Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

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

Although the decision of the First-tier Tribunal under reference 08-02227, held on 19 May and 9 July 2009, involved the making of an error on a point of law, it is NOT SET ASIDE.

Reasons for Decision

1.           This appeal concerns the special educational needs of Ashley, who is now 13. It came before the Upper Tribunal with my permission. The parties are his mother and the local education authority responsible for maintaining his statement. Before dealing with the grounds of appeal, I want to deal with the use of additional evidence before the Upper Tribunal.

A.          Additional evidence

2.           By ‘additional evidence’, I mean evidence produced to show: (i) the circumstances as they were at the time of the hearing before the First-tier Tribunal; (ii) that those circumstances have changed; (iii) how the local education authority has, or has not, implemented the statement. Parties regularly produce, respond to and complain about the introduction of evidence on these matters. Such evidence is potentially relevant, but only for limited purposes. Its relevance depends on the Upper Tribunal’s powers in the particular case.

3.           Parties may also produce evidence of what happened at the hearing. That evidence is in a different category and does not arise in this case.

4.           Representatives regularly cite court authorities on the use of fresh evidence in the Court of Appeal or in the High Court’s appellate jurisdiction that is now exercised by the Upper Tribunal. Those authorities are relevant only in so far as they are compatible with the statutory authority under which the Upper Tribunal operates.

5.           The Upper Tribunal’s jurisdiction derives from section 11 of Tribunals, Courts and Enforcement Act 2007:

‘11 Right to appeal to Upper Tribunal

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

(2) Any party to a case has a right of appeal, subject to subsection (8).’

This section confers on the Upper Tribunal an appellate jurisdiction over the decision of the First-tier Tribunal. It does not confer an appeal against, or review of, the way that the local education authority has implemented, or failed to implement, the child’s statement. That is a matter for judicial review.

6.           The Upper Tribunal’s powers on an appeal are contained in section 12 of the Act:

‘12 Proceedings on appeal to Upper Tribunal

(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law.

(2) The Upper Tribunal—

(a) may (but need not) set aside the decision of the First-tier Tribunal, and

(b) if it does, must either—

(i) remit the case to the First-tier Tribunal with directions for its reconsideration, or

(ii) re-make the decision.

(3) In acting under subsection (2)(b)(i), the Upper Tribunal may also—

(a) direct that the members of the First-tier Tribunal who are chosen to reconsider the case are not to be the same as those who made the decision that has been set aside;

(b) give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal.

(4) In acting under subsection (2)(b)(ii), the Upper Tribunal—

(a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and

(b) may make such findings of fact as it considers appropriate.’

7.           The first question for the Upper Tribunal under this section is: did the making of the First-tier Tribunal’s decision involve the making of an error on a point of law? The Upper Tribunal must answer this question on the evidence that was before the First-tier Tribunal. A tribunal cannot go wrong in law by failing to take account of evidence that was not before it. See the decisions of the Social Security Commissioner in R(S) 1/88 at [3] and of Underhill J in R (S) v Hertfordshire County Council [2006] EWHC 328 (Admin) at [25]. If the answer to this question is ‘no’, the Upper Tribunal’s only power is to dismiss the appeal. If the answer is ‘yes’, a second question arises.

8.           The second question is: how should the tribunal dispose of the case? There are three options: (a) leave the First-tier Tribunal’s decision in place; (b) remit the case to the First-tier Tribunal; (c) re-make the decision. The tribunal may take account of additional evidence in order to decide which form of disposal is appropriate. If it decides to re-make the decision, evidence will also be needed of current circumstances.

9.           In practice, it can be difficult for parties to know when additional may be relevant. For example, an oral hearing of an application may also consider the appeal and disposal. The Upper Tribunal, and representatives for other parties, need to be flexible in receiving evidence whose ultimate relevance will depend on how the case proceeds. Forcing a party to produce the additional evidence only if and when it is required could lead to inefficiency and delay.

B.          The first ground of appeal - occupational therapy

The tribunal’s reasons

10.        There were two issues for the tribunal to decide on occupational therapy provision for Ashley. First, there was the issue of the content of the statement. The tribunal accepted the parents’ proposed provision in the absence of any report to the contrary, despite reservations that the provision ‘may be excessive’. Second, there was the question whether the provision could be made available locally. This was related to the parents’ preference for a residential placement at a school in North Wales. The presiding judge recorded that this was in issue: ‘Mr Friel ... disputed whether the LA would be able to provide occupational therapy locally as there is a shortage of therapists. Whilst Mr Sale acknowledged that it is not easy to make such provision, he did not accept that it was totally impossible.’ Mr Friel was (and is) counsel for Ashley’s mother and Mr Sale was the presenting officer for the local education authority.

