[2024] UKUT 128 (AAC)

Mr Line submitted that the Tribunal approached its task as if it were subjecting the Council’s decision to a review, as opposed to a de novo merits appeal. At paragraph 22 it stated that it did not hear oral evidence and at paragraphs 23-28 there is no reference to documentary evidence. Paragraph 24 and the first sentence of paragraph 25 showed that the Tribunal was prepared to allow the appeal on procedural impropriety grounds, rather than in relation to the substantive merits. The Tribunal then went on at paragraphs 25-27 to determine that the EHCP could be paused or frozen after its decision allowing the appeal – which was in error for the reasons stated in relation to Ground 4.

That approach, which was closely linked to the arguments in Ground 1, obscured the approach which should be taken in a statutory appeal, which was to stand in the decision maker’s shoes and remake the decision as at the date of the appeal hearing. The fact that the Tribunal relied on procedural impropriety as a basis for upholding the appeal was a strong indication that it was performing a review (in a quasi-judicial review sense), which was not its role.

If, in properly exercising its jurisdictional function, the Tribunal had simply evaluated whether the EHCP should be ceased for the reason relied on by the Council (i.e. under s.45(1)(a), linked with s.24), then the clear answer was that the EHCP should be ceased and the appeal should be dismissed, because T had been residing (and at the time of the hearing was still residing) abroad. In altering the scope of its approach, as per the arguments above, the Tribunal did not perform its function properly or lawfully and therefore erred.

Moreover, for reasons stated in relation to Ground 1, the procedural failing in question (a failure to consult pursuant to regulation 31 of the 2014 Regulations) was not of such a kind to vitiate the decision to cease to maintain and, even if in principle it could have been, it would need a decision of the High Court to quash that decision. It was not for the Tribunal, which had no jurisdiction to determine breaches of the 2014 Regulations, to substitute the function of the High Court in an appeal where its jurisdiction is limited by statute (s.51(2)(f) of the 2014 Act).

In any case, Judge Ozen noted that “the error here, however, is that the panel failed to give clear reasons as to why it decided that the LA’s procedural failings meant that it could not cease to maintain the EHC Plan”. The Council submitted that the errors in the Tribunal’s approach went beyond that, but at the least Judge Ozen was correct that Tribunal’s decision had not been adequately reasoned.