[2024] UKUT 89 (AAC)

The Appellants appealed to the First-tier Tribunal against the contents of an Education Health and Care Plan issued by the Respondent Council under Part 3 of the Children and Families Act 2014 in respect of their son. The plan was issued on 3 March 2021 and the appeal was received by the Tribunal on 17 March 2021.

The First-tier Tribunal issued its decision on the Appellants’ appeal on 23 December 2021. The Appellants applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The Tribunal refused permission and its determination was issued on 24 February 2022.

On 10 March 2022, the First-tier Tribunal received the Appellants’ application for a costs order against the Council. The Tribunal sought the Appellant’s observations on its preliminary view that the costs application was out-of-time because it was not received within 14 days of the date on which the decision notice was issued on 23 December 2021. In response, the Appellant’s representative argued that the time for making an application for a costs order did not begin to run until proceedings on the appeal had come to an end, which did not occur until the First-tier Tribunal refused permission to appeal to the Upper Tribunal. On that basis, time began to run on 24 February 2022 and the Appellants had until 10 March 2022 to apply for a costs order. Hence, the application for a costs order was made in time.

The First-tier Tribunal disagreed with the Appellants and ruled that time for making a costs order began to run on 23 December 2021. The application received by the Tribunal on 10 March 2022 was therefore out-of-time. The Tribunal then considered whether to extend time and admit the Appellants’ late application. It refused to extend time. The application was made 55 days late and “to resurrect issues so late after the event needs good reason”. The Appellants’ reason was that they misunderstood the time limits for applying for permission to appeal. The Tribunal rejected the Appellants’ argument and found, “it is not conscionable that [the Appellants’ experienced legal advisers] would not have properly advised the parents”. Finally, the Tribunal asked itself, “what is required in terms of fairness and justice”. In answering this question, the Tribunal rejected the submission that the Council would suffer no prejudice because “the LA can expect litigation to be conducted efficiently and in compliance with the rules”. The Tribunal accepted that refusing to extend time might cause the Appellants “real prejudice” but, having reviewed the proceedings, thought there was little prospect of the Appellants establishing unreasonable conduct on the part of the Council.