Upper Tribunal (Administrative Appeals Chamber)

LB Enfield v NH and another (SEN) (Special educational needs - other) [2019] UKUT 1 (AAC) (2 January 2019)

Reported as [2019] AACR 19

Tribunal practice and procedure - lack of consistency between order contemplating the possibility of justifying non-compliance or providing for automatic barring - delegation of judicial functions to staff - whether an order in the name of a judge but issued by a clerk without judicial consideration purporting to bar a party from further participation in proceedings has any effect - whether it is a ground for deciding that a school is unsuitable that it could not offer an immediate placement

The parents of E, a child aged 7, wanted her to go to school A, an independent special school substantially more expensive than school B, a maintained special school, which the local authority (LA) considered more appropriate. E's parents appealed to the First-tier Tribunal (F-tT). On 3 April 2018, the F-tT issued case directions in the name of the Deputy Chamber President, as to which there was no evidence who actually issued them, requiring amongst other things, the LA to provide final hearing bundles by 12 noon on 25 May 2018. The directions indicated that "[i]f the LA does not comply with the direction and fails without reasonable explanation to deliver the tribunal hearing bundles by the 25 May 2018 then the further participation of the LA in the appeal shall be automatically BARRED pursuant to Rule 8(2) of the Tribunal Procedure Rules." The LA filed and served the bundle at 10:54 on 29 May 2018 and gave explanation for the delay. At 11:29 on 29 May 2018 an order issued in the name of the Deputy Chamber President but not in fact approved by her or any other judge or an authorised registrar under the relevant Practice Statement barred the LA from participation in the appeal but allowed the LA to apply for reinstatement by writing by 12 noon on 1 June 2018. No application was made before the deadline, but LA's representative attended the F-tT hearing on 15 June 2018 and applied for reinstatement. The F-tT refused the application. The F-tT went on to consider the case and found the school B was not suitable as no immediate placement was available. The F-tT allowed the parents' appeal. The LA appealed to the Upper Tribunal.

Held, allowing the appeal, that:

1. agreeing with SL v SSWP and KL-D [2014] UKUT 0128 (AAC), the tribunal's power to give a direction in terms that lead to the automatic barring of a respondent is subject to the overriding objective and one factor that the tribunal has to take into account is that it should ensure, so far as practicable, that the parties are able to participate fully in the proceedings. There are also practical considerations, for example, the extent of non-compliance. Exercising a power to bar a party from proceedings requires careful thought and the existence of the reinstatement procedure does not mean that "anything goes" (paragraphs 11 and 12);

2. the order in this case was not truly an automatic barring because of the "reasonable explanation" get out or it did not become one until the explanation had been considered and rejected. The LA was entitled to have its explanation for delay given judicial consideration. In the absence of such, the barring order of 29 May 2018 was invalid (paragraphs 10, 13 to 16);

3. if contrary to the above the barring order was valid, the F-tT's exercise of its discretion was in error of law because of its failure to consider the limited extent of default to the part of the LA and prejudice to the parents, ensure parties' participation and the need for proper argument of the significant issues at stake (paragraphs 18 to 22);

4. the F-tT erred in law by concluding that School B was unsuitable. There is no rule of law that a placement must be immediately available at the date of hearing or at the date of decision. (paragraph 23 to 24);

5. The judge set aside the decision of the F-tT and remitted the appeal for rehearing before a differently constituted tribunal.

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