IN THE UPPER TRIBUNAL	Case No.  JR/3126/2011
ADMINISTRATIVE APPEALS CHAMBER

BEFORE UPPER TRIBUNAL JUDGE WARD 

Attendances:

For the Claimant:		Mr Clive Newton QC (instructed by Sinclairs Law)

For the Defendant :		No attendance or representation

For the Interested Party:	Ms Sarah Hannett (instructed by County Solicitor)

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 No. 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 named in Part 4 by it to school S, a maintained special school.  In its amended case statement to the tribunal dated 17 February 2011 the local authority recorded that L was currently attending school E, which it described as “an independent special school”.  This appears to have been a mistake as in late January the authority’s solicitor had checked with the Department for Education whether school E was now registered as an independent special school and was told that it was registered as “an independent school which offers special classes” i.e. not a special school.  Elsewhere in the same document school E is described as an “independent specialist school”.  By this stage therefore there was a degree of confusion.  L’s parents responded on 10 March 2011 saying that “[school S] is a special school at which we have no desire to place our son.  We do not want our son to attend a special school.”  There were concerns expressed about the academic ability of, and the difficulties faced by, what would be L’s peer group in such an environment.  

The Hearing

8. At the hearing on 21 March 2011, presided over by Judge Reddish, the parents were represented by a solicitor, Mr Barraclough, and the local authority (though there had earlier been a suggestion that it would be represented by a solicitor also) by their SEN manager, Ms Gumble.  I have witness statements from both as to what occurred.  I do not have the judge’s notes, nor have his comments at any stage been sought.  There is a conflict of evidence as to what occurred, but it is one which ultimately I do not need to resolve.  Suffice it to say that it is common ground that to put it at its lowest there was a discussion about the effect of section 316 of the 1996 Act (to which I return below) and that the tribunal indicated that it had, of its own motion, telephoned the Department for Education to ask about the status of school E, receiving the reply that it was registered as a mainstream school with specialist classes.  As all concerned knew that school E was not a maintained school, I find also that it was either expressly stated, or necessarily to be implied, that it was registered as an independent school..  This was followed by an adjournment to allow the representatives an opportunity to consider their position and to see if agreement could be reached.  Skipping over a number of matters which are the subject of dispute, the culmination of the process was that the parties indicated that they had reached agreement.  That agreement was encapsulated in an amended working document signed by the two representatives.  It named in Part 4 under “Type of school”, “independent mainstream school with specialist classes”; and under “Name of school”, [school E].  The tribunal made a consent order, expressed to be made under rule 29, in the following terms:

	“Following consideration of the effect of the provisions of section 316 of the 1996 Act in this case and a brief adjournment of the hearing, the parties’ representatives informed the Tribunal that they had reached agreement as to the amendments to be made to Parts 2, 3 and 4 of [L’s] statement of special educational needs.”

Being satisfied that it was appropriate to do so, the Tribunal made the following order:

The statement issued in respect of [L] shall be amended in accordance with the document headed “Working Document”, amended in manuscript, signed by the parties’ representatives and submitted to the Tribunal by them.  A copy of that document is appended to this order.” 

Post-hearing matters

10. On 30 March 2011 the local authority sought, in the alternative, permission to appeal against the decision dated 21 March 2011 approving the consent order on the basis that:

 “The tribunal made an error of law in finding that [school E] was an independent mainstream school for the purposes of section 316 Education Act 1996.”

Its alternative submission was that:

 “As a result of a procedural irregularity in respect of its interpretation of section 316 Education Act 1996, the tribunal erred in determining that the appeal should be settled by a consent order made under rule 29 of the Rules 2008, despite objections from the LA that the school was not to be regarded as a mainstream school.  The LA therefore seeks to set aside the order under rule 45 of the Rules 2008 on the grounds that the order was based on a procedural irregularity in the way in which the Tribunal approached the application of section 316 Education Act 1996.” 

That application was neither served on, nor sent by the tribunal to, the parents or their solicitor.

