Diane Dean and Roger Dean and East Sussex County LEAROSEMARY; LADY HUGHES (PRESIDENT of The SPECIAL EDUCATIONAL NEEDS and DISABILITY TRIBUNAL) party

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Hooper,Lord Justice Jacob,The President
Judgment Date22 March 2005
Neutral Citation[2005] EWCA Civ 323
Docket NumberCase No: C3/2004/1929

[2005] EWCA Civ 323

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT Mr Justice Jack

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

the President of the Family Divison, the Rt Hon Lady Justice Butler Sloss

the Rt Hon Lord Justice Jacob and

the Rt Hon Lord Justice Hooper

Case No: C3/2004/1929

CO/964/2004 1758/2004

Between
Diane Dean and Roger Dean
Appellant
and
East Sussex County Lea
Respondent
Rosemary, Lady Hughes (President of the Special Educational Needs and Disability Tribunal)
Interested Party

Mr John Friel (instructed by Messrs Ormerods) for the Appellants

Ms Lisa Busch (instructed by East Sussex County LEA) for the Respondent

Mr Jonathan Auburn (instructed by the Treasury Solicitor) for the Interested Party

Lord Justice Hooper

Lord Justice Hooper

1

The principal issue in this appeal concerns the jurisdiction of the Special Educational Needs and Disabilities Tribunal ("the Tribunal") to hear an appeal relating to a statement of special educational needs (a "SEN Statement") issued by the respondent Local Education Authority ("LEA") which reflected amendments which had been made pursuant to an order of the Tribunal. Jack J, sitting in the Administrative Court, held that it had no such jurisdiction. From that decision the appellant parents appeal.

2

On 28 November 2002 following an annual review of the educational needs of the appellant's disabled twin daughters, the respondent LEA issued amended statements which named a school which I shall call "A" school. The children were not currently at that school. The parents objected to the choice of the A school and preferred, what I shall call, "B" school. The appellants appealed and that appeal was heard by the Tribunal on 1 May 2003. At the hearing the parties were able to agree significant amendments to Parts 2 and 3 of the statements. The remaining issue to be decided by the Tribunal related solely to Part 4 of the statement in which A school had been named. The Tribunal concluded that B school could offer appropriate treatment but would involve unreasonable public expenditure given that, in the view of the Tribunal, appropriate provision could be made at A school. The appeal against Part 4 was dismissed.

3

On 19 June 2003, the statements amended in Parts 2 and 3 to reflect the decision of the Tribunal were sent to the appellant parents.

4

On 30 June the parents applied to the Tribunal for a review of the decision pursuant to Regulation 37 of the Special Educational Needs Tribunal Regulations, SI 2001 No. 600 ("the Tribunal Regulations). The power to review a decision comes from section 336 of the Education Act 1996 ("the Act") which provides that regulations may make provision for the proceedings of the Tribunal on an appeal, which regulations may include provisions: "enabling the Tribunal to review its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the regulations".

5

Regulation 37 provides, in part:

"(1) A party may apply to the Secretary of the Tribunal for the decision of the tribunal to be reviewed on the grounds that –

a) its decision was wrongly made as a result of an error on the part of the tribunal staff;

b) a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear;

c) there was an obvious error in the decision; or

d) the interests of justice require.

(2) An application that a decision of the tribunal be reviewed shall –

a) be made not later than 10 working days after the date on which the decision was sent to the parties;

b) be in writing stating the grounds in full.

(3) An application that a decision of the tribunal be reviewed may be refused by the President, or by the chairman of the tribunal which decided the case, if in his opinion it has no reasonable grounds of success.

(4) Unless an application that a decision of the tribunal be reviewed is refused in accordance with paragraph (3), it shall be determined, after the parties have had an opportunity to be heard, by the tribunal which made the decision or, where that is not practicable, by a tribunal appointed by the President.

(5) The tribunal may on its own initiative propose to review its decision on any of the grounds referred to in paragraph (1), in which case –

a) the Secretary of the Tribunal shall serve notice on the parents not later than 10 working day after the date on which the decision was sent to them; and

b) the parties shall have an opportunity to be heard.