11.        The record of proceedings of evidence taken by the presiding judge reads:

‘prop locally OT – not aware of any in area

Sale. I am not sure.’

It is not clear who made the first remark or what the first word is short for.

The refusal of permission by the First-tier Tribunal

12.        The application for permission to appeal was referred to the judge who presided at the hearing of the appeal. She decided to review the decision, but took no action on the review and refused permission to appeal. That approach suggests that the judge did not understand the relevant provisions of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699):

‘Tribunal’s consideration of application for permission to appeal

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).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.

…

Application for review in special educational needs cases

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.

…

Review of a decision

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.’

13.        Under those rules, the tribunal judge should have dealt with the application for permission to appeal in this way. The judge should first have considered whether to review the tribunal’s decision. She could do so only on either of two grounds: (a) that there was an error of law in the decision; (b) that there had been a relevant change of circumstances since the decision was made. Then, if she either did not review or took no action on review, she should have decided whether to give permission to appeal.

14.        The judge recorded that she had reviewed the decision, but taken no action on the review. That could only have meant, in the circumstances, that she considered there was an error of law in the tribunal’s decision. That does not mean that she had to give permission to appeal. She might, quite consistently, have considered that there was an error of law but exercised her discretion to leave it to the Upper Tribunal to decide whether to give permission. That would, though, be unusual. In most cases, a judge who reviewed for error of law but took no action would give permission. It is, therefore, surprising that, having decided to review, the judge refused permission to appeal. I suspect that she overlooked the limited grounds on which she was entitled to review.

15.        On the issue of occupational therapy, the judge wrote:

‘The level of therapy proposed for Ashley in Part 3 is no greater than that commonly provided to a pupil in a mainstream school. In such a case the Tribunal would not expect an LA to provide precise details of arrangements for the delivery of that provision. Specifically, the LA acknowledged that it was likely to be employing an independent occupational therapist and thus, for reasons related to contract law it would be unreasonable to expect the LA to provide full details of proposed therapists. The fact that the LA acknowledged a shortage of therapists in the local area did not mean that a therapist could not be made available, as suggested in the Grounds of Appeal.’

16.        Those reasons do not appear in the tribunal’s reasons. If a tribunal reviews its decision, it has power to ‘amend reasons given for the decision’: see section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007. So, the judge could have added to the tribunal’s reasons by way of amendment. However, that power only arose on a review and she recorded that she was taking no action on the review. The tribunal’s reasons have not, therefore, been amended. They must be taken as they stand.

17.        I note that if the judge had amended the reasons for the decision, she should in fairness have allowed an opportunity for the grounds of appeal to take account of the changes to the reasons. The amendments might have provided further grounds for appeal.

18.        When dealing with an application for permission, I regularly refer to what Richards LJ said in Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [67]. The Court was unhappy at the lengthy reasons given by the Competition Appeal Tribunal for refusing permission to appeal to the Court of Appeal. Richards LJ said that they were ‘not to be used as a source of additional reasoning on the issues in dispute before it’. That comment applies equally to refusals of permission by the First-tier Tribunal.

My grant of permission

19.        I gave permission to appeal, because I was particularly concerned at the tribunal’s approach to the occupational therapy provision for Ashley. I was concerned that the tribunal’s reasons left open the possibility that the authority might be unable to provide occupational therapy. The issue had been raised at the hearing and the tribunal had not dealt with it in its reasons.

The local education authority’s response to the appeal

20.        In responding to the appeal, the local education authority submitted:

‘The Local Authority accepts that Ashley has a need for occupational therapy which is recorded in Part 3 of his Statement. The delivery of this therapy is a responsibility which the Local Authority must fulfil. The evidence of the local authority was that there were difficulties associated with the public provision of occupational therapy. If such difficulties proved to be insurmountable, the Local Authority accepts that [it] would have to provide therapy in school by means of a private arrangement with an independent therapist. The correct position is clearly stated in the Tribunal’s reasons for deciding to refuse the appeal – see paragraph (2).’

21.        The authority added that a private therapist had now been identified.

The appellant’s reply

22.        Mr Friel acknowledged that a therapist had now been identified, but criticised the authority for the time it had taken. I have already explained that it is not my role to deal with how the local education authority has implemented a statement or a tribunal’s decision.

