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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Essex County Council v TB (SEN) (Special educational needs : Special educational provision - naming school) [2014] UKUT 559 (AAC) (15 December 2014) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2014/559.html Cite as: [2014] UKUT 559 (AAC) |
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IN THE UPPER TRIBUNAL Case No. HS/2026/2014
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Attendances:
For the Appellant: Mr Paul Greatorex of counsel, instructed by Essex County Council
For the Respondent Ms Anna Tkaczynska of counsel, instructed by Moore Blatch Resolve LLP
Decision:
(a) the local authority shall, subject to any further direction made by the First-tier Tribunal, provide to the First-tier Tribunal within 21 days of this decision being issued to the parties, figures (agreed with the Respondent if possible) for the current comparative cost to public funds of placing Amirah at LCCCP or the maintained primary school;
(b) further case-management directions are to be issued by the First-tier Tribunal.
REASONS FOR DECISION
1. This is primarily an appeal, brought by Essex County Council with the permission of the First-tier Tribunal, against a decision of 19 February 2014 whereby the First-tier Tribunal named an independent specialist school in Part 4 of the statement of special educational needs in respect of a child called Amirah.
The facts and submissions
2. The case has a complicated procedural history. Amirah had just turned 7 years old when the First-tier Tribunal made its decision on 19 February 2014. She suffers from severe physical disablement but not from learning difficulties. She moved to Essex with her mother, the Respondent, in early 2013. At that time, she was attending a mainstream primary school in East London on three days a week and the independent specialist school, the London Centre for Children with Cerebral Palsy (hereinafter “LCCCP”), in North London on two days a week. Having become the relevant local authority, Essex County Council made a statement of special educational needs. In Part 4, it named a mainstream primary school in Essex.
3. The Respondent appealed to the First-tier Tribunal against the statement, raising various matters in relation to Parts 2 and 3 and asking that LCCCP be named in Part 4. A placement at LCCCP was not seen as a long-term need, the argument being that LCCCP would develop Amirah’s physical skills so that she would be better able to learn in a mainstream school in the future. There was also a suggestion that the transition from LCCCP to the mainstream primary school might involve a period when she attended both schools in the way she had been doing since April 2013.
4. The local authority argued in its response that the evidence did not show that LCCCP would be an appropriate and suitable placement for the child and that placement there would represent unreasonable public expenditure even if there were to be a split placement. It also expressed concern about Amirah travelling the 15 miles to LCCCP rather than the 1½ miles to the mainstream primary school.
5. There was a hearing before the First-tier Tribunal on 15 October 2013, following which the First-tier Tribunal issued a decision on 4 November 2013. Amendments were made to Parts 2 and 3 of the statement of special educational needs but the First-tier Tribunal decided that the mainstream primary school should continue to be named in Part 4, subject to there being a careful transition.
6. In paragraphs 9 to 31 of the statement of reasons, the First-tier Tribunal recorded the evidence in some detail. In paragraph 12, it noted that a specialist teacher giving evidence for the local authority had said in oral evidence that Amirah did not require specialist teaching but “needed to have a peer group of children with similar or slightly higher cognitive ability”, although she had not made recommendations in her report. In paragraph 13, it noted that an educational psychologist giving evidence for the Respondent had said his “very recent experience of [LCCCP] would suggest there is an appropriate peer group for Amirah”. In paragraph 30, the headteacher of the independent specialist school was recorded as having given evidence that Amirah was in a key stage 1 class with five other pupils aged six, seven and eight, two of whom “were non-verbal” but was in a class of five pupils based on ability for core subjects, two seven year olds and two key stage 2 pupils aged nine and ten.
7. At paragraph 31, the First-tier Tribunal recorded evidence in respect of cost which it understood showed that a placement at LCCCP would cost £14,219.50 more per annum than a placement at the mainstream primary school.
