Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Appeal No: HS/4723/2014

 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge Wright

 

 

DECISION

 

 

The Upper Tribunal allows the appeal of the appellant.

 

The decision of the First-tier Tribunal made on 14 July 2014  reference SE370/13/00007 involved an error on a material point of law and is set aside.

 

The Upper Tribunal is not in a position to re-decide the appeal. It therefore refers the appeal to be decided afresh by a completely differently constituted First-tier Tribunal and in accordance with the Directions set out below.

 

This decision is made under section 12(1), 12 (2)(a) and 12(2)(b)(i) of the Tribunals Courts and Enforcement Act 2007

 

 

DIRECTIONS

 

 

Subject to any later Directions by a Judge of the First-tier Tribunal, the Upper Tribunal directs as follows:

 

 

(1)               The new hearing will be at an oral hearing

 

(2)              If either party has any further evidence that they wish to put before the tribunal, this should be sent to the First-tier Tribunal’s office within one month of the date this decision is issued.

 

(3)              The First-tier Tribunal should have regard to the points made below.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

Introduction

 

1.                   In these reasons I refer to the child who this appeal is concerned with as “Sam”, though that is not his real name, his parents (both are the appellants) as “the parents”, and the two schools as “School J” (the parents’ preferred school) and “School G” (the school named in Part IV by the First-tier Tribunal).

2.                  In giving permission to appeal on the papers on 10 October 2014 I said this:

“I give permission to appeal because, generally, the grounds of appeal are arguable and have a realistic prospect of showing that the First-tier Tribunal erred materially in law.

 

In particular, in my judgment there is merit in the argument that the First-tier Tribunal failed to address adequately the evidence from CAMHS and Ms Cameron’s two reports and in particular [Sam’s] need for small and quiet classrooms and his needing 3 hours teaching a week from a teacher for the deaf. It is arguably difficult to discern the reasons why the tribunal rejected this evidence.  Most of the other error of law other grounds are based on these alleged omissions.

 

In addition, it is not clear what the evidential basis was for the tribunal’s finding that the journey to [School J] took 1 hour or why the tribunal rejected (if it did so) the parent’s evidence of it taking ½ this time. (If it did not reject this evidence then it is arguably difficult to understand why the tribunal concluded the journey took double this time.)

 

Additionally, but separately from the grounds advanced, it may be arguable that the First-tier Tribunal erred in law in taking account of and/or relying on evidence from the first hearing on 26 November 2013 when it was not the same First-tier Tribunal that concluded and decided the appeal on 7 July 2014. It is arguably the case that the First-tier Tribunal must have the same constitution throughout the appeal proceedings (see, by analogy, paragraphs 27 and 28 of MB and others –v- SSWP (ESA and DLA) [2013] UKUT 111 (AAC); [2014] AACR 1).  Paragraph 6 of the 16 December 2009 Practice Statement, as amended, on the Composition of tribunals in relation to matters that fall to be decided by the Health, Education and Social Care chamber on or after 18 January 2010 sets out that an appeal such as this one is to be decided by three tribunal members. However, on the basis of MB it is arguable that this rule was breached by 4 tribunal members being involved in the process of evidence gathering along the way to the final decision made.  Given this, ought not the tribunal on 7 July 2014 have started entirely afresh?  Otherwise there is the danger that the new member is deciding the appeal on a different evidential basis to the other two members, and there is the further danger that the other two members’ view of the evidence may have been influenced by the first member who is no longer sitting.”

 

3.                  The appeal was then subject of a hearing before me at Field House in London on 30 January 2015. The parents were represented by Mr Desai of counsel and Barnsley MBC by Mr Hyams of counsel. I am a grateful to both advocates for their helpful and well focused submissions.

 

Decision in Summary

 

4.                  I have concluded that the First-tier Tribunal’s decision of decision of 14 July 2014 (“the tribunal”) was erroneous on material points of law and must be set aside. I do so for two reasons. First, the reasons it gave for its decision were inadequate. Second, the tribunal was as a matter of law wrongly constituted in coming to its decision. In essence both conclusions are for the reasons I suggested when I gave permission to appeal.

 

Upper Tribunal Re-deciding the Part IV appeal 

5.                  I reject, however, the argument made on behalf of the parents, one which was not at the forefront of Mr Desai’s submissions in fairness, that the evidence is sufficiently clear that I ought on setting aside the tribunal’s decision to remake the decision and find, as the tribunal on this part of Mr Desai’s argument was bound to decide, that School J should be named in Part IV of Sam’s statement of special educational needs. I note to start with that that this was not a ground of relief which was sought in Mr Desai’s submissions in reply of 21 November 2014 or his skeleton argument.

 

6.                  A real difficulty with this argument, even if I were to accept it and seek to follow it, is that it would leave the other parts of the statement undisturbed, yet the parents’ concerns on this appeal are not just directed to which school is to be named under Part IV.  Section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) does not allow me to re-make the decision and remit the appeal to another First-tier Tribunal to be re-decided. Yet that is precisely what this argument, as I understand it, would require me to do. 