Conclusion

23.        The tribunal’s reasons were inadequate to deal with the issue of occupational provision. The issue was raised at the hearing. I accept that the presiding judge was honest in her recollection of the tribunal’s reasons and accurately stated them when she refused leave. But her need to add to the tribunal’s reasons merely underlines that they did not deal with the issue adequately. As the tribunal’s reasons were inadequate, it made an error of law in its decision. That leave the issue of disposal. I have power to make no order in respect of an error; see the words in brackets in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. As occupational therapy has now been arranged, it would not be appropriate to remit the case for rehearing on this ground.

C.          The second ground of appeal – section 9 of the Education Act 1996

24.        This provides:

‘9 Pupils to be educated in accordance with parents’ wishes.

In exercising or performing all 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.’

25.        Mr Friel relied on the decision of the Court of Appeal in R (M) v Hounslow London Borough Council [2010] 2 All ER 467. He argued that the tribunal failed to consider Ashley’s reaction to education, the availability of provision, that the school was not meeting his needs, and the medical evidence. The local education authority submitted that the Court of Appeal was concerned only with section 319, not section 9. Mr Friel replied that the tribunal was wrong to ask simply whether the school identified by the authority could meet Ashley’s needs.

26.        I accept the local education authority’s submission that the Court of Appeal’s decision is not relevant to section 9. It concerns section 319. Having read the only judgment, of Aikens LJ, I can see nothing in the reasoning that applies to section 9.

27.        I also accept the local education authority’s submission that the tribunal did not misdirect itself on, or misapply, section 9. Its remarks have to be read in the context of the tribunal’s reasons as a whole. The local education authority identified a particular school. The tribunal had to decide whether to confirm or change that part of Ashley’s statement. It is convenient to pick up the tribunal’s reasoning at paragraph F on page 164. It said that it would have preferred ‘a secondary school with a resourced unit’, but none was available. It is important to remember that a tribunal’s reasons do not have to record the sequence of the tribunal’s thoughts as it reaches a conclusion. They are written after that process is complete in order to explain the decision. In this case, they were written after it had decided to confirm the school identified by the local authority. When read in that way, the quotation was a merely a statement that there could be better provision than the school identified. There is no error of law there, because the requirement is for provision to be appropriate, not necessarily perfect.

28.        The reasons then dealt with whether a mainstream placement would be appropriate. Having decided that it would, it considered whether the identified school was appropriate. It dealt with that in paragraph L on page 165. The explanation in that paragraph is clear and adequate to explain why it was an appropriate school to meet Ashley’s needs as identified earlier in the decision.

D.          The third ground of appeal – how the tribunal dealt with expert evidence

29.        Mr Friel made two points on the expert evidence. First, the tribunal had not recorded the evidence of two experts in its reasons. Second, it had not adequately explained how it dealt with that evidence. In response, the local education authority submitted that the tribunal was an expert one that did not have to accept an expert’s recommendation and that it had explained adequately how it had come to its decision. Mr Friel had nothing to add in reply.

30.        I reject Mr Friel’s first point. A tribunal is not required to set out evidence and submissions in its reasons. It may do so. In some cases, it may have to do so in order to explain how it made its decision. But a restatement of the evidence is not required as a matter of course.

31.        I also reject Mr Friel’s second point and accept the authority’s argument. The tribunal had to make its own assessment of the expert evidence. It was impressed by the headteacher of the indentified school and accepted her evidence that Ashley did not perform well in formal testing. It was entitled to form that impression, having heard her evidence and seen her response to questions. It was entitled to rely on her evidence and assessment of Ashley’s ability. The expert’s evidence was naturally based on formal testing and, to that extent, was undermined by the evidence that the tribunal accepted. In respect of the school that Ashley and his parents preferred, the tribunal also noted that he had attended but had had difficulties settling even when his parents were near by. The tribunal may not have expressly addressed the experts’ evidence, but that is not necessary. Its essential reasoning is clear. A tribunal has to provide adequate reasons, not perfect ones.

E.          Disposal

32.        The Upper Tribunal has the power, but not a duty, to hold an oral hearing of an appeal. Mr Friel asked for an oral hearing; the local authority did not. Having considered the clear and detailed arguments for the parties, I was satisfied that an oral hearing was not necessary to decide this appeal. For the reasons given above, the tribunal did go wrong in law, but I have exercised my discretion not to set its decision aside.

 

Signed on original on 22 June 2010

Edward Jacobs Upper Tribunal Judge