London Borough of Bromley v The Special Educational Needs Tribunal and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OWEN |
| Judgment Date | 14 December 1998 |
| Judgment citation (vLex) | [1998] EWHC J1214-5 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 14 December 1998 |
| Docket Number | CO/3604/98 |
[1998] EWHC J1214-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Cardiff Crown Court
Cardiff
Mr Justice Owen
CO/3604/98
In the matter of an appeal against a decision of the Special Educational Needs Tribunal
MISS CHERIE BOOTH QC and MR DAVID WOLFE (instructed by the Legal Department of the London Borough of Bromley) appeared on behalf of the Appellant.
MR RICHARD GORDON QC and MISS KATE MARKUS (instructed by Messrs Leigh Day & Co) appeared on behalf of the Respondent.
FACTUAL BACKGROUND
The Appellant is the local education authority for its area. The Appellant appeals by an amended Notice of Motion dated the 27th October 1998 (p.30) against the decision and order of the Special Educational Needs Tribunal (pp.1�6) issued on the 24th August 1998. That decision and order upheld the Second and Third Respondents' Appeal under s.326 of Education Act 1996 against a statement of Special Educational Needs (pp.48�52) dated the 12th February 1998 in relation to the Second and Third Respondents' son Sam. Sam has profound special educational needs which will be particularised more fully later. He attends the Rectory Paddock School which is a local education authority maintained special school, pursuant to Part 4 of his Statement. He resides in a residential children's home, Pitt House. These are the arrangements which the Tribunal considered unsatisfactory.
Before the Tribunal, the Second and Third Respondents;
(1) sought a residential placement for 51 weeks a year and;
(2) asked that Sam's needs for speech and language therapy (SLT), occupational therapy (OT) and physiotherapy (PT);
(a) be classified as "educational" and;
(b) be identified as being 24 hours a day, 51 weeks per year.
The Appellant contends that although it is recognised that these two discreet arguments were in play the Tribunal did not expressly deal with the direct argument, [i.e. (1) above] about placement at all and claim that the Tribunal decision was so deeply flawed that the appeal should be allowed and the matter should be remitted back to the Tribunal to be lawfully reconsidered.
The Appellant points out that the Tribunal found that the current arrangements cost the local authority's direct budget �26,000 per year, whereas a placement at Coney Hill would cost in the region of �46,000 per year. If they are right this is an important consideration.
APPLICATION FOR LEAVE TO SERVE OUT OF TIME
Before considering the appeal it was necessary for me to consider whether to grant the Appellant leave to serve the Notice of Motion on the Respondents one day out of time. The Summons to achieve that effect was opposed. The Respondents drew my attention to O. 55 r.4(2) which provides that:
"The Notice must be served, and the appeal entered, within 28 days after the date of the judgment, Order, Determination or other decision against which the appeal is brought."
Having stressed that the provisions of s.4(2) are mandatory in form they drew my attention to various reported cases which establish various principles. Those principles are:
(1) The courts are and should be reluctant to extend time in public law cases, where the interests of good administration require challenges to Tribunal decisions to be brought within limited time scales.
(2) The court will only extend time where;
it is satisfied that there is an acceptable reason for the delay; and, if so the delay is not substantial and has not caused significant prejudice to the respondent. It is argued from this statement of principle that in the absence of an acceptable reason the question of prejudice does not arise.
The Respondents then point out that the Appellant has given no acceptable reason. They argue further that by way of affidavit no reason has been given. Miss Booth, on behalf of the Appellants, tells me, on express instructions, that the explanation for the failure to serve the Notice of Motion in time was the error through ignorance of Tracy Eldrige-Hinmers, Solicitor for the Appellant, which I understand to mean error induced by ignorance. The Appellant asks me to take into account the importance of the decision to it and accepts that it is also of great importance to the Respondents. The Appellant argues that O. 3.r.5 gives me a discretion which I should exercise in its favour.
