Upper reaches

David Lawson examines the role of the Upper Tribunal in hearing education cases and highlights some of its most important recent decisions.

The Upper Tribunal has taken on the High Court’s role of hearing appeals from education decisions made by the First Tier Tribunal, FTT (formerly SENDIST). This note sets out some of the more important UT decisions that you may want to rely on in the FTT. The aim is to provide a simple summary and identify cases that you might want to consider further, rather than to give detailed analysis. First we look at the nature of the UT.

The nature of the UT

The new(ish) Tribunals system[1] hears many thousands of cases across a wide range of areas, channelled on appeal into a number of “chambers” of the Upper Tribunal. The UT and courts are still working out the nature and role of the UT, for example (1) what degree of restraint should the UT show to the fact finding tribunal when it hears appeals, and (2) is the UT subject to judicial review in the High Court and, if so, on what basis.

In AH (Sudan) Baroness Hale commented that “the ordinary courts should approach appeals from [tribunals] with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right”[2]. This of course is the current quotation of preference for every respondent in the Upper Tribunal, urging the UT to show restraint before allowing an appeal from the FTT. On its terms it seems to apply to the Courts and not to the UT. The UT is not an “ordinary court” and it might be argued that it should be no more cautious than any appellate court when hearing appeals from the FTT.

The next question is whether the UT is subject to judicial review. The inevitable attempted judicial review came in response to unappealable decisions from the UT. In particular there is little other than judicial review that a disappointed would-be appellant can do in the face of a refusal of permission to appeal[3]. On 22 June 2011 the Supreme Court decided the extent to which the Upper Tribunal is subject to judicial review (R (ota Cart) v. Upper Tribunal [2011] UKSC 28), concluding that judicial review of unappealable UT decisions should be available on the basis that a “second-tier appeal” is available to the Court of Appeal. This means that the claimant must show an important point of principle or some other compelling reason to hear the appeal[4]. Judicial review of the UT is therefore not narrowly restricted to pure errors of jurisdiction but nor is it as widely available as traditional judicial review.

Two particular differences between the UT and the High Court are that:

1. the UT takes some role in case management whereas the High Court did nothing except provide a hearing date. The Upper Tribunal will on occasion identify issues or authorities that need to be considered.
2. Access to the UT requires permission to appeal[5], whereas there was a right to appeal a SENDIST decision to the High Court.

There are still questions to be worked out, such as the extent of judicial review by the UT of unappealable First Tier Tribunal decisions[6].

Those interesting (to lawyers) questions remain largely in the background as the UT gets on with the day to day business of hearing education appeals. The UT is largely a costs free jurisdiction[7] and much more accessible than the High Court was[8]. This has not led to a significant increase in cases – there are 29 SEN cases on the UT website over the last two years – but it has perhaps led to a slight increase in parties representing themselves (schools, LAs and parents). The rest of this note highlights some of the more interesting decisions.

Residential education and high level needs

A few FTT cases involve children with very significant needs. In consequence provision is often expensive. There are two key UT cases. The UT has held that wider social and health benefits should be taken into account in deciding whether that expense amounts to “unreasonable public expenditure” for the purposes of s.9 Education Act 1996 (K v Hillingdon [2011] UKUT 71).

The UT has also continued the line of authority which is sceptical of the need for residential education on solely educational grounds. In Hampshire CC v. JP [2009] UKUT 239 the UT held that “waking day curriculum” is not a helpful term due to its possibly unwarranted educational overtones. It is inappropriate to reason that a “waking day curriculum” is required because what happens out of school will reinforce what happens in it.

Cost of provision

Costs are crucial because s. 9 Education Act 1996 provides that “pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with … the avoidance of unreasonable public expenditure”. For a long time it has been clear that the costs for maintained sector provision are calculated on a “marginal” cost basis, ie the extra cost of making provision for a particular pupil (Oxfordshire v. GB [2001] EWCA Civ 1358).

This was thrown into doubt by an obiter comment in Slough v. SENDIST [2010] ELR 687 that it was “not sustainable” that “admission to a maintained school with space for the child is cost-free apart from any special requirements that the child brings with her” (Slough paras 12 and 13).

The UT has since had to deal with costs questions repeatedly. It has held that questions about “unreasonable public expenditure” under s.9 are fact specific and local authority-specific (B v. Worcestershire [2010] UKUT 292). This is moderately helpful to appellants in the FTT, suggesting that LAs need to provide evidence of what costs are and of the appropriate method of calculation. However this is limited by the following: “Section 9 does not invite speculation about this nor does it invite a forensic examination of every detail... Nor does section 9 require an arithmetical calculation. Disproportionate precision is not necessary. Rather, it is a balancing exercise of which the probable comparable costs of the two placements are part”.

The UT confirmed this in EH v. Kent [2010] UKUT 276. The same case was recently decided by the Court of Appeal ([2011] EWCA Civ 709). The Court of Appeal held that, where the awpu[9] is the major part of the school’s income, the FTT can accept that the awpu was the cost of educating each pupil, together with any costs specifically for that pupil (such as therapy and teaching assistants). The Court called for decisions to be made in a “common sense manner” and then held that: “Fancy accountancy footwork which produces an unrealistic result – whether an excessive figure based on global costs including fixed costs, or a ‘cost free’ placement – is unlikely to be persuasive before the FtT”.