11. On 28 April 2011 Judge Tudur issued a decision that:

 “The Tribunal has decided to set aside part of the decision pursuant to rule 45(1)  
	And 
Following consideration of the documents lodged by the Applicant, no consideration has been given to the application for permission to appeal.”

What was set aside was the decision dated 22 March 2011 in relation to Part 4 of the statement.  The basis given was that it was in the interests of justice to do so and that there had been a procedural irregularity in the proceedings.  I need not say any more about this decision as, having been made ex parte the conditions for a further set aside under rule 45 were met.  When the parents’ solicitors received the decision dated 28 April 2011 and objected, Judge Tudur on 18 May 2011 set it aside.  That part of what she decided is not the subject of challenge in the present proceedings.  However, having done so, she indicated:

“Following consideration of the original application made by the LA and the representations made by the parents’ solicitors, I have reviewed again the decision of 22 March 2011 and set aside the decision insofar as it relates to Part 4 of the statement“ [emphasis added].

12. I return to the judge’s analysis below but meanwhile note her conclusion that:

 “The decision to approve the consent order that was clearly inappropriate was a procedural irregularity and contrary to rule 29(1) of the Tribunal Rules.  The decision to approve Part 4 of the consent order should be set aside and the effect of the decision in relation to Part 4 suspended.  

Pursuant to rule 45(1), I set aside the decision of the Tribunal dated 22 March 2011 in relation to Part 4 of the statement, on the basis that it is in the interests of justice to do so and that there has been a procedural irregularity in the proceedings.”

In the light of her decision to set aside part of the decision, she did not consider the application for permission to appeal to the Upper Tribunal. 

Grounds of challenge

13. Mr Newton QC, for the claimant, bases his challenge to that decision on grounds which for the purposes of this decision I group under three main headings:

	(a)	there was no statutory power to re‑open a consent order in any of the ways in which Judge Tudur did so or was invited to do so;

	(b)	if (a) is not accepted, then the judge erred in law in concluding that grounds existed to re‑open the consent order; and

	(c) 	an unfair procedure was followed.

I deal with each in turn.  

No statutory power

14. TCEA provides in section 9 for the review of First‑tier Tribunal decisions, in the following terms:

“9 Review of decision of First-tier Tribunal

(1) The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9)).

(2) The First-tier Tribunal's power under subsection (1) in relation to a decision is exercisable–
(a) of its own initiative, or
(b) on application by a person who for the purposes of section 11(2) has a right of appeal in respect of the decision.

(3) Tribunal Procedure Rules may–
(a) provide that the First-tier Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2)(b)) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;
…
(4) Where the First-tier Tribunal has under subsection (1) reviewed a decision, the First-tier Tribunal may in the light of the review do any of the following–
(a) correct accidental errors in the decision or in a record of the decision;
…
(c) set the decision aside.

(5) Where under subsection (4)(c) the First-tier Tribunal sets a decision aside, the First-tier Tribunal must either–
(a) re-decide the matter concerned, or
(b) refer that matter to the Upper Tribunal.

…
(9) This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision for the purposes of section 11(1), but the First-tier Tribunal's only power in the light of a review under subsection (1) of a decision under subsection (4)(c) is the power under subsection (4)(a).

(10) A decision of the First-tier Tribunal may not be reviewed under subsection (1) more than once, and once the First-tier Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.

(11) Where under this section a decision is set aside and the matter concerned is then re-decided, the decision set aside and the decision made in re-deciding the matter are for the purposes of subsection (10) to be taken to be different decisions.”

15. What is an “excluded decision” is dealt with by section 11(5) in the following terms:

“(5) For the purposes of subsection (1), an “excluded decision” is–
…
(d) a decision of the First-tier Tribunal under section 9–
(i) to review, or not to review, an earlier decision of the tribunal,
(ii) to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,
(iii) to set aside an earlier decision of the tribunal, or
(iv) to refer, or not to refer, a matter to the Upper Tribunal,
(e) a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun), or
(f) any decision of the First-tier Tribunal that is of a description specified in an order made by the Lord Chancellor.”