8. In its conclusion it decided that the mainstream primary school would provide Amirah with suitable education and then it said –
“39. Having reached this conclusion, we went on to consider [the mother’s] preference for LCCCP to be named in Part 4 of Amirah’s statement. The difference in cost of the two placements is significant and it was our view that a placement at [the independent specialist school] would represent unreasonable public expenditure. …
40. We proceeded to consider whether Amirah would have any additional benefit from a placement at LCCCP. We were unable to find any such benefit. We were not convinced as to the long term impact on Amirah of her attendance at LCCCP. We accepted that Amirah had been successful in becoming toilet trained in a short time. This will have been a significant improvement in the quality of her life and a significant achievement. However, the evidence showed that Amirah was able spontaneously and independently to do the same things in September 2012, before she started attending LCCCP, as she could in July 2013, having attended for two days a week for four months. Further, after the six week summer holidays, her physical abilities had noticeably regressed. We also considered that Amirah would not have suitable communication role models and would have a limited peer group at LCCCP. She would be one of the youngest pupils but one of the highest achievers in her core skills group. Two of the pupils in the Key Stage 1 group are non-verbal. It was our view that Amirah has a need for a peer group with whom she can develop her communication skills. We were also concerned that she would spend seven and a half hours in her wheelchair travelling to LCCCP.”
9. On 27 November 2013, the Respondent applied for permission to appeal. Reference was made to section 9 of the Education Act 1986, which provides –
“9. In exercising or performing their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”
10. It was asserted in paragraph 6 of the grounds of appeal that –
“The effect of this obligation is that where both schools could meet the child’s needs the parents choice of school should be named unless it is much more expensive than the local authority’s choice: C v Buckinghamshire CC [1999] ELR 179.”
11. It was then submitted that the First-tier Tribunal’s decision was flawed because LCCCP had employed a full-time occupational therapist, without increasing the fees, so that the local authority would not need to meet additional costs for occupational therapy and the difference in the costs between the two potential placements would be reduced.
12. It was further submitted that the First-tier Tribunal erred in law in three respects. First, it had misunderstood the Respondent’s evidence and that she was in fact willing to meet the transport costs so that, taking also the physiotherapy point, the cost of placing Amirah at LCCCP would actually be less than placing her at the mainstream primary school. Secondly, it had erred in making a finding that there would be no additional cost in providing speech and language therapy at the mainstream primary school on the basis of an assertion by the local authority’s representative concerning a service level agreement between the regional health authority and the local authority. Thirdly, it was submitted that the First-tier Tribunal had not given adequate reasons for rejecting expert evidence from Dr Reid, an educational psychologist, as to the peer group available for Amirah at LCCCP and the physical environment at the mainstream primary school.
13. Rather than granting or refusing permission to appeal, Judge Brayne, a salaried judge of the First-tier Tribunal who was not the judge who had presided at the original hearing, issued a decision on 5 December 2013 to the following effect –
“DECISION
a. The Tribunal has decided to review the decision in part pursuant to Rules 47(1) and 48.
b. The decision is remitted to the original panel to review the part of the decision which relates to Part 4 placement.
c. The panel is to take account of the LA’s submissions, so long as any submissions are received by the Tribunal no later than 5 pm 20 December 2013.
REASONS FOR DECISION
1. There has been an error of law in that the Tribunal wrongly calculated the difference in cost to the LA of a placement at [the maintained primary school] and LCCCP.
2. There was no error of law in the Tribunal’s decision relating to transport costs. The record of proceedings and panel members’ recollections show that the ability of the parent to provide transport was contingent on a damages award. However circumstances have since changed. She is now willing to commit to providing transport in any event. On its own this would not merit a review as the parent has, in effect, changed her mind. However it can be taken into account in any review for error of law.
3. There has been a change of circumstance, in that LCCCP has appointed an occupational therapist. Costs of buying in OT provision for Amirah can be discounted when calculating marginal cost to the LA of a placement at LCCCP. This is a ground for review under Rule 48.
4. Notwithstanding reservations expressed in the decision, the Tribunal accepted the suitability of LCCCP. It was not an error of law not to explain how it evaluated the evidence of Dr Reid, which was principally relevant to and supportive of this conclusion. However, on review the Tribunal now has the opportunity, if relevant, to explain its reasoning further.
5. It was not an error of law to accept evidence of a service level agreement from an officer of the LA, even if the officer is also a representative. It would not be proportionate to require all witnesses of this sort to be corroborated. It can be assumed that such a witness is telling the truth, but the evidence can be challenged during a hearing if disputed.
6. For these reasons a review is appropriate, limited to the issue of reasonable public expenditure in respecting parental preference under section 9 Education Act.”
