Upper Tribunal judge allows appeal by mother in EHCP case over pagination issues, criticises First Tier Tribunal for “putting off” issues for later

The Upper Tribunal has allowed a mother’s appeal concerning the Education Health and Care (EHC) Plans of her two children, after finding a “procedural irregularity” in respect of pagination issues in the court bundle.

Allowing the mother’s appeal in RP v Barnsley Metropolitan District Council [2025] UKUT 46 (AAC) (07 February 2025), Upper Tribunal Judge Edward Jacobs concluded: “A mistake of law has to be material, but in the case of a procedural irregularity the test is whether it was 'capable of making a material difference to the outcome or the fairness of the proceedings'.

“[…] I have had the benefit of seeing [the mother] at the hearing before me. She was articulate, and she was knowledgeable about safeguarding […] but she was not used to legal proceedings and there were, as I now know, three versions of the bundle. I have no reason to doubt her description of the effect that that had on her presentation of her case. I consider that what she has described was an unfairness in the proceedings and that was an error of law.”

The cases concerned the EHC Plans for two boys. The First-tier Tribunal gave permission to appeal to the Upper Tribunal in both cases.

The appellant, RP, is the boys' mother. In her grounds of appeal, RP wrote:

“My bundles had different pagination to the LA and the Tribunal panel. […] It became apparent in the final hearing that my bundle was paginated differently to the bundles the panel members and the LA were working from. This made it extremely difficult for me to navigate and at numerous points throughout the hearing put me under pressure not only to ask questions, but to answer them as well. I feel this put me at a significant disadvantage at the final hearing.”

Considering the case, the Upper Tribunal judge said: “As I said to RP, differences like this are an 'occupational hazard' in tribunal and court proceedings. I would expect tribunals to check when they first refer to a bundle whether there are differences in the page numbering. It is usually identified early on and, once identified, becomes little more than an irritation. As Judge McCarthy said in his grant of permission:

“Differences in pagination would not usually undermine fairness; the Tribunal is well aware that printed copies of a bundle often are paginated after the index while electronic versions are paginated from the start of the index. Accommodation for such discrepancies is usually made by giving both page numbers. Usually I would expect the panel to have proceeded in this way, but the allegation of unfair conduct means this may have to be investigated further.”

He continued: “I would normally have agreed with what the judge expected to happen; that was my provisional view before the hearing of these appeals. It was only then that I realised this was not just a difference between the paper copy and the electronic version. [Counsel for the Local Authority] told me that she was working from an electronic version, but her pagination also differed from the panel's electronic version.

“I do not have to decide whether or not this issue and the confusion it caused affected the outcome of the appeal. A mistake of law has to be material, but in the case of a procedural irregularity the test is whether it was 'capable of making a material difference to the outcome or the fairness of the proceedings'. […] I consider that what [RP] has described was an unfairness in the proceedings and that was an error of law.”

Finally, dealing briefly with a second issue raised by the appellant, Judge Jacobs noted that the tribunal dismissed the appeals in respect of both boys - meaning that it did not order any changes in the Plans.

He said: “Despite this, the tribunal said for both boys that matters should be made clear in their revised Plans. That was not sufficient. If something was not clear in the current Plans, the tribunal should have ordered that the necessary changes be made. It may be that revised Plans were expected in the near future, but the boys were entitled to a Plan that reflected their needs from the start of their placement. Putting it off until later was not an option. That was also an error of law.”

The decisions of the First-tier Tribunal were set aside, and the cases were remitted to the tribunal for rehearing by a differently constituted panel.