 

7.                  The argument might then become that I direct the First-tier Tribunal under section 12(2)(b)(i) of the 2007 Act to name School J in Part IV and re-decide the points in issue relevant to Parts II and III. However I am not sure section 12(2)(b)(ii) enables me to do this, but in any event I do not accept that the only available result on the evidence was or is to name School J. Not the least consideration which is relevant to this issue is that any decision made now would apply from now only and so would depend upon what Sam’s needs now are and what Schools G’s and J’s suitability now is, rather than how those questions may have been answered in July 2014, and no such evidence has been put before me. 

 

8.                 On an appeal under section 11 of the 2007 Act the Upper Tribunal has no power to give the decision the First-tier Tribunal ought to have given.  Section 12(4) of the 2007 Act provides that the Upper Tribunal “may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were remaking the decision”.  However the First-tier Tribunal (Special Educational Needs) remaking the decision is doing so on the basis of how matters are at the time it re-makes the decision and not how they were when the appeal was originally heard.  This is because there is nothing in the special educational needs legislation that is equivalent to section 12(8)(b) of the Social Security 1998, the effect of which is to limit the First-tier Tribunal (or the Upper Tribunal under section 12 of the 2007 Act) to deciding the appeal only on the basis of matters obtaining at the time the first instance decision under appeal was made.

 

9.                  I say no more, therefore, about this ground of appeal.

 

 

 

Children and Families Act 2014

 

10.              I canvassed with the parties whether section 81 of Children and Families Act 2014 was of any relevance to this appeal and any remedies sought on it: see, for example, Article 16 of the Children and Families Act 2014 (Transitional and Saving Provisions) (No.2) Order 2014 (SI 2014/2270). Neither party has argued the Act is of any relevance and I therefore say no more about it.

 

Relevant background

11.               The appeal was first heard by the tribunal on 26 November 2013.  The tribunal was constituted, as it ought to have been, by a Tribunal Judge and two Specialist Members.  Ms Jackson of IPSEA represented the parents; Mr Manion represented Barnsley MBC. At the time Sam was 11 and it was agreed that he had “severe bilateral sensori-neural hearing loss” and appeared to have a “significant overall developmental delay”.

 

12.              The tribunal recited that the main areas of disagreement between the parties were the description of Sam’s primary need (as between “hearing impairment” (the view of the parents) and “severe learning difficulties” (the view of Barnsley MBC)) and the school to be named in Part IV of the statement but that “there were some other important issues regarding the wording of the working document….[s]ome of the significant issues were, the amount and method of provision of speech and language therapy (SALT), the amount of input by a Teacher of the Deaf and the learning environment whether it should be a total communication environment or an oral approach”.

 

13.              The tribunal heard from a number of witnesses at the hearing on 26 November 2013.  However it was unable to arrive at its decision on that date.  Two issues in particular needed to be addressed, in the tribunal’s view, before it could, in its words, “establish the primary need and the interrelationship of the diagnoses that have been made for [Sam], and to have the necessary evidence to make a fair decision regarding the outstanding issues in the working document including part 4”.  The two issues were (i) whether the audiologist considered a diagnosis of hyperacausis was appropriate for Sam or not, and (ii) a need for further evidence from an educational psychologist with experience and knowledge of children with hearing impairment to report on Sam’s cognitive skills. 

 

14.              The tribunal therefore, by its decision of 11 December 2013, adjourned the appeal to a further hearing on 5 March 2014. It was agreed and ordered that Barnsley would file further evidence from a suitably qualified educational psychologist and from the audiologist, with the parents allowed to file any additional evidence a week after Barnsley’s evidence. 

 

15.               Time slipped however and the appeal did not come back for further hearing until 7 July 2014.  On this occasion the tribunal was constituted by the same Tribunal Judge and two Specialist Members, however one of the specialist members was different from one who had sat on the 26 November 2013 hearing.  The parties were represented again by Ms Jackson and Mr Manion. Much the same witnesses also attended this hearing as the previous one, but with some differences. Ms Cameron, a speech and language therapist, who had been a witness for the parents at the first hearing, was not at the second hearing (though she had provided a further report, which I will come to), and Mr Varley, the speech and language manager at School J, who had not attended the previous hearing, attended this hearing as a witness for the parents. 

 

16.              In terms of the further evidence agreed and ordered from Barnsley MBC by the tribunal in its decision of 11 December 2013, Barnsley on 19 February 2014 provided to the tribunal a letter from Dr Tungland, the audiologist, dated 12 December 2013.  On the issue which was of concern to the tribunal, Dr Tungland stated that there was no objective basis for testing whether or not Sam had hyperacusis.  As for the specialist educational psychologist’s report also sought by the tribunal, Barnsley had approached the local NHS Deaf Children, Young People and Family Service (National Deaf CAMHS) team but it was unable to supply a report in the time set down. This led to the 5 March 2014 hearing being postponed.  The report by National Deaf CAMHS is dated 14 April 2014 and was provided to the tribunal on 2 May 2014. The reason for this delay would seem to be because the content of the report was being discussed with the parents before distribution. 

 

17.               In addition to this evidence, a second report was submitted from Ms Cameron by the parents. This is undated but was provided to the tribunal by Ms Jackson on 26 February 2014. The report covered Ms Cameron having visited School G (Barnsley’s preferred school) and the school Sam was then attending.

