[2024] UKUT 89 (AAC)

under rule 10(5), the event which starts the clock ticking is the sending of a “decision notice”;

it is to be presumed that a term used more than once in a single piece of legislation was intended to bear a consistent interpretation. If the legislator intended otherwise, one would expect that contrary intention to find expression in the legislation;

under rule 30(2), the things that the Tribunal must provide, after making a decision which finally disposes of all issues, include a “decision notice” stating the Tribunal’s decision;

time for making an application to the First-tier Tribunal for permission to appeal runs from the date on which certain instruments are sent, one of which is “the relevant decision notice” (rule 46(2)(za));

the Tribunal’s determination of an application for permission to appeal is not required to be embodied in a decision notice. Rule 47(3) simply requires the Tribunal to send a “record of its decision” to the parties.

Since I have rejected the Appellants’ case on ground 1, it follows that the First-tier Tribunal correctly ruled that the Appellants’ costs order application was made out-of-time. I must therefore deal with ground 2.

I am satisfied that the First-tier Tribunal, in refusing to exercise its discretion to admit the Appellant’s late application for a costs order, made no error on a point of law. None of the Appellant’s arguments are made out:

in my judgment, the Tribunal was not required to give weight, in the Appellants’ favour, to their professed misunderstanding of the law. It cannot be said that the Appellants’ interpretation of the time limit was the most natural interpretation of rule 10(5) and only shown to be incorrect once some other provision, that might readily be overlooked, was taken into account. It should have been obvious to the Appellants, or their advisers, that their interpretation of the time limit provision was not free of doubt yet they did not put the Tribunal on notice that their application might, depending on how the time limit provision was construed, be made out-of-time nor did they ask the Council to waive any objection to the application being admitted if it proved to have been made late. Instead, the application was made on the very last date on which it would have been in time had the Appellants’ interpretation of rule 10(5) been correct. It should also be remembered that the local authority was bound to have suffered prejudice, or at least inconvenience, through admission of a late application so that, even if the Appellants’ legal misunderstanding might have been considered understandable, any credit flowing from that would have needed to be balanced against the prejudice, or inconvenience, to the local authority. Even if the Appellants should have been given credit because their misunderstanding of rule 10(5) was a reasonable mistake, I find it difficult to see how that could have been more than a neutral consideration given the inevitable prejudice, or inconvenience, caused to the Council by having to respond to a late costs order application;

it should be remembered that the Tribunal’s analysis of the merits of a late costs application, undertaken as part of its decision whether to extend time, is bound to involve less scrutiny than that given in determining an in-time application. The Tribunal is not required to determine, or conduct a mini-trial of, the question whether the application, if made in-time, would succeed. That would be an unnecessary waste of the limited resources available to the Tribunal. Bearing that in mind, a Tribunal’s failure to set out, or address, each and every aspect of the grounds relied on in a costs order application does not necessarily demonstrate that, in assessing merits for the purposes of considering whether to extend time, the Tribunal fundamentally understood the basis of the costs application. The Appellants argue that the Tribunal mistakenly characterised the Council’s alleged unreasonable conduct as its refusal to concede any placement, and thereby overlooked the ‘actual case’, which was unreasonable conduct in pursuing a special school placement. This argument accurately reflects neither the grounds relied on in the costs order application nor the Tribunal’s understanding of those grounds. The Tribunal said that the costs application “focuses on concerns that the LA had failed to identify a school placement…starting in September 2021, and the failure to respect the Parents’ right to mainstream education”. The use of ‘focus’ shows that the Tribunal was not purporting to give an exhaustive description. The application itself included the allegation that the Council failed “to name a school at all at the outset” and advanced a special school without explaining why the right to mainstream education did not apply. The Tribunal did not mischaracterise the Appellants’ reasons. Failure to name a school was included amongst those reasons, as was the Council’s alleged failure to give effect to the parental right to mainstream education. The Tribunal’s reference to the alleged failure to respect the parental right to mainstream education was a perfectly reasonable way of summarising the Council’s alleged unreasonable conduct regarding pursuit of a special school placement which, of course, is not a mainstream placement;

if a Tribunal actively case manages proceedings, it is to be assumed that, in the absence of evidence to the contrary, it did so effectively. Effective case management necessarily involves ensuring proper conduct on the part of the parties. The Tribunal was therefore perfectly entitled to infer that the Tribunal’s active case management minimised the scope for unreasonable conduct.