14. The local authority made a submission following that decision in which it accepted that the change of circumstances relating to the employment of a physiotherapist at LCCCP merited a review under rule 48 and it also accepted that the First-tier Tribunal had erred in relation to transport costs, although for different reasons from those advanced by the Respondent that I am not sure that I altogether follow. It calculated that a placement at LCCCP (£39,393 pa) would still be more expensive than a placement at the maintained primary school (£34,008). It further submitted that the First-tier Tribunal had not accepted the suitability of LCCCP and that its decision had not supported placement at the mainstream primary school and was not limited to the issue of unreasonable public expenditure. It agreed that there was no error of law in “accepting the evidence of a Local Authority Officer in relation to a service level agreement”. Finally, it accepted that a review in relation to Part 4 was appropriate but contended that, in any event, the figures demonstrated that placement of Amirah at LCCCP would constitute unreasonable public expenditure and would be incompatible with the efficient use of resources.
15. The original panel of the First-tier Tribunal did not agree with the local authority’s figures. In its further decision dated 19 February 2014, it implicitly accepted that the total cost of a placement at the maintained primary school had been misstated in the original decision but, using the figures for individual elements that it had used originally, it considered that the cost of a placement would be £46,008.50 pa at the maintained primary school as against £39,393 pa at LCCCP if there were no occupational therapy or transport costs associated with LCCCP. It then continued –
“4. Therefore, whilst we continue to have reservations about the placement at LCCCP, particularly in relation to lack of peers with whom Amirah would be able to communicate, we acknowledge that provided [the Respondent] is responsible for the cost of transport, Amirah’s placement at LCCCP would not constitute unreasonable public expenditure. We therefore find that in these circumstances [the Respondent’s] preference should prevail.
5. We accordingly amend the decision, on relation to Part 4 of Amirah’s statement to read as follows: “A special school for pupils with cerebral palsy, London Centre for Children with Cerebral Palsy provided that [the Respondent] pays for transport, otherwise [the maintained primary school]’ ”
16. This time, it was the local authority that applied for permission to appeal on the ground that, while the First-tier Tribunal had not expressly stated that LCCCP was unsuitable for Amirah, its decision that she should be placed in a school where she would not have an appropriate peer group was irrational.
17. And this time, Judge Brayne granted permission to appeal, holding that he had no power to review the decision but commenting that, while the Tribunal might have been able to explain the apparent contradiction in finding suitable a school which could not provide a peer group with whom she could develop her communication skills, the explanation did not appear in its decision. He added –
“I make no criticism of the Tribunal for not developing its reasons. In remitting the decision for review I noted that the review should be limited to the change of circumstances and need not address suitability. I was wrong to limit it in this way, as this fresh application has revealed. I made an error of law which, in turn, makes the Tribunal’s decision following review inadequate, in that the reasons for its findings on suitability are not sufficient.”
18. The local authority’s appeal was received by the Upper Tribunal on 10 August 2014. On 24 April 2014, I invited submissions on the way the power of review had been exercised and raised the question whether the appeal ought to be treated as being also an application for judicial review of Judge Brayne’s decision of 5 December 2013.
19. The Respondent resists the appeal, arguing that the First-tier Tribunal’s decision was not irrational but was one it was entitled to make and that, although the First-tier Tribunal clearly had reservations about LCCCP, it did not find it was unsuitable. She argues that the fact that the First-tier Tribunal considered the issue of cost in both its decisions indicates that it did not find the school to be unsuitable because the issue of cost becomes relevant where both proposed placements are found suitable.
20. In its reply, the local authority submits that the case referred to in the Respondent’s grounds of appeal following the first decision does not stand for the proposition advanced in those grounds and that the First-tier Tribunal clearly erred in deciding that, because it found that a placement at LCCCP would be cheaper, therefore, the Respondent’s preference must be accepted. It is further argued that the only sensible reading of the First-tier Tribunal’s decision is that it found that LCCCP was unsuitable.
21. Both parties also made helpful submissions in relation to the power of review, although they argued that it was not necessary to analyse that aspect of the decision-making in order to determine the appeal. I will consider those submissions below.