16. Provision is made in relation to the setting aside of a decision by paragraph 15(2) of Schedule 5 of TCEA in the following terms:

“(2) Rules may make provision for the setting aside of a decision in proceedings before the First-tier Tribunal or Upper Tribunal–
(a) where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party's representative,
(b) where a document relating to the proceedings was not sent to the First-tier Tribunal or Upper Tribunal at an appropriate time,
(c) where a party to the proceedings, or a party's representative, was not present at a hearing related to the proceedings, or
(d) where there has been any other procedural irregularity in the proceedings.

(3) Sub-paragraphs (1) and (2) shall not be taken to prejudice, or to be prejudiced by, any power to correct errors or set aside decisions that is exercisable apart from rules made by virtue of those sub-paragraphs.”

17. Given the terms of these extracts, it is also necessary to look at the Rules in some detail.  

18. Part 5 of the Rules is entitled “Correcting, setting aside, reviewing and appealing tribunal decisions.”  Rule 43 makes clear that “review” in Part 5 means the review of a decision by the tribunal under section 9 of TCEA.  Rule 45 provides so far as relevant:

“45.— Setting aside a decision which disposes of proceedings

(1) The Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if—
(a) the Tribunal considers that it is in the interests of justice to do so; and
(b) one or more of the conditions in paragraph (2) are satisfied.

(2) The conditions are—
(a) a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or a party's representative;
(b) a document relating to the proceedings was not sent to the Tribunal at an appropriate time;
(c) a party, or a party's representative, was not present at a hearing related to the proceedings; or
(d) there has been some other procedural irregularity in the proceedings.”
…

Rule 46 makes provision for an application for permission to appeal.  Rule 47 provides so far as relevant that:

“47.— Tribunal's consideration of application for permission to appeal

(1) On receiving an application for permission to appeal the Tribunal must first consider, taking into account the overriding objective in rule 2, whether to review the decision in accordance with rule 49 (review of a decision).

(2) If the Tribunal decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the Tribunal must consider whether to give permission to appeal in relation to the decision or that part of it.
…”

Rule 48, which deals with change of circumstances in special educational needs cases, is agreed not to be relevant.

Rule 49 provides:

“49.— Review of a decision

“(1) The Tribunal may only undertake a review of a decision—
(a) pursuant to rule 47(1) (review on an application for permission to appeal) if it is satisfied that there was an error of law in the decision; or
(b) pursuant to rule 48 (application for review in special educational needs cases).

(2) The Tribunal must notify the parties in writing of the outcome of any review, and of any right of appeal in relation to the outcome.

(3) If the Tribunal takes any action in relation to a decision following a review without first giving every party an opportunity to make representations, the notice under paragraph (2) must state that any party that did not have an opportunity to make representations may apply for such action to be set aside and for the decision to be reviewed again.”

Rule 50 provides:

“50. Power to treat an application as a different type of application

The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any other one of those things.”

19. Part 3, Chapter 3 of the Rules is headed “Decisions”.  It provides as follows:

“29.— Consent orders

(1) The Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed.

(2) Notwithstanding any other provision of these Rules, the Tribunal need not hold a hearing before making an order under paragraph (1), or provide reasons for the order.

30.— Decisions

(1) The Tribunal may give a decision orally at a hearing.

