First Tier Tribunal did not act fairly
What can I do if the Local Authority acts unfairly in an EHCP appeal?
Local Authority must provide all information whether it helps them or not.
How can sen solicitors help?
The principle of law that this decision clarifies is the duty of a local authority to provide all relevant information to the Tribunal and to assist the Tribunal by making all relevant information available, not just information that supports the Local Authority’s case, in an EHCP appeal.
In AA & BB v Bristol City Council  UKUT 52 (AAC), the Upper Tribunal ruled that the First-tier Tribunal (FtT) must ensure that proceedings are conducted fairly, and that unsupported factual assertions should not be accepted without scrutiny. The Upper Tribunal also found that the Local Authority’s failure to promptly inform the FtT and the Appellants that a school placement was no longer a placement option may have resulted in unfairness.
The Upper Tribunal also noted that parties cannot assume that unsupported factual assertions will be accepted by the Upper Tribunal without further scrutiny. The ruling emphasises the importance of ensuring that all parties have access to relevant information and that proceedings are conducted fairly.
This is not something that will be uncommon either to practitioners or parents. There will have been many a case where the Local Authority usually is aware of information or has material in its possession which does not help its case but it does not disclose that information or material.
It is not the first time that the Upper Tribunal has had to tell Local Authorities that this duty exists and it may not be the last time. In JF v Croydon  EWHC 2368 (Admin), Mr Justice Sullivan ruled: “I find the first defendant’s attitude to this case very troubling indeed. It betrays a complete failure to understand the role of a Local Education Authority in hearings before the Tribunal. Although the proceedings are in part adversarial because the Authority will be responding to the parents’ appeal, the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available.
Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents’ case. It is not an adequate answer to a failure to disclose information to the Tribunal for a Local Education Authority to say that the parents could have unearthed the information for themselves if they had dug deep enough.”
There is also case law to say that a Local Authority should play it safe and disclose material which it does not rely on but which it thinks is likely to assist the First Tier Tribunal in reaching a just decision. In appropriate cases, the Local Authority’s duty also extends to obtaining further evidence.
In AA & BB, the Upper Tribunal also stated that ‘EOTAS’ was not a concept with “legal status” under the 2014 Act and that the issue of law was instead the application of section 61 of that Act (paragraph 97). Section 61 is headed “Special educational provision otherwise than in schools, post-16 institutions etc.”
Section 61 states:
“(1) A local authority in England may arrange for any special educational provision that it has decided is necessary for a child…for whom it is responsible to be made otherwise than in a school…
(2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school…”
On behalf of the parents, it was argued before the Tribunal that the child should receive EOTAS or education otherwise than at school. The reasons put forward were that the child would have to manage two transitions: primary school, year 6, and then secondary school and that this was inappropriate. Furthermore, due to the child’s anxiety it was argued that the child should not be put through two transitions. The Tribunal did not accept that the child’s anxiety made it inappropriate to “put [the child] through two transitions within a year”.
A child who had been absent from school-based education for a time, would be more likely to make a successful transition back to such education in a primary school setting. From such a setting, he would be better placed subsequently to manage transition to secondary school. The necessary integration into school-based learning would be absent under the model being proposed by parents of school-based learning for another year.
The Local Authority proposed a specific school placement, was aware that the placement had been withdrawn, but all parties (because the Local Authority did not inform anyone) and the Tribunal proceeded on the basis that the placement was available. The placement’s head teacher gave evidence that the placement had been withdrawn. The parents were proposing an alternative school. They opposed the naming of the school the Local Authority was proposing which was an independent special school.
“The absence of a specific placement “despite the efforts of the parents and the LA” was not “sufficient to engage section 61”, although the Tribunal observed that the authority was required under general education legislation to secure alternative arrangements for R’s education until “a school placement can be found” (paragraph 167).
That might involve education otherwise than at school but that was because “there was no school place for him at all” not because it was inappropriate for the required provision to be delivered in a school. The Tribunal did not name a specific school in section I. Instead, it specified a type of school namely a mainstream school.”