22. As to the disagreement about the relative costs to public funds of the two placements, I understand the consensus now to be that there was in fact very little difference in the costs if the Respondent was prepared to pay for travel to LCCCP but that the First-tier Tribunal was right to find that the cost of the placement at the maintained primary school would be, at least initially (since it included the one-off cost of an eye gaze system through which Amirah could access a computer), slightly higher than the cost of the placement at LCCCP. It may be, although I am not sure, that the true cost of a placement at the maintained primary school was £40,008.50 and that the £12,000 discrepancy arose because the First-tier Tribunal counted £6,000 delegated by the local authority to the school twice and the local authority failed to count it at all in its submission following Judge Brayne’s first decision. (The use of the delegated funding to pay the first £6,000 of the cost of teaching assistant support might account for the different figures.) However, the amount of the difference is not material because the local authority plainly does not regard any additional public expenditure arising from Amirah attending her local mainstream maintained primary school to be unreasonable.
Discussion and decision on the appeal
23. It seems to me that the local authority’s original grounds of appeal elided two issues that have now been properly separated in its reply drafted by Mr Greatorex. If the issues are separated, I am satisfied that the Respondent really has no answer to the first ground; it is the second that is more contentious and it is important because it determines what relief I should give.
24. In C v Buckinghamshire CC [1999] ELR 179, also reported as Catchpole v Buckingham County Council [1999] LGR 321, Sedley LJ, with whom Thorpe and Stuart-Smith LJJ agreed, accepted that section 9 of the Education Act 1996 did require a local authority to have regard to parental preference when considering whether to name a school in Part 4 of a statement of special educational needs. However, he also said –
“… the reasons for the parental choice are of the first importance; the bare fact of parental choice, which in the nature of things is simply a function of their reasons, is logically of only marginal significance”.
Whereas, under paragraph 3(1) of Schedule 27, a local authority must follow a parent’s choice as between maintained schools, where a parent wishes a child to attend an independent school, section 9 merely requires the local authority to “have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents” (my emphasis). Sedley LJ said –
“… I see no basis in the statute for requiring a tribunal which finds that two schools are adequate but that one is markedly more suitable than the other to the child’s special needs to ignore the difference and abdicate its judgment in favour of the parents’. To do so, since a section 9 choice may lawfully include an independent school, would be to extend the mandatory range of parental choice beyond that to which it is explicitly limited by paragraph 3(1) of Schedule 27. There is all the difference in the world between the argument, rejected in Reg v Cheshire County Council, ex parte C [1998] ELR 66, that a local education authority or a tribunal is bound to specify the best of the adequate schools irrespective of cost and the proposition that, where cost is equal, the authority or tribunal may choose the most appropriate of the adequate schools even if the parents favour a less appropriate one. The latter is what happened here; it happened after full consideration had been given to the parents’ reasons for making a different choice; and it is my view inconceivable that it could have made any difference had the tribunal added in the bare fact that the school which it judged more appropriate to Nicholas’s needs was not favoured by the parents.”
The parents’ appeal was accordingly dismissed.
25. In the light of those passages, I accept the Appellant’s submission that the statement in paragraph 6 of the Respondent’s grounds of appeal against the first of the First-tier Tribunal’s decisions (see paragraph 10 above) does not accurately state the effect of the Court of Appeal’s decision and Ms Tkaczynska sensibly did not seek to defend the statement before me.
26. Even if, as the Respondent contends, the decision made by the First-tier Tribunal in its second decision was one it was entitled to reach, the language of paragraph 4 of that decision suggests that it abdicated its judgement in favour of the Respondent’s in precisely the way that the Court of Appeal held to be unlawful. At the very best, the language is ambiguous and, against the background of the reservations it considered it necessary to express, I cannot be satisfied that it did not make that error of law and so its reasons are inadequate. The Respondent’s argument to the contrary would require me to find not only that the First-tier Tribunal found that a placement at LCCCP would have been suitable for Amirah but also that it would have been more suitable for her than a placement at the maintained primary school. I do not consider that it took that view but, even if it did, its reasoning failed to demonstrate that it had carried out the balancing exercise necessary in the light of its expressed reservations about LCCCP.
27. For these reasons, I am satisfied that the First-tier Tribunal erred in law in its decision dated 19 February 2014 and that that decision must be set aside.
