Essex County Council HS 3460 2015
| Jurisdiction | UK Non-devolved |
| Judge | Judge S. Wright |
| Judgment Date | 17 October 2016 |
| Neutral Citation | 2016 UKUT 463 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | DH (SEN) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 3460 2015 |
| Appellant | Essex County Council |
IN THE UPPER TRIBUNAL Appeal No: HS/3460/2015
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
DECISION
The Upper Tribunal allows the appeal of the appellant to the extent of holding that the decision of the First-tier Tribunal of 9 September 2015 under reference SE881/15/00021 involved an error on a point of law. However, as a matter of its discretion the Upper Tribunal decides not to set aside the First-tier Tribunal’s decision.
This decision is made under section 12(1) and 12 (2)(a) of the Tribunals, Courts and Enforcement Act 2007.
Appearances: Ms Rachel Kamm of counsel for the appellant
Mr Russell Holland of counsel for the respondent
REASONS FOR DECISION
- After the first oral before the Upper Tribunal in this case I gave Essex County Council permission to appeal against the decision made by the First-tier Tribunal (“the tribunal”) dated 21 September 2015. By that decision the tribunal allowed the appeal of [the father] in respect of his daughter, Jessica, and decided, most relevantly, that [D] special school was to be named in Part 4 of Jessica’s statement on the basis of a 38 week residential placement. I gave permission to appeal on the following grounds:
“Permission to appeal is given because I consider that it is arguable with a realistic prospect of success that the tribunal erred materially in law in failing to make sufficient findings of fact and in failing to give adequate reasons for its decision so as to explain why as a matter of Jessica’s educational needs a 38 week residential placement was required.
Extensive grounds (numbering 10) seeking permission to appeal had been prepared in writing on behalf of Essex County Council. Ms Kamm, in my view quite sensibly, sought to focus all of those grounds on one key issue, namely the adequacy of the First-tier Tribunal’s reasoning and findings of fact showing to the reader of its decision why it had concluded that Jessica had an educational need (as opposed to a social care need or respite need) for 38 weeks per year ‘waking day’ curriculum/residential schooling. It is on that more broadly put ground that I give permission to appeal.
On the face of paragraphs 12 and 13 of its decision the tribunal directed itself properly as to the law and the legal test(s) it had to apply to the evidence before it and the facts it found. However it is in the reasoned out application of that law and test(s) that the tribunal’s decision may arguably be lacking and thus, arguably, be in error of law.
Even if the local authority had not challenged the educational purpose of the residential placement sought (see paragraph 20 of the tribunal’s decision), arguably it was still for the tribunal to satisfy itself that there was such a purpose and explain what that purpose was. Given the tribunal’s acceptance that Jessica was making “pleasing progress” in her ordinary day attendance at [D school], and given the arguable lack of any ‘waking day’ needs identified in Part II of the statement, it arguably was incumbent on the tribunal to set out findings and reasons to show why in the tribunal’s view Jessica needed further educational provision (i.e. for the rest of the day), and those findings and reasoning are arguably lacking.
As part of this, it is arguable that the tribunal did not make clear in paragraph 31 of its decision what the differences were between social care/respite needs and educational needs, and why if the provision to be made available at [D school] was the same as for respite care it here amounted to educational provision. Further, the educational need identified by [the father] in paragraph 33 of the tribunal’s decision, and seemingly adopted by the tribunal, without at least more by way of reasoning is arguably in conflict with paragraph 27 of Hampshire CC –v- JP [2009] UKUT 239 (AAC); [2010] AACR 15; [2010] ELR 413.
It is also arguable, as part of the above, that the tribunal failed adequately to identify - per paragraph 31 of its decision – the parts of [D] school’s evidence which set out the case for residential accommodation needed to meet Jessica’s educational needs.”
- The appeal then came back before me for a further hearing, when the representation was as set out above
- It was at that hearing that important information was disclosed which fundamentally affects both the importance of this appeal and how it should be disposed of. That information was that an annual review of Jessica’s statement of special educational needs had been conducted since the tribunal’s decision, pursuant to section 328(5)(b) and sections 323-324 of the Education Act 1996, and the statement amended. Just as importantly for the purposes of this appeal to the Upper Tribunal, however, I was told (the new statement was not put before me) that the new, post-annual review statement was the same, in terms of providing for a 38 week residential placement at D school, as the statement the tribunal had ordered the local authority to put in place, though it was altered in other, non-controversial respects. I will refer to the statement put in place after the annual review as the “new statement. I was further told that the new statement was not subject to any condition (even assuming such could lawfully be imposed) that it was subject to the decision of the Upper Tribunal on this appeal
- In short, in its relevant particulars the new statement provides exactly what Jessica and her parents wished for and which the council in pursuing this appeal was otherwise seeking to argue against. Moreover, it is that new statement which now governs the relationship between the parties, and it is not one, as I understand it, about which Jessica or her parents have any complaints or which they would wish to challenge on appeal
- Given the new statement had on its face replaced the statement of special educational needs the tribunal had ordered to be put in place, I asked the parties representatives to provide me with written argument after the hearing on the legal effect of that new statement on this appeal continuing. I had in mind, in particular, what the point would be in my allowing the appeal and either remitting it to be re-decided or re-making it myself if the statement giving rise to the parent’s appeal had been superseded by the new statement. The parents positively would not wish to appeal the new statement and the statement they had appealed no longer existed, and no right of appeal vests in the local authority. What therefore would either I or any new First-tier Tribunal be deciding?
- Both parties have provided such argument. They are at one in agreeing that the Upper Tribunal retains its jurisdiction to decide this appeal notwithstanding the new statement that has since been put in place in respect of Jessica on the annual review. I am persuaded that I retain jurisdiction. Even assuming that the statement as ordered forms part of the tribunal’s decision, it is the decision against which permission to appeal was given[1]. That follows from the words “a right of appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal…” (my underlining added for emphasis), in section 11(1) of the Tribunals, Courts and Enforcement Act 2007. The decision of the tribunal remains in place even if it is no longer of any continuing effect as it has been overset by the new statement.
- The Upper Tribunal therefore being seised of the appeal, a decision is required on this appeal. My first task, per section 12(1) of the Tribunals, Courts and Enforcement Act 2007, is to decide whether “the making of the decision concerned involved the making of an error on a point of law”. I do not consider that the later annual review should be taken into account by me at this stage in determining whether any error law the tribunal made was material to its decision because that would allow the decision’s materiality to be judged by events of which the tribunal could have had no knowledge and which could not have affected its decision at the time it was made. It seems to me that ‘materiality’ here must mean something which could have affected the decision at the time it was made, with subsequent changes falling to be taken into account in the exercise of the discretion found in section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 as to whether to set the tribunal’s decision aside.
- Looking then at the tribunal’s decision and its reasoning, despite the arguments of Mr Holland to the contrary I am persuaded, but not without some hesitation, that it did err materially in law in failing to adequately explain through its reasoning and fact finding why Jessica had an educational need for residential schooling 38 weeks of the year. This is perhaps particularly so in the context of what is said in paragraph 27 of Hampshire County Council –v- JP (SEN) [2009] UKUT...
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