the reasons are self-evident from the earlier decision of 28 May 2014, where the Tribunal set out some of the problems it had with the local authority’s evidence. I say that not least as that decision expressly and categorically stated that “Nothing we say above should be interpreted as an order that there should be a statutory assessment of M’s educational needs under s.323” (at [16]). Conversely the decision of 9 June 2014 stated that “the consequence of allowing the appeal is that the LA must arrange an assessment of M’s special educational needs”. There was, therefore, a clear and unresolved contradiction between the reasons in the 28 May 2014 decision and the reasons and outcome of the setting aside decision of 9 June 2014. I might add that, although I do not rely on it as the point has not been previously canvassed with the parties, the Tribunal singularly failed to address the “interests of justice” criterion under rule 45 in its short reasons.

 

16.  Second, and as I suggested when giving permission to appeal to the local authority, the Tribunal also erred in law in any event when purporting to rely on rule 45 of the HESC Rules to make the decision it did on 9 June 2014. As we have seen, rule 45 allows a decision to be set aside on the basis of some sort of procedural mishap. In other words, there must be some sort of procedural irregularity in the Tribunal proceedings. Here the Tribunal’s error was a fundamental error of substance or jurisdiction, not a simple procedural error. I recognise that there might conceivably be some argument that the Tribunal’s failure to advert to the terms of section 329(3) was itself a procedural error or irregularity. However, that is not the basis of the Tribunal’s setting aside decision and nor is it the way that the parent’s case has been put.

 

The arguments advanced on behalf of the parent

17.  My case management directions on the appeal specified the sequence of written submissions on the appeal. The parent’s representative has not kept to this sequence, making a further response after the appellant local authority’s final reply. She has also raised some points by e-mail which were apparently not copied to the appellant’s solicitors. However, I am satisfied that there has been no prejudice to the local authority as I do not accept the arguments advanced on behalf of the parent. I can deal shortly with all the various points that have been raised.

 

18.  How could the Upper Tribunal give permission to appeal to the local authority without first seeking the views of the respondent parent? This query was dealt with by Mr McIntyre, Upper Tribunal registrar, in his e-mail of 30 July 2014 to the parent’s representative. Although it may sometimes be desirable, there is no requirement under the Rules for applications for permission to appeal to the Upper Tribunal to be on notice to the other party. Nor is there any requirement for the Upper Tribunal to seek the other party’s views before deciding whether or not the grounds are arguable. In the event that permission is granted, then of course all parties are invited to make submissions on the material issues.

 

19.  Surely the local authority was seeking to appeal to the Upper Tribunal an excluded decision? As noted above, there is no right of appeal to the Upper Tribunal in respect of an “excluded decision” (TCEA 2007, section 11(1) and (5)). Excluded decisions include Tribunal decisions taken under section 9 of TCEA 2007 to review, or not to review, or to set aside an earlier Tribunal decision (section 11(5)(d)(i) and (iii)). The salaried Judge who refused permission to appeal at first instance characterised the 9 June 2014 decision as a review decision under section 9(4)(c) and (5)(a) of TCEA 2007. If that was right, then the Tribunal’s second decision was indeed an excluded decision and the local authority’s only remedy lay by way of an application for permission to apply for judicial review. There are several reasons why that analysis is wrong.

 

20.  First, in its decision of 9 June 2014 the Tribunal made no reference to the statutory process of review or to setting aside on review under section 9 of TCEA 2007. The only statutory authority it relied upon was the separate power to set aside on procedural grounds under rule 45 of the HESC Rules.

 

21.  Second, as we have seen, setting aside on review under section 9 and rule 49 requires a pre-existing application under rules 47 or 48. There is no suggestion here that any such application was made. Indeed, the parent’s representative accepts that there was no such application. It also requires the other party to be put on notice and for representations to be sought (before or after the event). There is no evidence that happened here either. As Judge Mark observed in GA v London Borough of Southwark (HB), “It is hard to think of any judicial decision that does not require either that a party adversely affected should either be given the opportunity to be heard before the decision is made or to apply to set it aside within a short time of its being made” (at paragraph 16). 

 

22.  Third, although its decision of 9 June 2014 was headed “Setting Aside Decision”, the Tribunal did not actually set aside the decision of 28 May 2014. Rather, the Tribunal purported to set aside the order that the local authority reconsider its decision while confirming the order that the parent’s appeal was allowed. In so far as this is permissible, it more naturally falls within the scope of rule 45 of the HESC Rules than section 9 of TCEA 2007.

 

23.  This was, without doubt, a purported but flawed exercise of the Tribunal’s power to set aside on procedural grounds. It follows that in challenging the Tribunal’s decision of 9 June 2014 the local authority was not seeking to appeal an excluded decision.

 

24.  Given the error as to jurisdiction, what else could the Tribunal Judge on 9 June 2018 have done, other than apply rule 45? The Tribunal Judge could have taken a number of steps on realising the substantive or jurisdictional error in the 28 May 2014 decision. They include (but may not be limited) to the following. First, if he was proposing to set aside of his own volition, and assuming for the present that some procedural irregularity could have been identified, he could have invited the local authority’s observations on the matter. Second, he could have invited one or other party to make an application for permission to appeal with a view to exercising his review powers under section 9 and rules 47 and 49. What the Judge could not do was purport to apply rule 45 in the way that he did, and without giving adequate reasons, and given the reasons that had already been given on 28 May 2014. There was a clear and unexplained contradiction between the reasons in the 28 May 2014 decision (see paragraph 15 above) and the reasons and outcome of the purported setting aside decision of 9 June 2014.

 

Conclusion and disposal of the appeal to the Upper Tribunal

25.  For the reasons set out above, the decision of the tribunal involves an error of law. I must therefore allow the local authority’s appeal. It is also appropriate to set aside the decision of the tribunal (TCEA 2007, section 12(2)(a)).

 

26.  Finally, I just make the obvious point that I express no view either way as to whether it is necessary to have a SEN assessment for M. So the fact that this appeal by the local authority has succeeded on a point of law should not be taken as any indication of the likely outcome on the re-hearing before the First-tier Tribunal.

 

27.  When giving permission to appeal I drew the local authority’s attention to passages in the ruling by the Tribunal salaried Judge who had refused permission to appeal. I invited the authority to reflect on the points the Judge made as regards the Tribunal’s findings on its case. I also encouraged “the representatives of the local authority and the parents to see if there is some way in which this matter can be resolved without further legal proceedings, bearing in mind that the welfare and best interests of M should be at the forefront of their thinking.” I understand that the local authority has reviewed the matter and has confirmed its view that a statutory assessment is not necessary for M at this time (letter dated 15 August 2014). The Judge who makes directions for the re-hearing will doubtless wish to consider making further directions for the filing of evidence and submissions as appropriate.

 

28.  The following directions apply to the re-hearing:

 

(1) The new tribunal should not involve the tribunal judge or specialist member who sat on the last tribunal on 6 May 2014.

 

(2) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. 

 

(3) These directions may be supplemented as appropriate by later directions by a Tribunal Judge in the First-tier Tribunal (Health, Education and Social Care Chamber). 

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 10 September 2014 Judge of the Upper Tribunal