Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 177 (AAC)

Fecha: 19-Jun-2023

Ground 1: The Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to con

Ground 1: The Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to conclude that some of the mentoring support during term time was special educational provision, it erred by failing to address the extent to which it was special educational provision as opposed to social care provision.

Ground 2: The Tribunal erred by concluding that mentoring support was required as special educational provision, at all or alternatively to the extent ordered, during non-term time periods.

Application Not Admitted

27.

A’s solicitors wrote a long letter to the Tribunal, opposing the grant of permission to appeal, on 21 October 2022, but in any event the application was not admitted by Judge Tudur on 14 December 2022.

28.

In her decision she explained that

“1.
On the 18 October 2022, the Tribunal received an application for permission to appeal the decision of the Tribunal issued following a review hearing held on the 3 September 2022.
2.
Section 9 of the Tribunals Courts and Enforcement Act 2007 provides that:
“The First-tier Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 11(1) (but see subsection (9))”.
3.
Section 11 (1) of the Tribunals Courts and Enforcement Act 2007 provides:
“(1)
For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision”.
And an excluded decision is defined by the same section to include:
“d)
a decision of the First-tier Tribunal under section 9—
(i)
to review, or not to review, an earlier decision of the tribunal,
(ii)
to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal,
(iii)
to set aside an earlier decision of the tribunal, or
(iv)
to refer, or not to refer, a matter to the Upper Tribunal;
(e)
a decision of the First-tier Tribunal that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun)”.
4.
The challenged decision issued on the 20 September 2022 is a decision following a review and set aside of part of the decision of the Tribunal issued on the 23 February 2022. It is therefore an excluded decision in respect of which there is no right of review or appeal under sections 9 and 11 of the Tribunals Courts and Enforcement Act 2007.
5.
The application for permission to appeal is not admitted.”