NS & RS v Kent County Council

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge West
Neutral Citation[2021] UKUT 311 (AAC)
Published date07 January 2022
NS & RS v Kent County Council [2021] UKUT 311 (AAC)
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NS & RS v Kent CC HS/1520/2020
IN THE UPPER TRIBUNAL Appeal No. HS/1520/2020
(ADMINISTRATIVE APPEALS CHAMBER)
ON APPEAL FROM THE FIRST TIER TRIBUNAL (HESC)
(SPECIAL EDUCATIONAL NEEDS & DISABILITY)
Tribunal Ref EH886/19/00384
Between
(1) NS
(2) RS
Appellants
and
KENT COUNTY COUNCIL
Respondent
BEFORE UPPER TRIBUNAL JUDGE WEST
Hearing date: 26 August 2021
Decision Date: 10 December 2021
Representation: Mr John Friel, counsel (for the Appellants)
(instructed by SEN Legal)
Mr David Lawson, counsel (for the Respondent)
(instructed by the Council)
NS & RS v Kent County Council [2021] UKUT 311 (AAC)
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NS & RS v Kent CC HS/1520/2020
DETERMINATION
The appeal against the decision of the First-tier Tribunal (HESC) (Special Educational
Needs & Disability) dated 15 July 2020 under file reference EH886/19/00384 is
dismissed. The decision of the First-tier Tribunal does not contain an error of law.
This determination is made under section 11 of the Tribunals, Courts and Enforcement
Act 2007.
ORDER
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is
prohibited for any person to disclose or publish any matter likely to lead
members of the public to identify the young person in these proceedings. This
order does not apply to (a) the young person’s parents (b) any person to whom
the young person’s parents, in due exercise of their parental responsibility,
disclose such a matter or who learns of it through publication by either parent,
where such publication is a due exercise of parental responsibility (c) any person
exercising statutory (including judicial) functions in relation to the young person
where knowledge of the matter is reasonably necessary for the proper exercise
of the functions.
REASONS
Introduction
1. This case concerns the question whether the First-tier Tribunal was wrong in law to
have held that the Appellants had failed to show that the Respondent had behaved
unreasonably at any juncture and that therefore there was no basis on which an order
in respect of costs could be made.
2. In order to preserve his anonymity, and meaning no disrespect to him, I shall refer
to the Appellants’ son only as “G”. G is now 21, but has complex learning and
NS & RS v Kent County Council [2021] UKUT 311 (AAC)
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NS & RS v Kent CC HS/1520/2020
behavioural disorders. The Appellants appeal to the Upper Tribunal from a decision of
the First-tier Tribunal which it made after receiving written submissions on 15 July
2020. The Appellants sought an order in respect of costs in the sum of £32,136.80,
primarily on the basis that the Council failed to defend the substantive appeal which
was heard on 8 April 2020. In its decision on the substantive appeal, on 28 April 2020
the Tribunal ordered that the Council amend G’s EHCP by
(1) in Section E, replacing the existing wording with the amendments set out in the final
working document
(2) in Section F, replacing the existing wording with the amendments set out in the final
working document
(3) in Section I, naming St John’s College (Brighton) as the college on a residential
basis for 52 weeks a year.
3. Tribunal Judge McCarthy refused the costs application and held that the Appellants
had failed to show that the Council had behaved unreasonably at any juncture and that
therefore there was no basis on which an order for costs could be made. Permission to
appeal was initially refused by Deputy Chamber President Judge Meleri Tudur on 22
September 2020.
Permission To Appeal
4. The Appellants applied to the Upper Tribunal for permission to appeal on 21
October 2020. On 29 October 2020 I ordered an oral hearing of the application for
permission to appeal. The application was heard by me on the afternoon of 25 March
2021. The Appellants (who were both present in court) were represented by Mr John
Friel of counsel, who appeared before me in person. The Council did not appear and
was not represented. The grounds of appeal to the Upper Tribunal were contained in
an attachment to the completed form UT4.
5. It seemed to me that there was an arguable case that (a) the Council acted
unreasonably in relation to the naming of the placement in Section I of the EHCP for

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