28. However, the local authority argues that it is clear that in fact the First-tier Tribunal considered in its first decision that a placement at the maintained primary school would not only have been have been suitable for Amirah but would have been more suitable for Amirah than a placement at LCCCP and, indeed, that a placement at LCCCP would not have been suitable at all. Therefore, it is argued, I should give a decision naming the maintained primary school rather than remitting the case on the basis that the First-tier Tribunal’s reasoning is inadequate.
29. It is common ground that the two decisions of the First-tier Tribunal must be read together, but the parties put entirely different constructions on them. I am not persuaded by the local authority that the First-tier Tribunal decided that a placement at LCCCP would not be suitable for Amirah in the sense that it would not meet basic standards of adequacy. It did not expressly do so in its first decision and it did not need to do so because it was clearly of the view that, even if a placement at LCCCP would be suitable, it was satisfied that there would be no advantage that might justify the additional cost that it then thought there would be. (Although the Respondent is right that the issue of unreasonable public expenditure logically arises only if both schools are suitable, it is not necessarily improper for the First-tier Tribunal to decide that the additional expenditure was such that it could not be justified by any small advantage there might be, without making a firm decision as to whether there was any small advantage.) I am reinforced in this view by the decision to name LCCCP following the review. It seems very unlikely that, had it actually found LCCCP to be wholly inadequate the First-tier Tribunal would have named the school in its second decision. If it had thought it was bound to do so in the light of Judge Brayne’s ruling, it would, I consider, have informed him that he had misunderstood its first decision and would have invited him to amend it.
30. However, I am satisfied that the First-tier Tribunal considered that a placement at LCCCP would be less suitable for Amirah than a placement at the maintained primary school. It was clearly stated in the second sentence of paragraph 40 of the first decision that the First-tier Tribunal could not find any additional (i.e., additional to that at the maintained primary school) benefit from placement at LCCCP and the following sentences make it clear that it did not regard the benefits of the schools as equal.
31. It is therefore necessary to consider the Respondent’s argument that, if that was what the First-tier Tribunal decided in its first decision, it failed to give adequate reasons for the decision and, in particular, for rejecting the evidence of Dr Reid, the educational psychologist, that there would be an adequate peer group at LCCCP. That Amirah’s small peer group at LCCCP would be less than ideal from an academic perspective seems too obvious to require further explanation. However, it had been argued that it would be adequate from that perspective and that it would have a compensating advantage because Amirah would be able to observe others with similar physical difficulties to hers learning how to cope with them through augmentative alternative communication and the development of other skills. Moreover, it was also argued that LCCCP would have an academic advantage insofar as specialist therapy would be integrated into the timetable so that it would be undertaken without Amirah and her peers missing classes in the way they would in a mainstream school. These arguments have not been addressed. I acknowledge that it is clear that the First-tier Tribunal was sceptical about the value of LCCCP in the light of Amirah’s apparent failure to learn new skills during her part-time attendance of two days a week during the summer term of 2013, but it has not commented further on the expert evidence recommending a placement or considered the possibility of a part-time placement. The overall effect of the reasoning may have been sufficient to show why any claimed advantage was not worth the £14,219.50 pa extra public expenditure that the First-tier Tribunal had contemplated would be involved in a placement in LCCCP, but I do not consider that the reasoning is sufficient to show why a placement at LCCCP would be less suitable than one at the maintained primary school, which was the issue if no extra public expenditure was involved. Thus, the reasoning may have been adequate for the purposes of the first decision but, even if that was so, it became inadequate when the second decision was made. (I have not mentioned concerns about the physical environment at the maintained primary school because the First-tier Tribunal has, in my judgement, adequately addressed those in paragraph 38 of its decision.)
32. Because the First-tier Tribunal has not given adequate reasons for its finding that, overall, LCCCP would be less suitable for Amirah than the maintained primary school, I cannot adopt that finding and decide that the maintained primary school should be named in Part 4 of the statement of special educational needs. Moreover, I consider that the issues that have not been dealt with in the statement of reasons are not ones that I should deal with. The First-tier Tribunal has expert members and judgements as to the relative suitability of two or more schools are more appropriately left to that tribunal. Accordingly, I will remit the case to the First-tier Tribunal.
