[2024] UKUT 89 (AAC)

The first ground of appeal is that the First-tier Tribunal arguably misdirected itself in law when finding that its decision of 23 December 2021 “finally disposed” of all issues arising in the proceedings. The Tribunal should have directed itself that a decision finally disposing of all issues was not made until determination of the Appellants’ application for permission to appeal. Accordingly, time for applying for a costs order, under rule 10(5), did not begin to run until the Tribunal issued its determination refusing permission to appeal to the Upper Tribunal.

The second ground of appeal only arises if the first ground fails. It is that the First-tier Tribunal arguably erred in law in refusing to exercise its discretion to admit the Appellants’ late application for a costs order. The Tribunal’s refusal was vitiated by the following:

the Tribunal failed to acknowledge the absence of any authority on the construction of rule 10(5)(a). This was not a case in which the Appellants ignored clear authority or acted contrary to the only tenable construction of the legislation;

the Tribunal failed to deal with, or understand, the nature of the arguments advanced in support of the costs application. Characterising the Appellant’s case as simply unreasonable conduct through the Council refusing to concede any particular placement overlooked the principal argument which was that the Council unreasonably pursued a special school placement;

in finding that the Tribunal’s ‘active case management’ precluded, or rendered unlikely, unreasonable conduct on the part of the Council, the Tribunal took into account an irrelevant consideration. The Tribunal’s active case management did not go to the issue of whether the Council’s underlying conduct was unreasonable.