(2) Subject to rule 14(2) (withholding information likely to cause harm), the Tribunal must provide to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings (except a decision under Part 5)—
(a) a decision notice stating the Tribunal's decision;
(b) written reasons for the decision; and
(c) notification of any rights of review or appeal against the decision and the time within which, and the manner in which, such rights of review or appeal may be exercised.
…”

20. I also need to refer, more briefly:

	to rule 2 which, as is well known, sets out the “overriding objective” and which by paragraph (3) provides that:

 “The tribunal must seek to give effect to the overriding objective when it – (a) exercises any power under these rules; or
(b) interprets any rule or practice direction;”

	to rule 8 which confers a power on the tribunal to strike out proceedings in whole or part;

	to rule 17 which provides for the withdrawal of a case but which with certain exceptions, indicates that notice of withdrawal will not take effect unless the tribunal consents to it;

	and to rule 23 which provides that:
  
“23.— Decision with or without a hearing

(1) Subject to paragraphs (2) and (3), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless—
(a) each party has consented to the matter being decided without a hearing; and
(b) the Tribunal considers that it is able to decide the matter without the hearing.

(2) This rule does not apply to a decision under Part 5.

(3) The Tribunal may dispose of proceedings without a hearing under rule 8 (striking out a party's case).”

21. Mr Newton QC submits that a consent order under rule 29 is not a “decision” for the purposes of Part 5 of the Rules.  While he acknowledged that both “Consent Orders” under rule 29 and “Decisions” under rule 30 appeared under an overall heading of “Decisions” applicable to Chapter 3 of Part 3, nonetheless the existence of two separate rules indicates that it is intended to differentiate one from the other and to limit the category of “decision” to matters that are not consent orders.  He submits that there are important reasons for the distinction.  Normally the tribunal must hold a hearing before making a decision which disposes of proceedings (rule 23) whereas before making a consent order the tribunal need not hold a hearing (rule 29(2)); and in respect of a decision the tribunal must provide each party with written reasons for a decision (rule 30(2)) whereas before making a consent order the tribunal need not provide reasons for the order (rule 29(2)).  He further submits that the phrase in rule 29(2) ‘notwithstanding any other provision of these rules …” is equivalent to ‘for the avoidance of doubt the following two rules that apply to decisions do not apply to consent orders”.  If “decisions” included ‘consent orders’ it would have been expected that both rule 23 and rule 30 would have included express provisions excluding consent orders from their operation.

22. I am not able to accept the submission.  While I agree that a distinction exists so that neither hearings nor reasons are required in the case of a consent order that is merely a reflection of the consensual nature of what is being decided which may make it superfluous to hold a hearing or provide reasons (though the tribunal yet could).  It does not need to make it any less a “decision”.

23. I am unable to read rule 29(2) as a provision “for the avoidance of doubt”.  Rather, introduced as it is by “notwithstanding”, it introduces a cross‑cutting provision to ensure that a hearing or reasons are not required where the consensual nature of what is proposed makes it inappropriate.  That is a legitimate drafting technique and one that obviates the need for rule 23 and rule 30 to include express provisions excluding consent orders from their operation.  Indeed, it might be thought more practical, in that it brings provisions about consent orders in one place rather than leaving readers to look through the Rules as a whole.  

24. I agree with Ms Hannett, for the local authority, that the correct approach to what constitutes a “decision” in the context of the TCEA and the Rules is to interpret the word widely.  This is consistent with the structure of the TCEA which provides for a “decision” and then, by section 11, a category of “excluded decisions” to which the general rules were not intended to apply.  This was made clear by the decision of the three judge panel in LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC), especially at [90] to [93].  I see no reason to confine the application of the reasoning, as Mr Newton invites me to, to interlocutory decisions.

25. Rule 29 envisages an active role for the tribunal, in that not only must the parties reach agreement to a consent order being made but the tribunal must consider it “appropriate”.  There are other provisions too within the Rules which envisage the tribunal needing to decide something in order to dispose of the proceedings, such as rule 8 (strike out) and rule 17 (withdrawal) referred to above.  If it is thought that any such matter should not be subject to the regime of Part 5 of the Rules, it would be open to the Lord Chancellor, acting under section 11(5)(f) of the TCEA, to make an order accordingly.  In the absence of such an order, on the logic of LS, there is no reason why any or all of these should not constitute “decisions”.

