[2024] UKUT 439 (AAC)

Swansea seek permission to appeal the ETW’s review decision on a number of grounds. Central to those grounds is the terms of regulation 56 of the 2012 Regs. This regulation provides as follows:

“Application or proposal for review of the Tribunal’s decision

56.

—(1) A party may apply to the Secretary of the Tribunal for the decision of the President or the tribunal panel to be reviewed on the grounds that—

(a)the decision was wrongly made as a result of a material error on the part of the Tribunal administration;

(b)a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear;

(c)there was an obvious and material error in the decision; or

(d)the interests of justice so require.

(2)

An application that a decision of the President or the tribunal panel is reviewed must be made—

(a)in writing stating the grounds;

(b)no later than 28 days after the date on which the decision was sent to the parties.

(3)

The President may—

(a)on the application of a party or on the President’s own initiative, review and set aside or vary any decision made by the President on a ground referred to in paragraph (1);

(b)refuse an application for a review of the President’s decision in accordance with paragraph (6).

(4)

The President or the Chair of the tribunal panel which decided the case may—

(a)on the application of a party, or on the President’s or Chair’s own initiative, review and set aside or vary any decision made by the tribunal panel on a ground referred to in paragraph (1);

(b)refuse an application for a review of the tribunal panel’s decision in accordance with paragraph (6).

(5)

The Chair of the tribunal panel which decided the case may order a rehearing before the same or a differently constituted tribunal panel.

(6)

An application for a review may be refused in whole or part by the President, or the Chair of the tribunal panel which decided the case, if in the President’s or the Chair’s opinion the whole or part of it has no reasonable chance of success.

(7)

Unless an application for a review is refused in accordance with paragraph (6), the review must be determined after the parties have had an opportunity to be heard—

(a)by the President, where the decision was made by the President;

(b)where the decision was made by a tribunal panel, by the President or the tribunal panel which made the decision or by another tribunal panel appointed by the President.

(8)

If the President or the Chair of the tribunal panel which decided the case proposes, on the President’s or the Chair’s own initiative, that a decision is reviewed—

(a)the Secretary of the Tribunal must serve notice on the parties no later than 28 days after the date on which the decision was sent to the parties; and

(b)the parties must have an opportunity to be heard.

(9)

In determining an application or a proposal for a review under paragraphs (3), (4) or (7), the President or the Chair may give directions to be complied with before or at the hearing of the review.

(10)

If a party fails to comply with a direction made under paragraph (9), the tribunal panel may take account of that fact when determining the review or deciding whether to make an order for costs.

(11)

The President or the Chair may on the application of a party, give permission for that party to change a witness for the purpose of the review hearing.

(12)

An application made under paragraph (11), must be received by the Secretary of the Tribunal and served by the applicant on the other party, no later than 14 days before the review hearing.

(13)

The President or the Chair must give the parties the opportunity to be heard on any application made under paragraph (11).

(14)

If a decision is set aside or varied following a review under this regulation the Secretary of the Tribunal must alter the entry in the Register and must notify the parties accordingly.”

It may be observed that regulation 56 of the 2012 Regs covers both procedural grounds for set aside (regulation 56(1)(a) and (b)), substantive errors both legal and it seems factual (per regulation 56(1)(c)), and a separate and free-standing ‘interests of justice’ test. Regulation 56 may thus be contrasted with rules 45 and 49 (and 48) of theTribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.

Swansea argue the review decision was flawed on a number of bases. It argues that there was procedural unfairness in the ETW making the review decision because, inter alia,(i) an oral hearing had to be held before a decision can be reviewed, and (ii) even if an oral hearing was not required, Swansea was not given a proper and fair opportunity to address the grounds for the review. Swansea also argue that in substance the review decision under regulation 56(1)(c) was unlawful because, contrary to R(RB) v First-tier Tribunal [2010] UKUT 160 (AAC); [2010] AACR 41, the ETW set aside the appeal decision on the basis that the grounds of appeal were arguable rather than that they were bound to succeed. Further, and in any event, the two grounds of appeal on which the ETW founded to set aside its decision were not obvious or material grounds that were bound to succeed.