 

18.              The Tribunal Judge then issued an order on 6 June 2014 setting out two dates when the hearing could be relisted given that the further evidence needed had been filed. She issued a further order on 18 June 2014 scheduling the hearing to take place on 7 July 2014. In neither order was anything said about the tribunal having to be differently constituted.

 

19.              In its decision of 14 July 2014, following the hearing on 7 July 2014, the tribunal said this, relevantly, in terms of it being a second hearing:

 

“The matter was first heard on 26 November 2013 and this decision should be read in conjunction with the adjournment order and directions. For ease of reference the background, issues and evidence given [at] the first hearing has been included where relevant, in this decision.”

 

[The tribunal then recites why the first hearing was adjourned and continues]

 

“At the second hearing the tribunal had an additional bundle which included a report from [National Deaf CAMHS]…together with an additional report from Ms Cameron…. who had attended the first hearing and is a member of staff at [School J].

 

At the hearing the tribunal was given another a further letter from the National Deaf CAMHS service, dated, 4 July 2014, which was admitted as late evidence.  A note from Mr Barron was not admitted as late evidence. However he was present and gave the information in oral evidence.”

 

 

This is the extent to which the tribunal addressed the issue of the prior hearing. Nothing is said about the tribunal being differently constituted from the one which sat and took evidence on 26 November 2013. I understand from what was said at the hearing before me that the Tribunal Judge had said at the beginning of the hearing on 7 July 2014 that one of the specialist members who had been a member of the tribunal on the 26 November 2013 hearing was no longer available and had been replaced by another member. However there is nothing to indicate, and no party sought to persuade me, that the tribunal began again and reheard all the evidence afresh. Indeed the opening comment in the 14 July 2014 decision about the evidence given at the first hearing having been included in the decision speaks against any idea that the appeal was considered entirely afresh by the tribunal on 7 July 2014.

20.             In terms of Part IV, the tribunal accepted that both schools could provide an appropriate educational setting for Sam but that School G would be more appropriate and suitable.

 

First error of law – inadequate reasons

 

21.              Mr Desai sought to make a number of criticisms of the tribunal’s decision. However, save for the second ground of appeal dealt with below and his Wednesbury challenge (i.e. that the only available decision on the evidence – and one I should make having set the tribunal’s decision aside – was that only appropriate or suitable school, was School J, which I have addressed and rejected above), I agree with Mr Hyams that the criticisms come to the same thing in the end, namely an allegation that the tribunal failed to give adequate reasons for its decision.  In terms of the materiality of any alleged failure to give adequate reasons, the critical issue is whether the tribunal adequately explained why School G was appropriate and suitable.

22.             As I have concluded that the tribunal did so err in at least one material respect, I am not going to address all the alleged deficiencies in the reasoning. Such matters and arguments will now be subsumed in the issues the new First-tier Tribunal will have to consider.

 

23.             The, or a, key flaw in the reasoning, in my judgment, is how the tribunal addressed the evidence concerning Sam’s sensitivity to noise. This was a central and material consideration to School G being suitable for Sam given his parents’ case that it was not suitable in this respect and the evidence which they said supported this argument. Despite the best efforts of Mr Hyams, I do not consider the tribunal have dealt with this adequately in its reasoning. In particular, I do not consider the tribunal has adequately explained away the evidence from Ms Cameron and the National Deaf CAMHS on this issue.

 

24.             Part of the difficulty arises from the form in which the decision is made, which from my experience is based on a standard template in which no distinction is sought to be made between “findings of fact” and the “reasons of those findings”, and where the sub-headings move from Issues to Evidence and ends with Conclusions. Such a format does not lend itself necessarily to ease of understanding of the findings of fact the tribunal has made and its reasons for those findings. However, of itself use of a standard format does not necessarily mean that reasons are inadequate. That enquiry involves looking at the decision as a whole and the evidence before the tribunal, to which I now turn.

 

25.              On what I will describe as “noise sensitivity”, the key evidence put forward on behalf of the parents was in Ms Cameron’s second report and the two reports of national Deaf CAMHS. It was not disputed before the tribunal that Sam had sensitivity to noise and the school chosen would need to have the correct acoustic environment for him. Indeed this is in part borne out by the tribunal seeking the further evidence from Dr Tungland about a diagnosis of “hyperacusis”, which he described in his letter of 12 December 2013 as more correctly applied to “over sensitivity of hearing to sounds that are quite modest in intensity, and tolerated well by others in the same environment”. 

 

26.             Nor do I dispute that the tribunal found in this regard that School G could provide the correct acoustic environment for him (it said this in paragraph 52 of its decision), because “[t]here is provision for him to be taught on an individual basis or in small groups as he settles into the school” (again, paragraph 52). Further in Part III of Sam’s amended statement (on page 4 of that statement) the tribunal had included as provision “Teaching in a learning environment that is aware of background noise and makes suitable adjustments to this”. 