This is where the difficulties start and will essentially require another case to decide what the correct approach is to pre-funded special schools where the FTT often reaches the “unrealistic result” of a nil cost.

The nature of an FTT hearing

SENDIST was not a pure adversarial forum. Parties were more likely to be found to need to co-operate than in standard litigation and procedural strike outs were comparatively rare. How far does the duty go?

The UT has held that the FTT may have a duty to act inquisitorially (MW v. Halton BC [2010] UKUT 34). This may extend to a duty to adjourn even where no application is made (CP v M Technology School [2010] UKUT 314, a disability discrimination case).

The UT has also encouraged the FTT to take a more informal attitude to expert evidence than a Court would. It has found that experts can give evidence outside their area of expertise and that this should be considered, albeit that less weight might be attached to it and the Tribunal may need to explain why they rely on it (Hampshire CC v. JP [2009] UKUT 239 considering the evidence of an occupational therapist on placement).

MW v. Halton BC [2010] UKUT 34 also found that the educational advice of doctors was relevant and should be considered. The UT pointed out that local authorities had to take medical advice into account when making a statement[10].

The UT has also suggested that it may be more practical to admit evidence than spend time arguing about admissibility, HJ v. Brent [2010] UKUT 15.

Working documents

The heart of an FTT appeal over SEN is the working document. Some relief to those who miss a point in a working document is offered by West Sussex v ND and LD [2010] UKUT 349 which confirms the something not listed in Part 3 of a statement of SEN might have an impact on placement in Part 4. In that case the UT upheld an FTT decision which found a placement unsuitable because it did not provide vocational education even though Part 3 did not deal with vocational education in any detail.

Review and appeal

The FTT has to consider having a review before it gives permission to appeal (FTT rule 47(1)). When should the FTT review a decision and what is a review anyway? The power to review a decision should only be used where the original decision is clearly wrong in law (R (RB) v. First Tier Tribunal [2010] UKUT 160 para 24): “In a case where the appeal would be bound to succeed, a review will enable appropriate corrective action to be taken without delay ... If an error of law is clear it should be possible to give reasons in a couple of paragraphs” (paras 22 and 30).

Legal costs

Rule 10 of the FTT rules offers a limited basis for making costs orders. It is essentially limited to unreasonable behaviour, including wasted costs against the representatives. However it is always good to have something so important confirmed by the appellate tribunal, see HJ v. Brent [2010] UKUT 15.

Interim appeals

The UT does have jurisdiction to hear appeals over interim decisions of the FTT (LM v. London Borough of Lewisham [2009] UKUT 204). This is unlikely to be exercised over pure procedural decisions, where Tribunals have a wide discretion. The principle of significant restraint over the appeal of case management decisions was well expressed in Camden v FG [2010] UKUT 249: “It may not necessarily have been a decision that other judges would have made but it was neither an irrational nor a perverse decision ...”

Judicial review in the UT

There has been relatively little use of the UT’s jurisdiction in judicial review. This is despite the UT holding that it has power to order interim relief, in addition to its power to suspend the effect of the decision of another Tribunal (R (ota JW) v. Learning Trust [2009] UKUT 197 and rules 5(3)(m) and 20A of UT rules)[11].

The next episodes

What next? The following issues are either before the UT or the Court of Appeal or likely to be there soon:

• The duration of the SEN system. The Education Act 1996 appears to say that Statements of SEN end when the pupil turns 19 [12]. The UT has extended the duration of statements without any absolute limit (KC v. Newham [2010] UKUT 96 and AW v. Essex [2010] UKUT 74). The High Court disagreed and said that the statute means what it says (B v. Islington [2010] ELR 794). The question is before the Court of Appeal.
• Split placements. The UT suggested that it may be possible for most provision to be in a college if some is in a school (R (ota JW) v. Learning Trust [2009] UKUT 197). This leaves open the possibility of innovative split placements – particularly if the Court of Appeal allows statements to extend beyond 19.
• Costs. EH v. Kent leaves open the possibility of a further round in the question of determining the cost of maintained schools, in particular for pre-funded special schools.
• Suspending the effect of FTT decisions. The correct application of the UT’s power to suspend the effect of FTT decisions pending an appeal hearing.

David Lawson is a barrister at Hardwicke (www.hardwicke.co.uk).

[1] Created by the Tribunals, Courts and Enforcement Act 2007. See also Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008/2698.

[2] SoS Home Dept v. AH (Sudan) [2008] 1 AC 678

[3] The refusal of permission cannot be reviewed (s.13(1) and 10(1) TCEA) or appealed (s.13(1) and (8)(c) TCEA) – even if clearly wrong.

[4] See UT rules 13(6) and Access to Justice Act 1999, section 55(1).

[5] See MH v. Nottinghamshire [2009] UKUT 178 for an example of the permission decision largely determining the rest of the appeal and R (ota Vetterlein) v Hampshire CC [2001] WHC Admin 560.

[6] R (RB) v. FTT [2010] UKUT 160

[7] See rule 10 UT rules and note different position in judicial review. See HJ v Brent [2011] UKUT 191 below.

[8] Where education appeals were previously heard.

[9] Age weighted pupil unit, the per pupil funding which makes up the bulk of mainstream school funding.

[10] Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 SI 2001/3455, regulation 7.

[11] An exception is Camden v FG [2010] UKUT 249

[12] Education Act 1996, s.312(5)