26. Mr Newton QC further submits that there are very good reasons for excluding consent orders from the category of “decisions”. He submits that it is in the interests of the parties and of the administration of justice to encourage consent orders and the finality of litigation.  He submits that subjecting consent orders to the range of Part 5 powers would militate against those objectives.  He further submits that because the tribunal’s reasons for a decision are so important to the application of the Part 5 powers it would not be sensible to try and subject consent orders without reasons to the Part 5 powers.

27. While I acknowledge the public interest in encouraging consent orders, the interest is not without its limits.  In the context of citizen/state tribunals there may be countervailing factors as well, such as the desirability of correcting authoritatively a widely misunderstood area by a published decision given after argument, the desirability of ensuring that informed consent exists where there may be unrepresented parties who may be disadvantaged when considering whether to give or withhold their consent, or because the tribunal, often with specialist membership, considers that what is being proposed is wrong.  I do not see that subjecting consent orders to the range of Part 5 powers would unacceptably militate against the objectives.  What would result would be a power to intervene, not a duty, and the above objectives could still be born in mind by a judge deciding whether to exercise the power.  Further, while I accept that there may be cases where a challenge to a consent order would be difficult in the absence of reasons, that will not always be so (an example might be where there was subsequently discovered to have  been material non‑disclosure in response to an earlier tribunal order).  There may, I accept, be some grounds (fraud might be one example) on which it is not possible to unscramble consent orders using the Part 5 powers, but that is not a reason to withhold the availability of those powers from all consent orders.  

28. Nor am I attracted by Mr Newton’s submission that the place to unscramble a consent order is the High Court.  If one applies the overriding objective in interpreting the Rules, as rule 2(3) requires, it is far more likely in the tribunal context to be proportionate to the importance of the case and the resources of the parties for the scope of Part 5 to be interpreted broadly rather than narrowly.

29. While the balancing of these various interests is primarily a matter for the Lord Chancellor acting under section 11(5) and/or the statutory Tribunal Procedure Committee acting under section 22 and Schedule 5 of TCEA, if any of the above considerations led me to conclude that the proposed construction was repugnant to the statutory scheme, I should reconsider.  However, they do not.  

30. Effectively this only leaves the distinction between the terminology of a “consent order” on the one hand in rule 29 and “decision” in rule 30.  I do not think it would be right to place much weight on that when all other considerations point the other way and consider that it is best regarded, as Ms Hannett submits, as an anomaly.

31. I therefore conclude that the decision to approve as “appropriate” under rule 29 a consent order submitted by the parties does constitute a “decision” to which the provisions of Part 5 of the Rules apply.

Was there an error of law in relation to the approval of the consent order?

32. Section 324(1) of the 1996 Act requires a local authority to make and maintain a statement of SEN for a child where it is necessary for the local authority to determine the special educational provision which any learning difficulty the child may have calls for.  Sub-section (4) requires a statement of SEN to “specify the type of school or other institution which the local authority consider would be appropriate for the child.”  On an appeal, by section 326(3) the tribunal may (inter alia) order the local authority to amend the statement.  

33. Section 316 and section 316A of the 1996 Act provide as follows:-

“316 Duty to educate children with special educational needs in mainstream schools

(1) This section applies to a child with special educational needs who should be educated in a school.
…
(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–
(a) the wishes of his parent, or
(b) the provision of efficient education for other children.

(4) In this section and section 316A“mainstream school” means any school other than– 
(a) a special school, or
(b) an independent school which is not–
(i) a city technology college,
(ii) a city college for the technology of the arts, or
(iii) an Academy.

316A Education otherwise than in mainstream schools

(1) Section 316 does not prevent a child from being educated in–
(a) an independent school which is not a mainstream school, or
(b) a school approved under section 342,
if the cost is met otherwise than by a local authority. 
…

It is not in dispute that school E is an independent school and that it is not a city technology college, a city college for the technology of the arts or an Academy; or that, as a result, it is not a “mainstream school” as defined by section 316(4) for the purposes of section 316 and section 316A.  To the extent that the parents’ preference was for school E therefore, to educate L in a mainstream school (as defined) i.e. (subject to immaterial exceptions) a maintained mainstream school would indeed be “incompatible with … the wishes of his parent”:  section 316(3)(a).