 

27.              Both of these conclusions of the tribunal were based on the evidence of the head-teacher of School G of a two class entry of 28 in each class with additional provision of areas for small groups and individual tuition (para. 26 of the decision), and her view that Sam:

 

“needed a short period with [sic] very structured very quiet period in his own space to establish a programme for him following the pattern that has been established in his mainstream primary school and to shift the balance from his own choices to work in the curriculum and to increase his emotional resilience” (para.26).

 

And perhaps more specifically (para. 31):

 

“….that whilst the classrooms were quite big with children and members of staff there were areas where small groups or individual teaching could take place……the school was purpose-built and complied with the latest regulations in respect of acoustics, lighting and a supportive environment”.

 

 

The head-teacher also later (para. 35) noted Sam’s anxiety and sensory needs. 

28.             The critical issue, however, is whether in accepting this evidence the tribunal has shown it has considered adequately the allegedly contrary evidence put forward by the parents about Sam’s acoustic needs and School G’s lack of suitability in this regard, or whether the allegedly contrary evidence in fact is consistent with what the tribunal found and so did not need to be explained away. In my view neither is the case.

 

29.             The first National Deaf CAMHS report was, as can be seen from paragraph 9 above, to report on Sam’s cognitive skills, and arguably the tribunal only read it in this regard. For example, in paragraph 18 of its decision the tribunal refers to the National Deaf CAMHS first report in terms of the tribunal having requested a “cognitive assessment” and then “quoted [CAMHS’] conclusions in this respect in full” (my underlining added for emphasis). The tribunal then move in the next paragraph in its decision to refer to the National Deaf CAMHS second report and refer to that report as noting that Sam “would need small classrooms, the whole school environment would need to be considered…and a school that has good acoustics, good lighting, limited clutter and a supportive environment”. I will return shortly to what the second report in fact said on these issues, but what this leaves out of account is what the first National Deaf CAMHS report said on Sam’s “noise sensitivity”, bearing in mind it was written by a body with particular expertise in dealing with deaf children.

 

30.             The first National Deaf CAMHS report is long and detailed. It was based in part on visits made by some of its authors to Sam when he was in his then school (neither School G nor School J). I set out only what is said in the reports Summary, using the emphasis as in the original.

 

“[Sam] has bilateral severe sensori neural deafness.  He also has ADHD in that he has difficulties in attending and concentrating, and can be distractible and impulsive.  He has a significant learning disability.

 

[Sam] also has problems with anxiety and coping. This seems to be triggered specifically by noisy environments, lots of people and new situations and places.  Whilst these are not unusual in young children, the responses in [Sam] are quite extreme.  We have seen several examples of him closing down communicatively, becoming very anxious, seeking repetitive self-stimulating behaviours to calm himself down and to him withdrawing emotionally and communicatively. He regulates this by trying to leave the situation.” 

 

 

31.              The report then set out a number of recommendations. In relation to ‘noise sensitivity’ the two most relevant recommendations were that the school have an “environment that has good acoustics, without vibration of noise, and where appropriate technologies for deaf children are in place” and where “noisy or busy environments” were minimized “at this stage in his development”. The report added, on noise sensitivity:

 

“…large classroom sizes with noisy environments are likely to prompt high levels of stress and potentially lead to secondary behavioural difficulties and negatively impact on [Sam’s] learning.”

 

32.             The second report from National Deaf CAMHS is dated 4 July 2014.  It was described as an “addendum” to its first report. It made plain that its authors had not made specific assessments of any particular school with respect to Sam’s needs. As to Sam’s sensitivity to noise the report said, most relevantly, the following:

 

“Small, calm classrooms

[Sam] has a very intense anxiety reaction when he is placed in crowded or noisy environments.  We have seen this on several occasions.  His reaction is usually to completely withdraw into himself and enter into very repetitive behaviours.  He frequently will wish to exit scenarios such as this and will take to harming himself.  …Whilst we are working together as a team to help [Sam] manage his anxiety and become less worried by some of things in his environment, this is likely to be a long task.  In our opinion, large classrooms or noisy classrooms would present very considerably challenges for [Sam] in terms of anxiety, would negatively impact on his learning and would present a risk of harm both to himself and to those around him when he is stressed…...

 

Whole school environment

Given current school reports that [Sam] struggles in busy, noisy environments such as large or noisy dining rooms and busy corridors, the whole school environment will need to be a consideration for school placement….” 

 

33.             These reports have to read alongside those of Ms Cameron.  It is her second report which is most relevant to this ground of appeal. This was a report complied after she had been able to visit School G and the school Sam was then attending on the same day in February 2014.

 

34.             At School G Ms Cameron observed part of the lunch period and noted that there was an expectation that pupils would sit and eat in a sociable manner but if a pupil was unable to cope with the bustle of the dining room he or she could be integrated into the setting over time.  She also observed that the corridors in the school were wide with hard flooring.