In granting permission to appeal to the Upper Tribunal, the judge stated “… arguably the proceedings were conducted unfairly (albeit the unfairness was arguably not generated by the FtT itself) by the local authority’s apparent failure promptly to inform the FtT and the Appellants that Belgrave School was no longer a placement option.
The Appellants have a realistic prospect of establishing that the proceedings were unfair because they were left with almost no time to respond to the fact that, by the date of the final hearing, there was no longer any specific placement option for R put before the FtT. Alternatively, the FtT arguably erred in law by failing to consider whether fairness required an adjournment in order for steps to be taken by at least the local authority to try to identify an alternative suitable placement…”
The Upper Tribunal concluded:
“The local authority’s written response to this appeal is deficient. It is an amalgam of legal submissions and (largely new) written evidence. The evidence, if that is the correct term, largely takes the form of mere factual assertions. Many of these assertions appear to be second or even third hand hearsay. The response is also presented without any obvious consideration having been given to the fact that the Upper Tribunal’s function is to determine whether a Tribunal’s decision involved an error on a point of law”
“The authority’s response deals with the conduct of proceedings before the Tribunal. That is not surprising since this appeal is about the fairness of proceedings. I did not, however, expect the response to include a number of factual assertions all of which were new to me…”
“. No attempt was made in the authority’s response to support these assertions by reference to documentary evidence in the Tribunal’s bundle or any part of its statement of reasons. There was nothing approaching a formal written witness statement accompanied by a statement of truth. It is not clear whether the maker of the statement (the drafter of the response) sought to convey first, second or thirdhand information…”
“It is as if the authority think that any assertion will be accepted as fact by the Upper Tribunal simply because it is made by a local authority. By contrast, the unrepresented Appellants provided documentary evidence to support the factual assertions made in their reply to the authority’s response.”
“… parties cannot assume that unsupported factual assertions / evidence, which fall outside the Ladd v Marshall conditions, will nevertheless be accepted by the Upper Tribunal without further ado.”
The Upper Tribunal judge went on to rule that “If the Upper Tribunal were uncritically to accept unsupported factual assertions, such as those relied on by the authority, there would be a real risk of unfairness.”
A further important point that was made by the Appeals Judge was that “Upper Tribunal proceedings do not provide represented parties with an opportunity to re-visit the litigation strategy adopted in the tribunal below.” In addition, the Appeals Judge went on to hold that “… the Upper Tribunal’s role in an education case is circumscribed by the law under which it operates as well as the particular grounds of appeal. I cannot ignore those limitations and carry out a roving examination of one party’s conduct during Tribunal proceedings.”
In the event, the parents’ appeal, to the Upper Tribunal, was dismissed. The Judge went on to state that “had I allowed this appeal, I would not have set aside the Tribunal’s decision. If the Upper Tribunal sets aside a decision of the First-tier Tribunal, it must either remit the case to that Tribunal for reconsideration or re-make the decision itself (section 12(2), Tribunals, Courts and Enforcement Act 2007).
Neither option would be appropriate (serve any practical purpose) in this case because R’s current EHC Plan, which is not at issue in these proceedings, has materially changed not least because it now includes a specific placement in section I. If the contents of the current Plan are to be challenged, a fresh appeal to the Firsttier Tribunal would be required.”
We are sen solicitors who represent parents dealing with EHCP appeals before the First Tier Tribunal. We recommend early involvment of sen solicitors to advise on strategy and tactics to maximise the chances of a successful outcome in an EHCP appeal. We can tackle head on issues surrounding disclosure and evidence.
Notwithstanding the disclosure duties the Tribunal says exists, parents should consider obtaining all evidence that may be important to the decisions the First Tier Tribunal has to make, whether that is a Refusal to Assess Appeal, a Refusal to Issue Appeal, an EHCP Content Appeal, an EHCP School Placement Appeal, or even a Disability Discrimination Appeal. Sen solicitors can also advise on the evidence needed to make a strong case for EOTAS. Please contact us if you require sen solicitors advice or assistance with securing the provision in section F of your child or young person’s EHCP.