33. I heard argument as to whether the case should be remitted to the same panel of a different one. The Respondent argued that it should be to a different panel because the previous panel has already had two goes at making a decision. However, the local authority argued that there is no allegation of bias and it would be preferable for the case to go back to the panel that has already considered Amirah’s case, subject to that being practical. I was initially attracted by the local authority’s submission but, upon reflection, I consider that this is a case that should be considered by a differently-constituted panel. A year has passed since the hearing before the First-tier Tribunal and there is effectively a new decision to be made that may require further evidence to be heard. I am not in the end persuaded that the practical advantages of remitting the case to the same panel would, in this case, outweigh the risk of the panel being unfairly influenced by an impression it gained over a year ago that was not at the time fully reasoned.
Reviews and judicial review
34. Despite Judge Brayne’s references to rules 47 and 48 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) as amended, the power of review is actually conferred by section 9 of the Tribunals, Courts and Enforcement Act 2007. The Rules merely limit the grounds upon which the First-tier Tribunal may review its decisions and require that consideration of review should be linked procedurally to applications for permission to appeal.
35. Section 9 of the 2007 Act provides –
“9.—(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).
(2) The First-tier Tribunal's power under subsection (1) in relation to a decision is exercisable—
(a) of its own initiative, or
(b) on application by a person who for the purposes of section 11(2) has a right of appeal in respect of the decision.
(3) Tribunal Procedure Rules may—
(a) provide that the First-tier Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;
(b) provide that the First-tier Tribunal's power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal's own initiative;
(c) provide that an application under subsection (2)(b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;
(d) provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the First-tier Tribunal's power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.
(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following—
(a) correct accidental errors in the decision or in a record of the decision;
(b) amend reasons given for the decision;
(c) set the decision aside.
(5) Where under subsection (4)(c) the First-tier Tribunal sets a decision aside, the First-tier Tribunal must either—
(a) re-decide the matter concerned, or
(b) refer that matter to the Upper Tribunal.
(6) Where a matter is referred to the Upper Tribunal under subsection (5)(b), the Upper Tribunal must re-decide the matter.
(7) Where the Upper Tribunal is under subsection (6) re-deciding a matter, it may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-deciding the matter.
(8) Where a tribunal is acting under subsection (5)(a) or (6), it may make such findings of fact as it considers appropriate.
(9) This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision for the purposes of section 11(1), but the First-tier Tribunal's only power in the light of a review under subsection (1) of a decision under subsection (4)(c) is the power under subsection (4)(a).
(10) A decision of the First-tier Tribunal may not be reviewed under subsection (1) more than once, and once the First-tier Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.
(11) Where under this section a decision is set aside and the matter concerned is then re-decided, the decision set aside and the decision made in re-deciding the matter are for the purposes of subsection (10) to be taken to be different decisions.”
36. Excluded decisions for the purposes of section 11(1) (and therefore also section 9(1)) are identified in section 11(5), which provides –
“(5) For the purposes of subsection (1), an “excluded decision” is—
(a) …,
(aa) …,
(b) …,
(c) …,
(d) a decision of the First-tier Tribunal under section 9—
(i) to review, or not to review, an earlier decision of the tribunal,
(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,
(iii) to set aside an earlier decision of the tribunal, or
(iv) to refer, or not to refer, a matter to the Upper Tribunal,
(e) a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun), or
(f) …”
37. In so far as is relevant, rules 47 to 50 of the 2008 Rules provide –
“47.—(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 49 (review of a decision).
…
48.—(1) This rule applies to decisions which dispose of proceedings in special educational needs cases, but not to decisions under this Part.
(2) A party may make a written application to the Tribunal for a review of a decision if circumstances relevant to the decision have changed since the decision was made.
…
49.—(1) The Tribunal may only undertake a review of a decision—
(a) pursuant to rule 47(1) (review on an application for permission to appeal) if it is satisfied that there was an error of law in the decision; or
(b) pursuant to rule 48 (application for review in special educational needs cases).
(2) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.
(3) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.
