![[2023] UKUT 177 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
Ground 4: in relation to the Review Decision, Judge Tudur acted in a procedurally improper way and/or in a way which was ultra vires, by setting aside only part of the Decision Grounds 3 and 4
Ground 4: in relation to the Review Decision, Judge Tudur acted in a procedurally improper way and/or in a way which was ultra vires, by setting aside only part of the Decision.
Grounds 3 and 4
However, in advance of the hearing I drew counsel’s attention to the decision of the Court of Appeal in Point West GR Ltd v Bassi & Ors (to which reference is made in the commentary in vol. III of the Social Security Legislation 2022/23 (Administration, Adjudication and the European Dimension) at 3.46 (page 1101), which deals with the 2007 Act) and in particular the judgment of Lewison LJ at [25] and [35].
Lewison LJ said that
It is common ground, rightly in my judgment, that the statutory power to review is a power to review a decision "on a matter in a case." That is distinguished from the whole of the decision. If, following the review, the FTT decides to set aside the decision it must either re-decide "the matter" or refer "that matter" to the UT. It follows that the mere fact that the FTT's power to review has arisen does not without more entitle the FTT to start all over again. The power to review is a discretionary power. That power is vested in the FTT. It follows that it is for the FTT itself to determine the scope of any review that it is willing to undertake. It is not for the parties to define that scope. The FTT must not allow a decision to review to degenerate into a free-for-all.
…
Where the FTT undertakes a review of one of its own decisions, it must make it clear which parts (if any) of that decision it is prepared to review and, following the carrying out of the review, which parts (if any) of that decision it intends to set aside. Otherwise one is left in the thoroughly unsatisfactory situation that has arisen in this case, where the parties are at odds about what exactly the FTT intended to do.”
Mr Line rightly accepted that that decision was binding upon him and he did not pursue grounds 3 and 4, so that only grounds 1 and 2 remained live for decision.
There had hitherto been a conflict of authority in the Upper Tribunal as to whether there was power under s.9(4)(c) of the 2007 Act to set aside and/or review only part of a decision, although both predated the decision of the Court of Appeal in Point West. In Harrow Council v AM [2013] UKUT 157 (AAC) it was held at [18] by Upper Tribunal Judge Mark that
“there is no power under section 9(4)(c) to set aside only part of a decision, and the matter which is to be referred to the Upper Tribunal is the whole of the matter which was the subject of the decision set aside, not a mere part of it…”.
By contrast, however, in Essex CC v TB [2014] UKUT 559 (AAC) it was said at [43] by Upper Tribunal Judge Rowland that
“there seems no reason why a discrete part of a decision should not be set aside under section 9(4)(c)…”
The question is now definitively resolved by the decision of the Court of Appeal in Point West and to the extent that Essex CC v TB holds to the contrary it should not be followed.
- Heading
- Introduction
- Parties
- Test for Permission
- Background
- The Tribunal’s Decision
- The Amended Final EHCP
- Application For Permission To Appeal
- Review
- Written Submissions Before The Review Hearing
- The Review Hearing
- The Post-Review Decision
- 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
- Judicial Review
- 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 4: in relation to the Review Decision, Judge Tudur acted in a procedurally improper way and/or in a way which was ultra vires, by setting aside only part of the Decision Grounds 3 and 4
- The Council’s Submissions
- in East Sussex County Council v KS [2017] UKUT 275 (AAC) at [89] the Upper Tribunal held that, even if medical and nursing support was essential for a child to be educated, that did not make it specia
- in East Sussex County Council v JC [2018] UKUT 81 (AAC) at [29] the Upper Tribunal recognised that the provision of a powered wheelchair could only be special educational provision to the extent that
- Ground 2
- A’s Submissions
- Overall Approach (1)
- Overall Approach (2)
- Ground 1 – mentoring as special educational provision
- Ground 2 – mentoring every day
- The Council’s Reply
- what A failed to address was that the Tribunal did not say whether it was applying s.21(1) or s.21(5) . As the Council had previously pointed out, it was much more likely that the Tribunal was applyin
- A wrongly proceed on the assumption that the Tribunal found that the provision was s.21(1) special educational provision. But, for reasons already set out, the Council did not accept that that was a r
- a need for consistency was generally not to be equated with a need for special educational provision: Learning Trust v MP [2007] EWHC 1634 at [41]. The cases showed that cases where consistency alone
- consistency across settings and consistency of development were not necessarily materially distinct. That still went to the point raised by the Upper Tribunal in Hampshire County Council v JP [2009] U
- Analysis
- at least some of the mentoring support constituted respite, which was not special educational provision (paragraph 40 above)
- Ground 2
- The Exercise Of The Power To Review
- Conclusions