Westminster City Council v (1) FTT (HESC): (2) A (SEND): [2023] UKUT 177 (AAC)
| Jurisdiction | UK Non-devolved |
| Judge | Judge West |
| Subject Matter | Special educational needs - special educational provision - other,Tribunal procedure,practice - tribunal jurisdiction,West,M |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 08 August 2023 |
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Westminster CC v (1) FTT (HESC) (2) A (SEND)
[2023] UKUT 177 (AAC)
IN THE UPPER TRIBUNAL Appeal No. UA-2022-001731-JR
(ADMINISTRATIVE APPEALS CHAMBER)
ON APPEAL FROM THE FIRST TIER TRIBUNAL (HESC)
(SPECIAL EDUCATIONAL NEEDS & DISABILITY)
Tribunal Ref EH213/21/00020
Between
WESTMINSTER CITY COUNCIL
Applicant
and
FIRST TIER TRIBUNAL (HESC)
Respondent
and
A
Interested Party
BEFORE UPPER TRIBUNAL JUDGE WEST
Hearing date: 19 June 2023
Decision Date: 12 July 2023
Representation: Mr Alexander Line, counsel (for the Applicant)
(instructed by Westminster City Council)
Mr David Wolfe KC, counsel (for the Interested Party)
(instructed by Simpson Milar)
Westminster CC v (1) FTT (HESC) (2) A (SEND) [2023] UKUT 177 (AAC)
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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.
DETERMINATION
The decision of the First-tier Tribunal (HESC) (Special Educational Needs &
Disability) (which sat on 2 May 2022 and 20 September 2022) dated 23
February 2023 and 20 September 2023 under file reference EH213/21/00020
does not involve an error on a point of law. Permission to appeal against that
decision on Ground 1 is refused. Although permission to appeal is granted on
Ground 2, the appeal against that decision is dismissed.
This determination is made under section 11 of the Tribunals, Courts and
Enforcement Act 2007.
REASONS
Introduction
1. In this decision I draw attention to the decision of the Court of Appeal in
Point West GR Ltd v Bassi & Ors [2020] EWCA Civ 795 concerning the
power to review a decision (or part of a decision), the scope of such review
and the importance of the principle of finality in the context of a review. I
Westminster CC v (1) FTT (HESC) (2) A (SEND) [2023] UKUT 177 (AAC)
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refused permission to appeal in respect of Ground 1 of the grounds of appeal.
Although I granted permission to appeal is granted on Ground 2, the appeal
against that decision is dismissed.
Parties
2. The parties to the application for judicial review are Westminster City
Council (“the Council”), which is the Applicant, the First-tier Tribunal (HESC),
which is the Respondent and A, the Interested Party. In order to preserve her
anonymity, and meaning no disrespect to her, I shall refer to the Interested
Party only as “A”. A is now 22. There is no suggestion that A lacks capacity to
represent herself and make her own decisions, but her parents have
supported her in this litigation and act in her best interests. They were present
at the hearing of the original appeal and at the hearing before me on A’s
behalf. A herself did not appear and had not appeared below. The
Respondent First-tier Tribunal was a necessary party to the application for
judicial review, but took no part in the proceedings and the contest was
essentially between the Council and A.
Test for Permission
3. Under the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”),
there is no right of appeal from the decision of the First-tier Tribunal which is
an excluded decision. A challenge to a decision of a First-tier Tribunal in such
a case can only be pursued by way of judicial review proceedings to the
Upper Tribunal. On an application for permission to bring judicial review
proceedings, the test to be applied is whether “there is an arguable ground for
judicial review having a realistic prospect of success” (Sharma v. Brown-
Antoine [2007] 1 WLR 780 at [14(4)] and Wasif v. Secretary of State for the
Home Department [2016] EWCA Civ 82 at [13]).
Background
4. A’s original appeal under s.51 of the Children and Families Act 2014 was
against the contents of her Education, Health and Care Plan (“EHCP”). The
appeal was against the terms of Sections B (special educational needs), F
(special educational provision) and I (placement). On two separate occasions,
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