34. It is clear that there was, at its lowest, some discussion of section 316 between the judge and the representatives. That is common ground in the witness statements and indeed evident from the terms of the consent order.  However, I do not consider that the tribunal made any sort of ruling on the point.  There is no mention of that in the consent order.  The evidence of Mr Barraclough does not suggest that there was.  The high point in Ms Gumble’s evidence is her statement that “the judge confirmed that for the purpose of this hearing, [school E] should be recognised as mainstream” but that falls short of evidence that there was a ruling that school E was a “mainstream school” within section 316 (and so should be named).  

35. Although Judge Tudur’s decision of 18 May in its terms records that L’s parents had accepted that the tribunal had accepted that the tribunal had made such a finding, that arose because (as Ms Hannett accepted) the judge had mistakenly viewed what was in a submission from the local authority as being contained in a submission from L’s parents.  (This error is relied upon by Mr Newton as part of negating the suggestion that the tribunal had made a ruling on section 316 rather than as providing a separate ground of challenge.)

36. As already indicated, section 316 could not be relied upon to support the naming of school E.  Even if the context in which section 316 comes up in practice is frequently that of a decision between maintained mainstream and maintained special schools, it is perhaps unlikely that the plain words of section 316(4)(b) excluding most independent schools would have been overlooked.  It was however the case that the local authority had, prior to the hearing, changed its position from naming a maintained mainstream school to naming school S, a special school.  In deciding (if it had to do so) whether school S was appropriate to be named for the purposes of section 324 the tribunal would have needed to canvass with the parents whether, if they could not have their preference of school E, an independent “mainstream school with some specialist classes”, their preference would be for maintained mainstream education.  I do not consider that it is possible to infer that that would have been their preference:  the evidence contains much forcefully expressed opposition to maintained mainstream schooling, but also opposition to sending L to a special school and to being forced to embrace home education once again.  To that extent, the case differs from CCC v The London Borough of Tower Hamlets (SEN) [2011] UKUT 393 AAC where there was evidence (see [2] and [12] of that decision) that the appellant wished the child to attend a mainstream school if the preferred school was not named.  However, the lack of such evidence in the present case does not matter, as the tribunal would have been required to probe the matter at the hearing before the local authority’s preferred school could be named.  

37. At that point, one did not know what the wishes of L’s parents would be on the basis that they did not get their preferred choice and thus it was doubtful whether sub‑paragraph (a) of section 316(3) could be relied upon by the local authority .  Further, the local authority, perhaps because it had changed horses in mid‑stream in relation to the type of school proposed, had not provided evidence that to educate L in a (maintained) mainstream school would be incompatible with the provision of efficient education for other children, and so, at that point, it would have been in difficulty in relying on sub‑paragraph (b) either.  

38. There was thus a sensible context for the tribunal to have a discussion of section 316 with the representatives, other than one based on a mistaken view that section 316 could be relied upon to support the parents’ preference for school E.  The above analysis is consistent with much of what is in even Ms Gumble’s statement, including the judge’s reported remarks as set out in [34]: if one takes a preference for school E as showing a preference for mainstream (in the non-statutory sense) education, then if that preference was taken through, if the need arose, to mainstream education (in the statutory sense), then the local authority would face the difficulty of justifying a special school under section 316.  It is consistent with the judge’s reported remark that the local authority had dug themselves into a hole (or a “legal hole”) by seeking to name a special school in Part 4.

39. I do not consider that this conclusion is affected in any way by R(H) v Special Educational Needs and Disability Tribunal [2004] EWCA Civ 770.  That case in my view is concerned with the priority between the parental choice provisions of sch 27, para 3 of the 1996 Act, where lawfully invoked (they only apply where a preference is expressed for a maintained school) and section 316: see especially Parker LJ at [71].  The case is not authority for the proposition that section 316 can only arise in a case where sch 27 para 3 has been invoked.  In the present case, L’s parents had not expressed a preference for a maintained school, but that did not mean that section 316 did not have the potential to become relevant in the course of the tribunal’s deliberations to the extent, and for the reasons, indicated above.