 

35.              Her evidence was that each classroom had a main teaching area with three or four small rooms off the “hub” for group work. The first part of a lesson would generally have the whole class group together and the pupils  would split up to work at differentiated levels.  The class groups were between 20 and 28. In a class of 28 there would be at least 14 adults.  The class groups Ms Cameron “popped into were large and busy” and “there were times when the noise levels in [the main classroom area] was high”.  She further observed that the “floor covering is hard and this makes for poorer acoustics in terms of reverberation time, but also for noise levels when chairs are moved which happens regularly with large number of students”.  Ms Cameron also commented that the “small off shoot rooms are carpeted and could accommodate 6 students and two staff sitting round tables….The rooms were insulated from the main area when the door was closed giving a better acoustic environment…..Having the door open would compromise the sound levels.  On my tour, the doors were not always closed and there was one room where it appeared that the door didn’t close”.

36.             Having made these observations Ms Cameron said, relevantly:

 

“I have concerns over the overall acoustic environment and the size of groups for [Sam] given his sensitivity to sound. Listening through hearing aids is not the same as listening through two ears. Hearing aids do not give the listener the same opportunity to tune out background noise as they amplify sound. Although some teaching for [Sam] would take place in small rooms, he would still be part of a large class with the possibility of 42 people being attached to the class (28 children plus 14 adults). One of the biggest producers of noise in a classroom is the people in it and the more people in it the more opportunities for noise. It is totally appropriate to have hard hard-floor covering for the school’s population but this makes the listening environment more difficult for [Sam].”

 

 

 

37.              It was, of course, for the tribunal with its expert membership to weigh and consider all the relevant evidence and form its own judgment as to whether School G would be suitable for Sam.  Moreover, as I have already said and set out, there can be no disputing that the tribunal concluded School G was suitable. In my judgment, however, the flaw in the tribunal’s decision lies in its failure to adequately explain away the evidence from National Deaf CAMHS and Ms Cameron. This is so in a number of material particulars.

 

38.             First, I can find nothing in the reasoning which adequately addresses the “whole school environment”. This was a point made separately by National Deaf CAMHS in its second report from the environment in the class and needed, in my judgment, therefore to be addressed separately or distinctly in the reasoning, but the tribunal failed to do so. Typically, as I understand it, the whole school environment means the instances when Sam was in the corridors, on break in the playground and at lunch. However I can discern no real attempt in the reasoning by the tribunal to grapple with these issues and their impact on Sam in the school day.  The focus in the Conclusions – in paragraph 52 - and the head-teacher of School G’s evidence is on the time in the classroom. Whilst that was plainly highly relevant, the tribunal did not reject the importance of the “whole school environment” put forward by National Deaf CAMHS and so it needed (but failed) to adequately to address it.

 

39.             It may be that the tribunal considered that the evidence about School G being purpose built and complying with the latest regulations on acoustics was a complete answer to these points but: (a) it did not expressly say this; (b) it is not evident how a “busy” play area and dining hall would provide a good acoustic environment for Sam; and (c) this does not necessarily or obviously provide an answer to Ms Cameron’s concern about the noise caused by the hard flooring in the corridors and main areas of the class rooms.

 

40.             Second, the reasoning, in adopting the head-teacher of School G’s evidence about Sam needing a short period of adjustment, does not deal with the arguably contrary view of National Deaf CAMHS in its second report that enabling Sam to deal with crowded or noisy environments was “likely to be a long task”. This is not to say that the tribunal had to accept this evidence, or even that it was necessarily evidence which was inconsistent with the head-teacher of School G’s evidence. But at the least it was potentially important evidence of a sufficiently different or contrary character to call for some explanation, which was lacking here.

41.              Third, there is the evidence about the classrooms themselves.  The National Deaf CAMHS report was of a need for small and calm classrooms, and arguably that Sam would have such a need for a long period of time. Ms Cameron had observed the classrooms on a school day and had raised in her evidence concerns about their size, the noise within them at times, and the utility of the off shoot rooms being a reliable source of a quiet environment across the school day. She may have been wrong in this or it may have been that the head-teacher and others from School G were able to answer these areas of concern  satisfactorily for the tribunal, but I cannot see that evidenced in its reasoning.

 

42.             The evidence from National Deaf CAMHS and Ms Cameron raised significant and serious issues about the Sam’s anxiety and acute noise sensitivity, and its resultant impact on his learning and his and others well-being. The tribunal noted all of this evidence and did not rejected it. In those circumstances, in my judgment it was incumbent on the tribunal to address this evidence in its findings of fact and reasons for decision, and its failure to do so amounts to a material error of law.

 

 

 

Second error of law – tribunal unlawfully constituted

 

43.             This second error of law has wider implications for the First-tier Tribunal generally, however it is one which in my judgment flows necessarily from the decision of the three judge panel in MB and others –v- SSWP (ESA and DLA) [2013] UKUT 111 (AAC); [2014] AACR 1.  In short, I consider that the First-tier Tribunal must have the same, no more than three, person constitution throughout the appeal proceedings. In deciding this appeal the tribunal was made up of four members and thus was constituted unlawfully, and this provides a separate ground for setting aside its decision.

 

44.             Paragraph 6 of the 16 December 2009 Practice Statement, as amended, on the Composition of tribunals in relation to matters that fall to be decided by the Health, Education and Social Care chamber on or after 18 January 2010 sets out that an appeal such as this one is to be decided by three tribunal members. It provides, relevantly, that in a special educational needs case:

 

“A decision that disposes of proceedings made at, or following a hearing, must be made by:-

a.                   One judge; and

b.                  Two other members where each other member has substantial experience of educational, child care, health; or social care matters;….”  

