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Overall Approach (1)
Overall Approach (1)
Anyway, it was well established per RB v FTT [2010] UKUT 160 (AAC) at [30] (with a panel which included Lord Carnwath SPT) that:
“The substantial element of judgment or discretion is no doubt a reason for review decisions not being appealable and it is also a reason for expecting that the Upper Tribunal will seldom interfere with review decisions when judicial review proceedings are brought” [emphasis added].
The position must be all the more so where, as here, the judicial review was to a decision taken following a review in circumstances in which the possibility for an appeal was specifically precluded by the statutory scheme.
Even in an appeal the Upper Tribunal must take particular care in relation to issues of judgment by the expert Tribunal. That was all the more so here (in a judicial review of a review decision) where what was in issue was entirely a matter of the Tribunal’s expertise having considered the evidence at a full merits hearing and then in a reconsideration. It would take the clearest of legal error to justify Upper Tribunal interference with all that at the present stage. That was simply not the case here, for the following reasons.
- 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