40. There is in appropriate cases nothing wrong with a tribunal judge giving initial, provisional indications as to issues he or she sees arising in the case.  Indeed, as they encounter cases prepared with a wide range of thoroughness and skill, they may have to be particularly ready to do so.  It can contribute to the enabling role of the tribunal and to the effective use of time.  Further, it is not unreasonable to explore the extent to which common ground can be reached between the parties and may be particularly desirable in SEN cases because of the working relationship which parents and local authority may have to sustain after any tribunal hearing.  There are many more variables, and a less prescriptive legal framework, in special educational needs cases than in some other cases with a strong statutory element (such as social security) and so rather more scope for exploring a negotiated approach.  That, it seems to me, is likely to have been what was going on here.  I view it as highly unlikely that, as indicated by Ms Gumble, the judge explained that “the option was for both parties to agree to a consent order or the hearing would go ahead and the decision would be to name the parents’ preferred school, [school E].”  The suggestion that a tribunal judge would say, in advance, that the tribunal would hear the case but with a closed mind as to the outcome is so at odds with the nature of the judicial process that I consider that Ms Gumble must have misinterpreted what was being said.  

41. I approach the matter therefore on the basis that there was no ruling but, as recited by the consent order, consideration of the effects of section 316, followed by an adjournment for the parties to consider their position.  It is impossible on the material before me to reconstruct the exact tenor of what was said, but it does not matter.  Whether the judge’s preliminary views expressed in the course of the initial discussion were likely to prove well-founded or not was one factor for the parties to consider in deciding whether or not to agree a consent order.  There may however be many other factors, including the possible consequences for the child if particular courses of action are or are not adopted; the benefits of savings of cost and time if agreement is reached, compared with contested proceedings in the First‑tier Tribunal and possibly beyond; budgetary issues (to which the number of school years a pupil has left to go might be relevant) and so on.  I do not know what factors were in the local authority’s mind in agreeing the settlement in this case but agree it did, after its representative had had an opportunity to consider the position.  If she was making the settlement under protest following a ruling as to the applicability of section 316 which she wished to reserve the right to challenge, she should have pressed for that and not consented until satisfied that the ruling, and the reservation of her position, had been adequately recorded.

42. It follows that the tribunal’s decision that it was “appropriate” for the purposes of rule 29 to make the consent order was not vitiated by having made a legally erroneous ruling as to the effect of section 316, as it did not make one.

43. Nor do I consider that it was vitiated by the description of the “type of school” in the agreed working document appended to the consent order as being “independent mainstream school with specialist classes”.  The “type” of school which section 324(4)(a) requires to be named is not a defined term.  The definition of “mainstream” in section 316 does not apply to it.  It makes sense that the “type” should be described in narrative terms (which need not exclude reference to categories recognised by statute).  To do so will assist the search for a school in the cases where no school has been named and in cases where provision falls through or where a statement has to be transferred to another local authority because, for instance, the family has moved.

44. Against that background, I confess to some uncertainty as to how meaningful such a designation is.  Mr Newton QC was not in a position to advance a very clear meaning for the expression and the terminology, with the word “mainstream” being used in both a statutory and non‑statutory sense, seems highly likely to generate confusion about how the word was being used at any given time, as indeed has happened in the present case.  That said, the tribunal was being asked whether it was appropriate to make an order in respect of something which the parties had agreed upon.  Both parties knew that school E was not a mainstream school in the section 316 sense, yet chose to include the wording.  This was not a case where the school was yet to be named, and, given L’s age, the number of years in which his statement might fall to be transferred to another authority was small.  The description of the “type” of school was perhaps not of the greatest importance and a description summarising the type of school which school E was perceived to be, including by the Department for Education, was evidently considered by the parties to be sufficient.  It seems to me that in the absence of a misdirection of law as to “type” for the purposes of section 324(4) the tribunal’s decision to approve the consent order could only be overturned on this ground on the basis of perversity and that, when one weighed other factors in the balance, such as that it was an agreement that the parties had reached, there is no possibility of establishing that.  

