CM HS 3337 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 06 January 2014 |
| Neutral Citation | 2014 UKUT 4 AAC |
| Subject Matter | Special educational needs |
| Respondent | Surrey County Council (SEN) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 3337 2013 |
| Appellant | CM |
Decision: The appeal is allowed. The decision of the First-tier Tribunal on 5 July 2013 under reference SE936/13/00075 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (HESC Chamber) for redetermination by a differently constituted tribunal in accordance with the directions set out in paragraph 33 of the Reasons.
REASONS FOR DECISION
1. Zoe (not her real name) was born in January 2001. She commenced Year 7 in September 2012 and attended a maintained mainstream school, pursuant to her statement of special educational needs (“statement”). Her mother, the appellant in these proceedings, wished her statement to be amended so as to name a maintained special school for pupils with moderate learning difficulties. Following an annual review held on 4 February 2013 the local authority refused to amend Zoe’s statement. That decision was communicated by letter dated 8 April 2013, which referred to the right to appeal against the decision and to the time limit of two months from the date of receipt of the letter. On 3 July 2013 (and thus between 3 and 4 weeks after the deadline) Zoe’s mother, at that time acting in person, sought to appeal against that decision and provided, with her application form, an explanation for the delay. An extension of time was refused on 5 July 2013 on the papers and the appeal was not admitted. It is that decision which Zoe’s mother seeks to challenge in the present proceedings. An application to the First-tier Tribunal for permission to appeal was refused on 12 August 2013. (The appellant had meanwhile provided further evidence about the family and organisational difficulties which had led to the delay but as the question was whether the decision of 5 July was arguably in error of law, that was not affected by the additional evidence.) I gave permission to appeal on 13 September 2013. The local authority remains neutral in the matter and is content to abide by the Upper Tribunal’s decision. The appellant’s case has been fully put with the assistance of solicitors. In those circumstances I consider that the appeal can properly be determined on the papers.
2. After setting out the chronology and referring to the relevant rule containing the time limit, the decision under appeal continued (emphasis in original):
“2. The Local Authority decision letter made this time limit clear.
3. On 3rd July 2013 an explanation for the delay was received with the parent’s case. That explanation was this:
“Whilst it is expected that my appeal should have been submitted within two months of the decision, the Educational Psychologist report, which should have been submitted to the authority prior to their decision being made was in fact prepared afterwards. As a result, it has been necessary to obtain as much historical information from archives, some of which dates back to 2010. It is documentation which supports this appeal by way of providing consistency in acknowledging my daughters educational need and as such it is pertinent to this appeal. It is for this reason that I would request that this appeal still be considered.”
4. The parent was fully aware of the time limits. I bear in mind also that the parent has a right after 9 months (i.e. in April 2014) to appeal a failure to amend a statement on review.
5. Although it is suggested that the parent was awaiting a further report that is not a good reason to delay an appeal, given that a parent has 2 months in which to act, the report from the Educational Psychologist was in any event in the parent's hands by early May, still well within the time to file an appeal, thereafter the parent chose to research more historical evidence and waited another 2 months to actually file the appeal.
6. There is power for the Tribunal to consider whether to extend the time for complying with such a time limit by virtue of rule 5(3) of the Rules. That power must be exercised in accordance with the overriding objective of dealing with cases fairly and justly.
7. It would not be fair or just to extend the time limit when the time limit is clearly stated, after such a period of time in the absence of good reasons. The application is refused, the appeal is rejected as being out of time.”
3. The reference to an educational psychologist’s report was to a report by the local authority’s educational psychologist, who had seen Zoe on 6 March 2013. The report was dated 20 April 2013 and sent to the appellant by letter postmarked 2 May 2013. The tenor of the report was to make recommendations to support Zoe where she was: it did not support a move to a special school. The case the appellant wanted to put was in essence that the authority’s concerns that Zoe might be academically too strong for a special school placement were based on an over-optimistic view of her performance when her difficulties, as evidenced in documentation over the previous three years or so, were considered. So far as I can see, there was no contemporaneous professional recommendation which in terms supported a move to the special school.
4. The standard application form used in special educational needs cases does not have any field directed to whether time should be extended so as to admit a late application (whether dealing with the reasons for delay, or otherwise.)
5. The guidance provided by the First-tier Tribunal to prospective appellants is in the form of a publication entitled “How to appeal against a SEN decision – a guide for parents” (September 2010). Although on the relevant website at http://www.justice.gov.uk/forms/hmcts/send (accessed on 3 January 2014) reference is made to a publication described as having a date of January 2011, if one follows the link, one is taken back to the September 2010 version, which I therefore assume has been (and is) the relevant one. As regards time limits it provides:
“You must appeal within two months of the date on the letter from the local authority giving you their decision.
If you miss this deadline, you can ask for an extension. You do this by:
● sending off your appeal as soon as you can; and
● explaining in your appeal why it is late.
We may allow an extension if there are special circumstances which meant that you were not able to send your appeal in time.”
6. The relevant law is contained in the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008/2699 (as amended) (“the HESC Rules”). References to rules are unless otherwise indicated to the relevant rule in the HESC Rules.
7. Rule 20(1)(c) contains the requirement for an application notice in a special educational needs case to be received within 2 months after written notice of the decision being challenged was being sent to the applicant.
8. Rule 5 provides:
“(1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure.
…
(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may—
(a) extend or shorten the time for complying with any rule, practice direction or direction, unless such extension or shortening would conflict with a provision of another enactment containing a time limit
…”
9. Rule 20(4) provides
“(4) If the applicant provides the application notice to the Tribunal later than the time required by paragraph (1) or by any extension of time under rule 5(3)(a) (power to extend time)—
(a) the application notice must include a request for an extension of time and the reason why the application notice was not provided in time; and
(b) unless the Tribunal extends time for the application notice under rule 5(3)(a) (power to extend time) the Tribunal must not admit the application notice.”
10. The tribunal’s overriding objective is set out in rule 2 in the following terms:
“(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.
(2) Dealing with a case fairly and justly includes—
(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;
(b) avoiding unnecessary formality and seeking flexibility in the proceedings;
(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;
(d) using any special expertise of the Tribunal effectively; and
(e) avoiding delay, so far as compatible with proper consideration of the issues.
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