R (LR by ER) JR 3126 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 21 June 2012 |
| Neutral Citation | 2012 UKUT 213 AAC |
| Subject Matter | Tribunal procedure and practice (including UT) |
| Respondent | FtT (HESC) & Hertfordshire CC |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | JR 3126 2011 |
| Appellant | R (LR by ER) |
[2013] AACR 26
(R (LR) v First-tier Tribunal (HESC) and Hertfordshire County Council (SEN)
[2012] UKUT 213 (AAC))
Judge Ward JR/3126/2011
21 June 2012
Practice and procedure – consent order – whether a “decision” which can be re-opened
Special educational provision – naming of school – “type” of school not restricted to statutory categories
Following an appeal to the First-tier Tribunal (F-tT) by the parents against the local authority’s final statement of special educational needs for their son, an agreement was reached between the parties that an independent mainstream school with specialist classes was appropriate and that E should be the named school in Part 4 of the statement. The F-tT made a consent order on 22 March 2011 to confirm the agreement under rule 29 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules). Shortly thereafter the local authority applied for the consent order to be set aside on the basis that there had been an error insofar as E was an independent school (not an “independent mainstream school”). Its application was not served or sent to the parents or its solicitor. On 28 April a different F-tT judge decided to set aside that part of the F-tT’s decision relating to Part 4 of the statement. Upon receiving the decision the parents’ solicitors objected. On 18 May the same F-tT judge set aside her decision of 28 April and purported to review the F-tT’s original decision of 22 March. The judge concluded that the F-tT’s decision to approve the consent order was a procedural irregularity vitiating the approval under rule 29(1) and, under rule 45(1), set aside the decision to approve Part 4 of the consent order, thereby suspending the effect of the decision in relation to Part 4 of the statement. The issues before the UT included whether the judge was legally entitled to re-open the consent order and whether the procedure adopted was fair.
Held, granting the application for judicial review and quashing the decision of 18 May 2011, that:
- the approval of a consent order under rule 29 is a “decision”: LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27 followed. Therefore there was jurisdiction to re-open the consent order by set-aside, or, indeed, to review in appropriate cases (paragraphs 20 to 30)
- the decision of the tribunal was not vitiated by having made an erroneous ruling as to the impact of section 316 of the Education Act 1996 (the duty to educate children with SEN in mainstream schools), as no such ruling was made (paragraphs 31 to 41)
- the wording adopted to describe the “type” of school for the purposes of section 324 of the 1996 Act perhaps left scope for confusion (the parties had adopted it advisedly). But section 324 did not, as a matter of law, restrict the “type” of school to types which were concepts of statute. It could not be said that the tribunal had acted perversely in approving an order containing the description and there was no other way of challenging it on that ground (paragraphs 42 to 43)
- the power to set aside under Rule 45 was restricted to procedural error and was not available where the ground of challenge, if established, was to the substantive decision. A point of substance could potentially have been dealt with by way of review under rule 49 (paragraphs 45 to 46).
The Upper Tribunal judge declared that the consent order, as approved by the First-tier Tribunal on 22 March 2011, stood.
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Decision:
I give permission to apply for judicial review. The application for judicial review is granted. The decision of 18 May 2011 is quashed insofar as it purports to set aside the decision of 22 March 2011. It is declared that the consent order, as approved by the First-tier Tribunal on 22 March 2011, stands.
REASONS FOR DECISION
1. This case concerns a challenge to the last in a series of post-hearing decisions made by Judge Tudur of the First-tier Tribunal. The decision challenged was taken on set-aside and so constituted an “excluded decision” for the purposes of section 11(5) of the Tribunals, Courts and Enforcement Act 2007 (TCEA). As such, the appropriate route of challenge to it was by way of an application for judicial review. It fell within the Lord Chief Justice’s “Direction on classes of cases specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007” and so fell to be considered by the Upper Tribunal. Despite this, the application had initially been made to the High Court and so reached the Upper Tribunal by way of a transfer ordered by consent, in which a rolled-up hearing had been directed.
2. Put simply, the case examines whether, when the First-tier Tribunal has approved a consent order agreed between the parties, jurisdiction then exists to re-open the matter by one or more of the routes specified in Part 5 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) (the Rules). If such power exists, the case then concerns whether it was appropriate to exercise it at all, or following the procedure which was adopted, in the circumstances of this case.
Background
3. The boy who is the subject of this case, L, was born on 25 April 1996. He has a formal diagnosis of autism with Asperger characteristics, semantic pragmatic disorder, dyslexia, general co-ordination difficulties and severe generalised anxiety disorder with psychomatisation (sic – “psychosomatisation” was probably intended). When a primary school pupil, L had attended two mainstream schools for periods of time, encountering a variety of difficulties. Following the second such episode, in March 2005 L became home educated until September 2006, when he started to attend school E. School E is an independent school. It has approximately 12 children in each class, catering for pupils who find learning within a busy mainstream environment to be particularly difficult. It also has a specialist base, which caters for children, dividing them into three class groups. L attended one such class, of six children. At the time of the tribunal decisions this was a year 9 class: L has been attending a class one year below his chronological age.
4. In this case, there has been a significant degree of confusion caused by use of terminology. School E has been described as a “mainstream” school and as having a “mainstream” ethos. What this means may be a matter of debate. It is however clear that, despite the school’s focus on children with special educational needs (SEN) and the specialist provision which it apparently offers, it is not a “special school”, an expression which through the combined effect of sections 6 and 337 of the Education Act 1996 (the 1996 Act) would require it to have been approved as such by the Secretary of State, which it has not been.
5. A review of L’s statement led to a final statement of SEN dated 17 August 2010 being issued. As to Part 4 (placement) the statement indicated:
“School type: local authority maintained mainstream school. However parents have placed [L] at [school E] at their own expense.”
The statement recorded that L had been attending school E, which it had referred to as “an independent school”.
6. In October 2010 L’s parents appealed against Parts 2, 3 and 4 of the final amended statement. As to Part 4, the parents made clear their opposition to the local authority’s proposals, saying (inter alia):
“The local authority has stated that L should attend a local authority maintained mainstream school. We take the view that a local authority maintained mainstream school would in no way be able to meet L’s needs.” …
“There is a significant amount of evidence that L could not (nor has been able to historically) cope in a local authority maintained mainstream school” …
“[After his second period attending a local authority mainstream school] we decide[d] to home educate as it seemed to be the only alternative. L has never coped in mainstream.” …
“L simply cannot go to a local authority maintained mainstream school.”
7. At this stage therefore the contest was between the local authority’s view that a maintained mainstream school was appropriate and the parents’ view that school E was appropriate. Then, in January 2011, the local authority successfully applied to change the school...
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