 

 

45.              This Practice Statement is made pursuant to article 2 of the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008, which provides:

 

“2.—(1) The number of members of the tribunal who are to decide any matter that falls to be decided by the First-tier Tribunal must be determined by the Senior President of Tribunals in accordance with paragraph (2).

 

(2) The Senior President of Tribunals must have regard to–

(a) where the matter which falls to be decided by the tribunal fell to a tribunal in a list in Schedule 6 to the Tribunals, Courts and Enforcement Act 2007 before its functions were transferred by order under section 30(1) of that Act, any provision made by or under any enactment for determining the number of members of that tribunal; and

(b) the need for members of tribunals to have particular expertise, skills or knowledge.”

 

46.             In MB the majority of three-judge panel held that the source of the authority for the provisions in the Practice Statement came from the requirement in paragraph 15(1) of Schedule 4 to the 2007 Act that the:

 

“Lord Chancellor must by order make provision, in relation to every matter that may fall to be decided by the First-tier Tribunal or Upper Tribunal, for determining the number of members of the tribunal who are to decide the matter.”

 

47.              In MB it was decided that the words “in relation to every matter that may fall to be decided by the First-tier Tribunal” in paragraph 15(1) of Schedule 4 to the 2007 Act:

“are calculated to indicate the widest possible ambit of matters that must be considered by a tribunal in the course of ultimately coming to a decision on whatever case or part of a case is before it. That is supported by the earlier reference in sub-paragraphs (1) and (2) of paragraph 14 to the Senior President’s duty to choose the member or members of a Chamber who are to exercise the function of deciding any matter in a case before the tribunal.” [para. 26]

The three-judge panel’s majority membership went on (in paragraphs 27-30):

“27. We see no warrant for interpreting the words as restricted to the particular function of ultimately coming to a decision on whatever case is before the tribunal, and excluding the process of pre-hearing reading of material and preparatory discussion and the hearing and testing of oral and written evidence and submissions. To do so would involve the making of what seems to us an impossible distinction between the making of the decision in an appeal and the necessary process providing the basis for that decision, a distinction that runs counter to our practical experience of decision-making in tribunals. In reality the whole process of decision-making forms a seamless web, starting with the pre-reading of the documents sent to the members chosen to sit in a case. At that stage initial and provisional views will be formed, gaps in the evidence or legal arguments identified and potential questions formulated. That will feed into the pre-hearing discussion and preparation among the members on the day of the decision, into the questions and points raised by the members during the hearing, into each member’s evaluation of the evidence and submissions and eventually into the formulation of the decision on the appeal and the reasons for it. In our judgment none of those stages can be separated out as not being a part of the function of deciding the matter in issue in an appeal.

28. If we are wrong about that as a matter of the ordinary meaning of the words used, we consider that the overall context and the width of the words used is sufficient to make it clear that the duty in paragraph 15(1) of Schedule 4 to make provision was intended to encompass all those matters, like those just mentioned, which are an inevitable and indissoluble part of the process of coming to a decision.

29. Article 2 of the Composition of Tribunal Order must then be interpreted in the same way in imposing a duty on the Senior President to determine the number of members who are to decide any matter. Thus, when paragraphs 4 and 5 of the Practice Statement use the form of words that a tribunal must consist of three or two members respectively where the appeal involves the assessments underpinning either DLA or ESA, there is no reason stemming from the terms of the legislation requiring the Senior President to determine the number of members to decide any matter to restrict the numbers requirement to any particular part of the whole process of coming to a decision.

30. If we are wrong about that last point, there remains the Senior President’s duty under paragraph 14(2) of Schedule 4 to the 2007 Act to choose the members of a Chamber who are to exercise the function of deciding any matter. As explained in relation to the qualifications requirement in [8] above, that duty has been delegated. Whether or not the duty as delegated is constrained by what is set out in the Practice Statement as to qualifications or numbers (on the assumption that we are wrong above about the scope of the numbers requirement), once a particular number of members of particular qualifications have been chosen, those members constitute the tribunal. It appears to us that the “function of deciding any matter” which those members have been authorised to carry out must include everything in the necessary process of pre-hearing reading of material and preparatory discussion and the hearing and testing of oral and written evidence and submissions leading to the ultimate making of the decision.”

 

48.             Unless I can distinguish MB, I ought to follow it: see Dorset Healthcare NHS Foundation Trust –v- MH [2009] UKUT 4 (AAC) at paragraph [37(iii)]:

 

“In so far as the AAC is concerned, on questions of legal principle, a single judge shall follow a decision of a Three-Judge Panel of the AAC or Tribunal of Commissioners unless there are compelling reasons why he should not, as, for instance, a decision of a superior court affecting the legal principles involved.”