Procedural errors

45. As I have resolved this case on the basis that Judge Tudur was not entitled to conclude that the tribunal chaired by Judge Reddish was in error in approving the consent order as appropriate, it is not necessary to examine the procedural grounds of challenge for the purposes of my decision.

46. I merely note that, as it respectfully seems to me, the decision being challenged in this application contains a degree of confusion as to the rule being relied upon.  The decision of 28 April 2011 was taken under rule 45(1).  That was a decision to set aside, on the basis of procedural irregularity.  Rule 45 is one of two routes by which the First‑tier Tribunal may come to set aside a decision.  The other is following a review under section 9 of the TCEA, in that, where it has reviewed a decision, the tribunal may in the light of the review set the decision aside: section 9(4)(c).  However, the First‑tier Tribunal may only undertake a review on an application for permission to appeal under rule 47 or following a change of circumstances under rule 48:  see rule 49(1).  Judge Tudur’s decision of 28 April did not involve any consideration of the application for permission to appeal (because the matter was thought to be resolved by the decision to set aside under rule 45).  Consequently no question of a review (and associated set-aside) arose under that decision.

47. Despite that, the decision of 18 May was drafted as if a second review.  That was therefore a slip.  There certainly were not two section 9 reviews - something which section 9(10) of TCEA would prohibit.  In any event, what the decision of 18 May says it actually did was not a review either, but a set aside under rule 45(1).  The “procedural irregularity” relied upon was the inappropriateness of the approval under rule 29 because of the tribunal’s perceived mistaken view as to the applicability of section 316 and/or the wording about the type of school.  However, even if (contrary to my view) this were a valid criticism, I do not consider that it would be correctly to be viewed as a “procedural irregularity” within rule 45(2)(d).  What is contemplated by a “procedural irregularity” can be inferred both from the existence of the distinct enabling power to provide for a set aside in Schedule 5 of TCEA, contrasted with section 9 of that Act, and from the residual category which forms rule 45(2)(d) coming after a list of procedural difficulties such as documents going missing, people not attending and so on. I respectfully agree with Judge Jacobs, writing extra-judicially in “Tribunal Practice and Procedure” (Second Edition) at page 535 where he observes that “the power is limited to procedural errors; it does not allow a decision to be set aside for matters that relate to the substance of the decision”.  I accept however that if, contrary to my view, there had been a point of substance, it could potentially have been dealt with by way of review under rule 49.  

Costs

48. Finally, the relief sought included an order that the defendant and/or the interested party should bear the costs of this application.  In the Upper Tribunal an application for an order for costs must comply with rule 10(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008 No. 2698, which requires an application in writing, accompanied by a schedule of costs sufficient to allow summary assessment.  The application must be made within the time limit for which rule 10(6) provides.  I should not be taken in this paragraph as suggesting that it either is, or is not, appropriate for an application for costs to be made, and if one is made, it will be considered on its merits.  But if one is made, I draw to the attention of both parties as matters they should address in any submission the report on “Costs in Tribunals” prepared by the Costs Review Group to the Senior President of Tribunals (December 2011) (especially section (h) thereof) and the possible implications of the fact that, though this case started in the Administrative Court it has at all times fallen within the scope of the Lord Chief Justice’s Practice Direction as a matter for the Upper Tribunal.  Issues may arise for consideration as to whether, even though steps have not yet been taken formally to implement the above report,  the Upper Tribunal should necessarily and in all cases apply in judicial review proceedings the same approach to costs as would be applied by the High Court.

(Signed on the Original)

								C G Ward
								Judge of the Upper Tribunal 

								21 June 2012