[2024] UKUT 128 (AAC)

I do not accept that the Tribunal was approaching its task as if it were subjecting the Council’s decision to a review as opposed to a de novo appeal. What it was plainly doing was deciding an appeal which had been brought before it as the appropriate statutory tribunal pursuant to s.51 of the 2014 Act against one of the matters listed in subsection (2), namely (f) a decision by a local authority under s.45 to cease to maintain an EHCP for a child or young person.

It is apparent from paragraph [23] of the decision that the Tribunal considered all of the written material put before it. It is also apparent that the Tribunal in performing that task was entitled to assess whether the Council came to the correct conclusions of matters of fact and law, see DH and GH v Staffordshire CC [2018] UKUT 49 (AAC) at [19] where Upper Tribunal Judge Jacobs said that

“The appeal to the First-tier Tribunal is against the local authority’sdecision. In this case, that was the decision that an EHC plan was not necessary. This appeal is sometimes called a general appeal. This means that the issue for the tribunal is whether, on the evidence and submissions before it, the local authority came to the correct conclusions on matters of fact, law and judgment.The tribunal is free to form its own view on any matters covered by the decision.”

The argument that the fact that the Tribunal relied on procedural irregularity as the basis for upholding the appeal does not mean that it was illegitimately performing a quasi-judicial review outside the scope of its jurisdiction. On the contrary, the short point was that, if a case fails on a preliminary point in any event (as the Tribunal decided), there is no need to have to go on to consider the substantive merits. As the Tribunal shortly found in paragraph [24]

“As a Tribunal, we note that the wording of s45 of CFA 2014 is that the LA may cease to maintain the EHCP of a child or young person for whom they are no longer responsible. We note also that if they decide to exercise that power to cease to maintain the EHCP, they must follow the procedure set out in reg. 31 of the SEND Regs 2014. The LA conceded in the hearing on 20 March 2023 that they have not correctly followed that procedure. We find, that having made that concession, the LA should also have conceded the appeal, because it is mandatory that they comply with reg.31 and they have not. Having failed to comply with the mandatory requirements of reg. 31, the LA cannot cease to maintain T’s EHCP, even at the conclusion of this appeal.”

As to the argument that the Tribunal failed to give clear or adequate reasons for its conclusion, I am satisfied that paragraph [24] of the decision perfectly adequately set out its conclusions and the reasons for its decision.

The reliance on the remarks of Judge Ozen in granting permission to appeal (as set out in paragraph 52 above) about the Tribunal’s alleged inadequacy of reasons was misplaced. As I explained in paragraph 10 above, the appeal is against the decision of the Tribunal on 30 March 2023 and the remarks of Judge Ozen on 14 June 2023 do not form part of that decision.

Moreover, it is important in this context to remember what Upper Tribunal Judge Wikeley said in Basildon DC v. AM [2009] UKUT 113 (AAC)

“27.

There is ample authority in the case law about the standards of reasoning expected of fact-finding tribunals in explaining their decisions. There is, for example, a helpful and realistic discussion by Mr Commissioner (now Judge) Rowland in CIB/4497/1998 (at paragraph 5):

‘5. It cannot be overemphasised that there is no simple formula for writing reasons for a decision. The minimum requirements are that the unsuccessful party must know why his or her principal submissions have been rejected and that the process of the tribunal's reasoning must be sufficiently clearly outlined to avoid any reasonable suggestion that the tribunal have made an error of law. Obviously, the more clearly the reasons are expressed in the decision itself the better, but lack of clarity will not render a decision erroneous in point of law if the reasons can nevertheless be discerned with reasonable diligence from the decision and surrounding documents. A statement of reasons may be adequate even though it could have been improved … Those who assert that a tribunal's reasoning is inadequate must themselves explain clearly both the respect in which it is inadequate and why the inadequacy is of significance. It must be borne in mind that there are limits to the extent to which a tribunal is obliged to give reasons for reasons and to the extent to which they can be expected to give reasons for matters of value judgement. Furthermore, it is clear from R(A) 1/72 that it is not obligatory to deal with every piece of evidence and that, while "a decision based, and only based, on a conclusion that the total effect of the evidence fails to satisfy, without reasons given for reaching that conclusion, will in many cases be no adequate decision at all", that will not always be the case. What is required by way of reasoning depends very much on the circumstances of the particular case before the tribunal.’

28.

It is also well established that when explaining how it has exercised its judgment, a first instance tribunal is not bound to deal with every matter raised in the case. As Tucker L.J. explained in Redman v Redman [1948] 1 All E.R. 333 at 334:

‘I desire to emphasise as strongly as I can that the fact that judge or commissioner does not set out every one of the reasons which actuate him in coming to his decision will not be sufficient to support an argument in this court that he has not applied his mind to the relevant considerations … The mere fact that, in his judgment, the commissioner may not have mentioned some fact or other or that he emphasised some other fact is quite insufficient to persuade me that he did not, in fact, apply his mind properly to the relevant matters which he does not in terms mention.’

29.

Similarly, in a more recent decision in the matrimonial and family jurisdiction, Holman J. in B v B (Residence Order: Reasons for Decision) [1997] 2 F.L.R. 602 (at 606) stated that:

‘I cannot emphasise strongly enough that a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished or thorough as it might otherwise be.’

30.

A tribunal’s Statement of Reasons is not usually an ex tempore (unreserved) judgment, but the observations of Holman J. are just as applicable to decisions of fact-finding tribunals as they are to decisions of courts of first instance.

31.

This tribunal made a clear and categorical credibility finding in favour of the claimant which in my judgment is unimpeachable and central to its decision. The credibility finding underpinned the tribunal’s conclusions on the nature of the relationship between the claimant and her landlord and its acceptance of her evidence about e.g. the rental agreement and the payment of rent. That amounted to “clear and overwhelming evidence” which was not undermined by the “unusual” features of the case. The tribunal evaluated the evidence and explained why those factors did not alter its conclusion.

32.

My conclusion therefore is that the tribunal’s decision discloses no error of law in this respect. It is important to read the decision as a whole. I am satisfied that this tribunal applied the correct legal tests, found facts that it was entitled to do on the evidence before it and provided adequate reasoning.”

As Mr Commissioner Temple said in R(A) 1/72 at paragraph 8

“It is not, of course, obligatory thus to deal with every piece of evidence or to over-elaborate, but in an administrative quasi-judicial decision the minimum requirement must at least be that the claimant, looking at the decision, should be able to discern on the face of it the reasons why the evidence has failed to satisfy the authority”.

To that I would add what Lord Hope said in Shamoon v. Chief Constable for the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337 at [59]:

“It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.”

As he also said in R (Jones) v. First-tier Tribunal (Social Entitlement Chamber)& Criminal Injuries Compensation Authority [2013] 2 AC 48 at [25]:

“It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.”