Swansea’s grounds of appeal raise some potentially interesting points. Its argument that the words in regulation 56(7) of the 2012 Regs - that the review may only be decided after the parties have had an opportunity to be heard - required an oral hearing to be held of the review, may face the difficulties: (a) that ‘being heard’ might not necessarily equate with making representations at an oral hearing, and (b that when an oral hearing is required under the 2012 Regs, clearer language is used to that effect: see regulation 41. On the other hand, it may be arguable that the ETW did not sufficiently enable Swansea to be heard before it made the review decision on the grounds on which it did.

As for Swansea’s reliance on the R(RB) decision, two issues might face Swansea’s arguments. First, the review power in R(RB) may be materially different because it was based on satisfaction that there was an “error of law” in the decision whereas regulation 56(1)(c) of the 2012 Regs is not so limited; though it does require satisfaction that there was an obvious and material error in the decision. Regulation 56(1)(c) might therefore arguably be more widely cast and thus the R(RB) concern about usurping the Upper Tribunal’s function have less purchase. Second, it may be arguable that the review decision was properly based on the R(RB) thesis as it begins by stating that the President had found that “there are two clear errors of law” in the decision under review. The later phrases used in the review decision that “[t]his was a material error of law” and “the Tribunal’s decision was materially flawed as it did not examine the evidence fully” might arguably back up this perspective. On the other hand, the language later used by the President of the ETW when refusing to set aside her review decision – that she remained of the view that the material errors of law that were identified in the review decision “would have a reasonable prospect of success” if the appeal decision had been appealed to the Upper Tribunal – might at be said to at least cloud matters.

However, regardless of the potential merits of Swansea’s arguments, I refuse it permission to appeal the ETW’s review decision because the appeal proceedings to which that review decision related no longer exist, the arguments would thus be being decided in a vacuum and would have no consequence for either party in terms of the child’s educational provision. If I gave permission to appeal and allowed Swansea’s appeal, setting aside the review decision would require either the Upper Tribunal or the ETW to redecide the review decision, see section 12(2)(b) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). There could no useful basis for the review decision being remade, and the lawfulness of doing so may be open to question where the appeal proceedings no longer exist. Given this, the better approach if permission to appeal was to be given would be not to set aside the review decision if the appeal were allowed: per section 12(2)(a) of the 2007 Act. However, the same result would obtain if permission was not given for the appeal.

It might be argued that even if the review decision were not to be set aside on appeal (assuming at least one of Swansea’s arguments to be a good one), the Upper Tribunal’s decision on the ‘academic’ appeal would provide a binding precedent as to the scope of regulation 56 of the 2012 Regs. That may be so but I do not consider I should take that step here. Two particular considerations have weighed against my doing so. First, I am satisfied that I would, in all likelihood (and wholly understandably given they have withdrawn their appeal to the ETW), not receive any argument from the respondent parents on Swansea’s appeal. It would be better to decide these potentially important issues in a case in both parties continue to be invested and in which they would wish (and be able) to argue the points out. Second, any review decisions of the ETW are, as I have held above, appealable, and so Swansea’s arguments, assuming for the sake of argument some or all of them are correct and the ETW continues to make review decisions contrary to such arguments, can (and very likely will) be decided in a later and contested appeal to the Upper Tribunal in circumstances where the ETW appeal proceedings are continuing.

Having refused Swansea permission to appeal on the papers alone, it has the right to apply for a reconsideration of this decision refusing permission to appeal at an oral hearing before the Upper Tribunal, usually in front of a different judge. Any such application must be made in writing and within 14 days of the date that this determination is sent out – see Tribunal Procedure (Upper Tribunal) Rules 2008, rule 22(3)-(5). I would respectfully suggest that if such an application is to be made, it will assist the judge if Swansea can explain why these proceedings are being pursued in circumstances where there are now no appeal proceedings before the ETW upon which the review decision can bite.