(6) If, on the application of a party or on its own initiative, the tribunal is satisfied as to any of the grounds referred to in paragraph (1) –

a) it shall order that the whole or a specified part of the decision be reviewed; and

b) it may give directions to be complied with before or at the hearing of the review."

6

Given the tight time table of 10 days, it is fortunate that Regulation 52(1) gives the President power to extend. It provides:

"Where these Regulations or a direction made under them requires or authorises a person to do something within a period of time, the President may, on the application of that person or on his initiative, in exceptional circumstances extend that period of time."

7

The parents' application for a Review was about two weeks out of time and was refused. No application was made to extend the time limit and the power to extend was not, so it appears, considered.

8

Subsequently the children began attending A school and, in the view of the parents, their concerns about A school were realised.

9

On 26 September, the Respondent sent the parents copies of what were described in the accompanying letter as "final statements". They were, so Jack J understood, in the same form as the statements sent out in June. They were dated 6 September and stated that they were amended with effect from 26 September 2003 (something which Jack J did not understand and nor do I). Subsequently the appellants served notices of appeal to the Tribunal, which notices were received on 3 December. The notices referred to the 6 September statements and stated that the parents disagreed with Parts 2, 3 and 4 of the statements and wanted B school to be named in Part4. In the words of Jack J:

"The Grounds of Appeal were set out in separate documents. They made clear that the appeals were against the statements issued by the LEA as amended on 19 June 2003 pursuant to the Tribunal's order of 6 June 2003. The appeals proceeded on that basis in the Tribunal. The subsequent appeals before me have also been conducted on the same basis and I will deal with them on that basis."

10

On 5 January 2004, the LEA wrote to the parents stating that, despite their view that A school was unable to meet the needs of the children and despite their wish that they should not stay there, the LEA remained confident that the children's needs could be met at A school. It was agreed before Jack J that this gave the parents a right of appeal to the Tribunal pursuant to Section 326(1)(c) of the Act. In the words of Jack J:

"If that course had been followed the Tribunal would have had undoubted jurisdiction to deal with the issues in the light of the evidence which has become available since the hearing in May 2003. Instead the resolution of the issue as to schools has been prevented by a procedural dispute."

11

Returning to the appeals, on 15 January 2004 the Respondent LEA applied to strike out the parents' appeals on the ground that the parents were seeking to appeal against statements which had been amended in accordance with the Tribunal's order and that the Tribunal therefore had no jurisdiction. The Respondent relied on Regulation 44 of the Tribunal Regulations which provides for the striking out of an appeal where an appeal is not within the jurisdiction of the Tribunal or is scandalous, frivolous or vexatious.

12

On 9 February 2004 the Tribunal dismissed the LEA's application to strike out on the grounds of lack of jurisdiction. The LEA appealed that dismissal under section 11(1) of the Tribunals and Enquiries Act 1992 and Jack J, sitting in the Administrative Court, allowed the appeal. The effect of that section and Schedule 1 is to provide that if a party to proceedings before the Special Educational Needs and Disabilities Tribunal "is dissatisfied in point of law with a decision of the tribunal he may, according as rules of court may provide, … appeal from the tribunal to the High Court …."

13

On 10 March 2004 the Tribunal struck out the parents' appeals as being vexatious. In the words of Jack J:

"The grounds were first, that Parts 2 and 3 of the statements had been agreed by representatives of both parties and the Tribunal should not go behind what was agreed, and second, that there were no new expert's reports and assessments other than a school assessment for the B school which supported an argument of new circumstances to justify a new hearing: the appeals were an attempt to re-litigate matters indicated on the earlier hearing."

14

The parents appealed that decision to the Administrative Court under Section 11(1) and that appeal was also heard by Jack J at the same time as the LEA's appeal. Given his conclusion that the Tribunal had no jurisdiction to entertain their appeals against the amended statements, it was not necessary for him to decide their appeal. However, he said:

"37. In case it may be held that my conclusion on jurisdiction is wrong, I should consider the parents' appeal against the order of 10 March 2004 striking out their appeals on the ground that they were vexatious. I can deal with this...

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