50. The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.”
38. When I issued case management directions, I asked the parties the following questions with a view to being able to give guidance to the First-Tier Tribunal as well as being able to express my decision in the correct form –
First, it is arguable that Judge Brayne’s decision of 5 December 2013 is ambiguous since, despite stating that “The Tribunal has decided to review the decision in part”, it then states that “The decision is remitted to the original panel to review the part of the decision which relates to Part 4 placement”. Did Judge Brayne carry out the review to the extent of setting part of the decision aside under section 9(4)(c) or did he leave that to be done by the original panel? If the latter, was paragraph 6 of his ruling appropriate?
Secondly, if Judge Brayne was proposing to set aside part of the decision of 15 October 2013, ought he to have obtained representations from the local authority before doing so?
Thirdly, ought the parties to have been offered a further oral hearing before the original panel re-decided the relevant part of the case under section 9(5)(a)? Did rule 23 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 not apply?
Fourthly, was Judge Brayne right to state on 3 April 2014 that the First-tier Tribunal had no power to review its decision? In the light of section 9(11), could it not have reviewed its decision at least to the extent that it had re-decided the case? Perhaps the bigger issue is whether paragraph 6 of Judge Brayne’s ruling of 5 December 2013 was a direction that he could have set aside on 3 April 2014 or whether it fell within the scope of section 11(5)(d)(i) of the 2007 Act and so could not be reviewed by virtue of the exception in section 9(1).
If Judge Brayne was right that he had no relevant power of review, is it necessary for the present appeal to be treated also as an application for judicial review of his decision of 5 December 2013 and (if his ruling were to be quashed) as an application by either party for permission to appeal against the decision of 15 October 2013?
39. In relation to the first question, Mr Greatorex and Ms Tkaczynska agree that the first decision was set aside by either Judge Brayne or the panel under section 9(4)(c) and that the case was then re-decided by the panel under section 9(5)(a). This is clearly so. Despite the use of the word “amend” in the panel’s decision, the decision was not a mere correction or amendment under section 9(4)(a) or (b). They also agree that Judge Brayne’s decision was ambiguous, Mr Greatorex arguing that the judge had not been helped because the 2007 Act and the 2008 Rules do not use the word “review” in the same sense. However, they both inclined to the view that Judge Brayne had left it to the panel to carry out the review, in which case Ms Tkaczynska argued that the limitation in paragraph 6 of his decision was inappropriate. Mr Greatorex, however, suggested that Judge Brayne had found the threshold conditions for a review in the Rules to be satisfied and had, in effect, given permission for a review on limited grounds and was entitled to do so.
40. There is a complication, which explains how Judge Brayne came to be involved at all. Under the First-tier Tribunal and Upper Tribunal (Composition of Tribunal) Order 2008 (SI 2008/2835), the composition of the First-tier Tribunal is left to be determined by the Senior President of Tribunals who has issued a series of practice statements (published at www.judiciary.gov.uk/publications/) which almost amount to a form of tertiary legislation. Paragraph 9 of the material practice statement provides –
“9. Where the Tribunal has given a decision that disposes of proceedings (“the substantive decision”), any matter decided under, or in accordance with, Rule 5(3)(l) or Part 5 of the 2008 Rules or section 9 of the Tribunals, Courts and Enforcement Act 2007 must be decided by one judge, unless the Chamber President considers it appropriate that it is decided either by:-
a. the same members of the Tribunal as gave the substantive decision; or
b. a Tribunal, constituted in accordance with paragraph 3, 5, or 6, comprised of different members of the Tribunal to that which gave the substantive decision.”
41. Despite the language, I do not consider that it was intended by the Senior President of Tribunals that re-deciding a matter under section 9(5)(a) should be a matter falling within the scope of that paragraph of his practice statement, because the circumstances in which it would be appropriate for a single judge to substitute a decision for one made by a panel including expert members would be relatively uncommon.
42. Functions of a Chamber President may be delegated to other judges under paragraph 4 of Schedule 4 to the 2007 Act but Judge Brayne did not indicate that he was exercising delegated powers when he remitted the case to the original panel. In those circumstances, it seems to me that, contrary to the view expressed by the parties, he probably intended to review the first decision himself and to set it aside insofar as it related to Part 4 of the statement of special educational needs. Clearly, though, it would be good practice expressly to state that a decision has been set aside when that is the case.