 

 

49.             I can identify no good basis for distinguishing MB, particularly on the first basis for its conclusion set out in paragraphs 26-27 of the decision. I therefore consider that I must follow it so as to conclude that on the “seamless web” of decision-making – including the pre-reading, formulation of preliminary views, questioning of witnesses, assessment of the evidence and the decision to adjourn on 26 November 2013, as well as the pre-reading, formulation of views, questioning of witnesses, assessment of the evidence given and decision then made on the appeal – the First-tier Tribunal has a membership of three, and three only. Put another way, the specialist member who sat on the tribunal on 26 November 2013 but not on 7 July 2014 was just as much a member of the tribunal in relation to the matters that fell to be decided by the tribunal as the three members that sat and gave the final decision on the appeal.  The “number of the members of the tribunal who are to decide the matter” (per para. 15(1) in Schedule 4 to the 2007), is, however, three and three only. Although formally it may be said that the number who gave the substantive decision on the appeal was only three, the number who took part in the wider decision-making process as identified in MB was in fact four.

 

50.             A potentially difficult aspect for this analysis, but one which did not feature in the argument before me, is whether the terms of paragraph 6 of the 16 December 2009 Practice Statement, and in particular the words “[a] decision that disposes of proceedings made at, or following a hearing, must be made by a tribunal of three” (my underlining added for emphasis), may be said to lead to a different result from that in MB and limit the three person membership constraint only to the final, outcome decision which disposes of the proceedings.

 

51.               I can see the force of this argument. However, the problem with it, and why I ultimately reject it, is that it leaves unanswered the extent of the membership who is to decide any other matter on the way to the final decision, and yet, as held in MB, paragraph 15(1) of Schedule 4 to the 2007 Act requires (“must”) the Lord Chancellor to make provision as to the number of members of the First-tier Tribunal who are to decide “every matter that may fall to be decided”. The mandatory terms of paragraph 15(1) it seems to me contemplate that the Lord Chancellor (or Senior President of Tribunals under the 2008 Composition of Tribunal Order), must by order make provision for the number of members of the First-tier Tribunal who are to decide every matter that may fall to be decided by it, and following MB that means providing for the number of members of the tribunal who are to be involved in all stages of the “seamless web” of decision making. 

 

52.              One answer may be to say that on the basis of the MB analysis the terms of paragraph 6 of the Practice Statement do not fully discharge this legal obligation as they only lay down the membership for one, albeit the final, stage of the decision-making. That however would have the unsatisfactory result that the Practice Statement is contrary to paragraph 15(1) of Schedule 4 to the 2007 Act and leaves it entirely open as to the number of members of the tribunal who can hear evidence etc before the membership has to be reduced or increased to three when it comes to making the final, disposal decision, which cannot in my judgment have been intended.

 

53.              The better answer, in my judgment, however, although I accept a not entirely satisfactory one, is to read the Practice Statement as intended to comply fully with the duty in paragraph 15(1) of Schedule 4 to the 2007 Act.  In this regard it is instructive to note that under paragraph 10 of the Practice Statement, which applies to ALL CASES (i.e. all tribunals in the Health, Education and Social Care Chamber), it is provided that “Any other decision….must be made by: a. One judge”.  Read literally, and consistently with the MB analysis of the scope of paragraph 15(1) of Schedule 4 to the 2007 Act, this would mean that all other decisions made by the First-tier Tribunal on the way to making the final, disposal decision - such as decisions as to whether to adjourn for further evidence and what late evidence is or is not to be accepted - must be made by the judge alone, but I cannot accept that as making any sense in the context of a tribunal set up deliberately with specialist members input and where the specialist expertise of those members in, for example, educational or child care matters, is likely to play a significant role in deciding, for example, whether to adjourn for further evidence or what late evidence to admit.

 

54.              Given these considerations I therefore prefer to conclude that any decisions along the way to arriving at the decision to dispose of the proceedings at, or following, a hearing fall just as much within paragraph 6 of the Practice Statement as does the final decision, as they are part of that decision-making process, and so must be made by the same three members of the First-tier Tribunal.

 

55.              It was argued on behalf of Barnsley MBC that, even if this proposition was legally sound generally, on the facts of this case the parents through the actions of their representative not objecting to the differently constituted tribunal continuing with the appeal on 7 July 2014 had waived the right to now take this as an error of law argument. I do not accept this. The argument is based, in part, on what seems to me to have been a misunderstanding about Ms Jackson’s qualifications, a misunderstanding which arose, it seems, from the parents wrongly saying in a standard First-tier Tribunal form that Ms Jackson was legally qualified.  A witness statement was put before me at the hearing by the solicitors now acting for the parents, which I accept, in which it is stated that on enquiry with IPSEA the solicitor had established that Ms Jackson is neither a solicitor nor a barrister, and was not a practising lawyer, and was representing the parents at the appeal hearings as a lay person.

 

56.              Given this factual background, I do not accept that any waiver argument can be made good. It has to be remembered that what is in issue here is a statutory requirement as to the number of members of the tribunal, and moreover one where Parliament has legislated that a party can only consent to a different number of members if it is fewer than the number which would ordinarily decide the appeal.  Paragraph 15(6) of Schedule 4 to the 2007 Act provides the only statutory exception in terms of numbers of members of the First-tier Tribunal. This provides:

 

 

“Where under sub-paragraphs (1) to (4) a matter is to be decided by two or more members of a tribunal, the matter may, if the parties to the case agree, be decided in the absence of one or more (but not all) of the members chosen to decide the matter.”