The relevant dates are:
1. The decision was promulgated on the 24th August 1998.
2. On receipt of a letter from the Appellant dated the 8th September 1998 (p.26) the Respondents were aware that the Appellant was going to appeal.
3. The Notice of Motion was entered in the Crown Office on the 21st September 1998�the last permissible day; and
4. The Notice of Motion was served on the Respondents on the 22nd September 1998�one day late.
The Appellant argues that the Respondents have suffered no material prejudice. Although the Respondents do not concede this I must, as to this, agree with the Appellant. Whilst I accept that any delay is an important matter and, perhaps, a deprivation of a right, the delay between last thing on Monday 21st September 1998 and the morning of Tuesday 22nd September 1998 was not, in my judgment, such as to create prejudice to the Respondents.
The Respondents' argument is simple and clear. It is that the Appellant has given no acceptable reason for the delay and accordingly the question of prejudice does not arise. The strong point of the Respondents' argument is the decision of Sedley J. in Phillips v. Derbyshire County Council [1997] E.L.R. 461. There the extension of time sought was four days for the lodging of the appeal. Sedley J. found that there was nothing to explain, let alone excuse, the delay. Recognising that O. 3.r.5 gave the Court a discretionary power to extend time yet, he said, the Court had to approach any such issue on the basis of principle. The principle, he said, was to be found in two decisions. The first was Regalbourne v. East Lindsey District Council [1993] C.O.D. 297 and the second, Savill v. Southend Health Authority [1995] 1 W.L.R. 1254.
The principle upon which the Court in the first of these cases approached the issue was expressed by Kennedy L.J.;
"In the absence of agreement before the court will consider exercising its discretion to extend the time pursuant to O. 3.r.5., it will normally need to be satisfied that there is an acceptable explanation for the delay. The fact that the lawyers were unaware of the relevant time limit, or found it difficult to comply with the time limit because of other commitments such as a holiday or other work, is unlikely to amount to an acceptable explanation. If there is no acceptable explanation, the question of prejudice is unlikely to arise and, even if there is an acceptable explanation for the delay the court may refuse to exercise its discretion to extend time if the delay is substantial or if to do so would cause significant prejudice to the Respondent. In any event, as in the interests of good administration the law requires that public law challenges to decisions of tribunals should be made within a limited time scale, the courts will always be reluctant to extend time in such a situation �.."
Sedley J. also quoted from the Master of the Rolls;
"In this case the appellant company seeks to challenge the decision of a statutory Tribunal.
They did not comply with a clear and short time limit. In this context the reasonable requirements of public administration have a significance which is absent in ordinary inter-parties litigation. By contrast, prejudice may assume a rather smaller significance. But most importantly, there is in this context a different statutory framework and the court must do its best to give effect to the intention of Parliament in the particular context before it. I would be reluctant to lay down a rule that in this context an application to extend time may never be granted in the absence of a satisfactory explanation for delay. Had the learned judge here decided, in the exercise of his discretion, to grant an extension of time, I question whether his decision could have been successfully challenged as unlawful. But he took the view that, on the facts here and in particular in the absence of a satisfactory explanation for the delay, he should not exercise his discretion to grant an extension. In my opinion that decision cannot be impugned as contrary to law. The decision of the Tribunal was final unless subject to appeal. And unless an appeal was initiated within the time limit there was no right to appeal. The judge found no good reason to extend time."
In dealing with the second of the two cases Sedley J. said:
"That decision was before the two judge Court of Appeal which decided Savill v. Southend Health Authority [1995] 1 W.L.R.1254," where;
Balcombe LJ giving the leading judgment, said at p.1259:
"I have to say that the authorities are not all entirely easy to reconcile. I prefer to go back to first principles and to the statement made by Lord Guest in Ratman case [1965] 1 W.L.R. 8 at p.12 that in order to justify a court in extending the time during which some step in procedure required to be taken, there must be some material on which the court can exercise it discretion."
He went on to say, and it is worth repeating;
"If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation."
Sedley J. continued:
"It seems to...
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