43. There seems no reason why a discrete part of a decision should not be set aside under section 9(4)(c), but it is the decision and not the reasoning that may be set aside and, although a single judge may indicate that it is only part of the reasoning that he or she considers flawed, this case illustrates how unwise it can be formally to fetter the scope of the decision to be made by a panel who will re-decide the case even if the case is referred to the panel who made the original decision. It will, I suggest, generally be better for that panel to determine as a case-management issue the extent to which issues should be re-opened in the light of representations from the parties. (For similar reasons, it seems to me to be undesirable for a single judge to purport to find that there is a ground for review and then to refer the question whether there should be a review to a panel. Identifying an error of law, deciding whether a decision should be reviewed and if so in what way and deciding whether permission to appeal should be granted are all interdependent decisions. Splitting up responsibility for them can lead to inconsistency.)
44. In relation to the second question, it follows from the parties’ approach that the local authority was given an opportunity to make representations before the first decision was set aside. However, if Judge Brayne set the decision aside, the local authority was not given such an opportunity. That was not itself inappropriate, but rule 49(3) required that the notice give the local authority an opportunity to have the setting aside itself set aside. It did not, although in the end nothing may have turned on that since the local authority was content for there to be a review provided the same decision was reached when the case was re-decided.
45. In relation to the third question, Ms Tkaczynska argues that there was no requirement to hold an oral hearing when re-deciding the case because rule 23(2) provides that the right to a hearing does not apply to a decision made under Part 5 of the Rules. Mr Greatorex, however, submits that there should have been a hearing unless both parties did not want one. I agree with Mr Greatorex. A review is carried out under section 9 of the Act and not under Part 5 of the Rules. However, where a case is to be re-decided by the same panel as made the original decision in the expectation that most of the original decision will be re-adopted, the parties may well be content to make written submissions. In the present case, the offer of an oral hearing might have prompted the parties to agree the figures which might in turn have led to a more focussed submission by the local authority, whether or not either party sought a hearing if the case was not to be decided in its favour.
46. In answer to the fourth and fifth questions, both parties submit that, since the first decision was set aside and the case was re-decided insofar as it related to Part 4 of the statement of special educational needs, Judge Brayne could, by virtue of section 9(11) of the 2007 Act have reviewed the second decision and he was wrong to state otherwise. I agree. However, given the differences between the parties, granting permission to appeal was anyway more appropriate (see R.(RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC); [2010] AACR 41). There was also the difficulty that Judge Brayne could not review his own first decision, if he had indeed reviewed the first decision of the panel, because his first decision was an “excluded decision” under section 11(5)(d)(i) and possibly (iii) – although he might perhaps have clarified what he had done. It would not have been satisfactory for Judge Brayne to set aside the re-made decision but leave paragraph 6 of his first decision as the basis upon which the case should be re-decided again.
47. It seems to me that, since I have decided that the First-tier Tribunal’s re-made decision should be set aside, I am in the same position. Unless I also set aside Judge Brayne’s first decision, it will continue to govern the approach to be taken when re-deciding the case. Both parties have been doubtful about the need for me to treat the local authority’s appeal as also an application for permission to apply for judicial review but Mr Greatorex was content for me to do so if necessary and I am satisfied that it is necessary. Moreover, since there is agreement as to what the First-tier Tribunal should have done in the light of the Respondent’s grounds of appeal and the First-tier Tribunal could not reasonably have taken any other course, I can substitute a decision that will have the effect of simply leaving the First-tier Tribunal to make a new decision on Part 4 of Amirah’s statement of special educational needs. This can be achieved by a decision setting aside the First-tier Tribunal’s decision of 4 November 2013 in respect of Part 4 of the statement of special educational needs and leaving the case to be re-decided by a panel without further limiting the scope of its decision.
Looking forward
48. Finally, I urge the parties to consider whether they can now reach agreement as to Amirah’s future education. She has in fact been attending LCCCP full-time in accordance with the First-tier Tribunal’s second decision. That was a school with which Amirah was already familiar and the local authority very sensibly did not ask for the effect of the decision to be suspended pending this appeal. Amirah has therefore now been attending LCCCP for some considerable time. The parties agree that she should transfer to mainstream education; it is simply a matter of deciding when that should be and how the transition should be managed. Even if agreement is not reached, an attempt to reach agreement might narrow the issues before the First-tier Tribunal.