 

 

Such explicit statutory provision may arguably oust any possibility of parties agreeing, or waiving the right to disagree, to a tribunal being constituted by a number greater than that laid down in the Practice Statement.

 

57. However, I do not need to decide this point on this appeal and so do not give further consideration to it or Mr Hyams’ argument against it based, as I understood, it on R-v- Soneji [2005] UKHL 49; [2006] 1 AC 340.  I do not need to do so because, even if waiver can apply, I do not consider the strict conditions for waiver are here satisfied.  Ms Jackson was not legally qualified, no-one (including the tribunal) was seemingly aware that there may have been a jurisdictional issue as to the tribunal’s composition, and in those circumstances I do not consider there was a “voluntary, informed and unequivocal election by the parents or their representative not to…… object [to the tribunal’s constitution]”: per Lord Bingham at paragraph [31] of Miller –v- Dickson [2002] 3 All ER 1041.  As Lord Bingham put it later in the same paragraph of Miller:

 

“…it cannot meaningfully be said that a party has voluntarily elected not to claim a right or raise an objection if he is unaware that it is open to him to make the claim or raise the objection.” 

 

58. As to perhaps more general arguments as to legal effect of the tribunal having been wrongly constituted, I bear in mind and endorse what was said in MB at paragraph 11:

 

“…we are concerned with whether any failures to comply with the Practice Statement are points of law upon which a successful appeal pursuant to section 11 of the 2007 Act can be based. In our view, in line with the approach of the parties and the earlier cases, going back at least as far as R(SB) 2/88 on much earlier provisions, if it is established that there has been a failure to comply with the numbers requirement in the Practice Statement this has the consequence that the decision concerned involved the making of an error on a point of law and so the Upper Tribunal may (but need not) set aside the decision. But, as the error of law relates to the identity of the decision-makers required by the Practice Statement it seems to us that it would only be in rare circumstances that the Upper Tribunal would refuse to set aside the decision.”  

 

59. This statement of legal principle provides the correct basis for addressing the other arguments on this issued raised by Mr Hyams. Insofar as he sought to make a separate argument here based on Soneji to the effect that Parliament did not intend a wrongly constituted First-tier Tribunal to amount to a vitiating error of law, I reject it.  I do so because to accept the argument would: (a) run contrary to paragraph 11 of MB; and (b) be inconsistent with the terms of paragraph 15(6) of Schedule 4 to the 2007 Act, which at least in this regard I read as providing a clear indication from Parliament that a properly constituted specialist tribunal lies at the heart of lawful decision making by the First-tier Tribunal.

 

60. I also reject Mr Hyams’ argument seeking to draw an equivalence with the de facto judge doctrine as developed in cases such as Fawdry –v- Murfitt [2003] QB 104, Coppard –v Customs Comrs [2003] QB 1428, and Baldock –v- Webster [2006] QB 315.  There is no question here about whether the tribunal judge or any of the three specialist members had authority to sit on the First-tier Tribunal deciding the parents’ appeal.  The issue was whether they were properly constituted in so doing, which the de facto judge does not address but which MB does.

 

61. It is also useful as a safeguard to stand back from the above analysis and consider whether the decision I have arrived at on this issue is consistent with the First-tier Tribunal deciding an appeal “fairly and justly” (as per its “overriding objective”). In my view it is. Here we had an appeal that had plainly gone part heard.  Having heard part of the evidence only, fairness and justice in my judgment dictated that the tribunal which, so to speak, picked up the evidential thread again at the second hearing had to have the exact same membership.  If it was not so constituted then the new tribunal member would not have been able to hear and appraise the evidence previously given (here including Ms Cameron’s oral evidence) and so would be participating in deciding the appeal on an incomplete evidential basis. Also relevant here is the preliminary views and discussions the first three tribunal members may have had and formed on the evidence they had heard on 26 November 2013, which may then have shaped the remaining two members thinking when they came to decide and dispose of the appeal after the second hearing. These would of course have been views and discussions the new (i.e. fourth) member could not have been involved in. In these circumstances it seems to me that fairness and justice would require either that the tribunal sitting on the second hearing be the exact same in terms of its membership or that it be completely differently constituted if it had to re-decide all issues and so re-hear all the evidence.  The above reading of the statutory scheme dovetails with this more general, common law analysis. 

 

Conclusion

 

62. For these reasons, the First-tier Tribunal’s decision dated 14 July 2014 must be set aside.  The Upper Tribunal is not in a position to re-decide the first instance appeal. The appeal will therefore have to be re-decided by a completely differently constituted First-tier Tribunal (Special Educational Needs and Disability).  It is hoped that that may be able to be done as soon as possible.

 

63. The parents’ success on this appeal to the Upper Tribunal on error of law says nothing one way or the other about whether their appeal to the First-tier Tribunal will succeed on the facts, as that will be for that tribunal to assess in accordance with the law and once it has properly considered all the relevant evidence.  

 

Signed (on the original) Stewart Wright

Judge of the Upper Tribunal

 

Dated 20^th April 2015