[2024] UKUT 439 (AAC)

The origin of Swansea City Council (“Swansea”) wishing to challenge the ETW’s review decision starts with the ETW’s decision of 13 November 2023 on the parents’ appeal to that tribunal. It was an appeal against the content of a statement of special educational needs maintained by Swansea in respect of the parents’ son. As that appeal has since been withdrawn, in October of this year, I need say no more about that appeal, save insofar as it informs the ETW’s review decision.

The parents’ wished to challenge the ETW’s decision of 13 November 2023 and applied to the ETW for permission to appeal. By decisions dated 22 March 2024 and 5 April 2024 the ETW dealt with that application for permission to appeal. It did so without holding any further hearing. In addressing the application for permission to appeal the ETW first considered, pursuant to regulation 58 of Special Educational Needs Tribunal for Wales Regulations 2012 (“the 2012 Regs”) whether to review its decision of 13 November 2023 under regulation 56 of the 2012 Regs. The ETW reviewed the decision, set the decision aside and ordered a fresh hearing of the appeal before a differently constituted ETW. At that stage, the ETW informed the parties that its decision on review could only be challenged by way of judicial review.

Swansea considered the review decision to have been made on a wrong legal basis. It therefore challenged the review decision by way of a claim for judicial review, having previously sent the ETW and the parents a pre-action protocol letter. The judicial review application was opposed by the ETW in its acknowledgement of service on the basis that Swansea had a right of appeal against the review decision and so had not exhausted its alternative remedies before bringing the judicial review proceedings. Reliance was placed by the ETW in this regard on the Upper Tribunal’s decision in AB v Newport City Council [2022] UKUT 190 (AAC).

As a result of the ETW’s defence to the judicial review claim, Swansea lodged a protective application for permission to appeal with the Upper Tribunal against the review decision. This is why there are two sets of proceedings concerning the same review decision.

The ETW’s acknowledgement of service did not address the substance of Swansea’s arguments for why the review decision was wrong in law. Those arguments apply in both sets of proceedings. In short order, the arguments are that the ETW erred in law because: (i) the review decision was in breach of regulation 56 of the 2012 Regs and/or was otherwise procedurally unfair; and (2) the review decision was in breach of regulation 56 and/or based on a misdirection in law and/or not one that the ETW could reasonably have taken. Swansea argues in particular that:

“one of the errors of law is straightforward and can be seen clearly: the tribunal said it reviewed and set aside the original decision because it had identified two errors of law which “if appealed to the Upper Tribunal would have a reasonable prospect of success”. Both as matter of the wording of regulation 56(1)(c) and the relevant case law, this is clearly wrong and only entitled the tribunal to grant permission to appeal, not to review and set aside the original decision.”

I will need to return to these arguments, once I have dealt with the jurisdiction issue .

As I have indicated above, even assuming the ETW acted lawfully (or unlawfully) in its review decision of 22 March and 5 April 2024, the parents’ underlying appeal to the ETW has been withdrawn and there are therefore no ETW appeal proceedings for the review decision to continue to bite on.

The judicial review was transferred to the Upper Tribunal by His Honour Judge Lambert, sitting as a Judge of the Administrative Court, on 15 August 2024. Those judicial review proceedings have the Upper Tribunal file reference UA-2024-001442-JR.

I should add for completeness that before the judicial review was transferred, on 8 August 2024 in the permission to appeal proceedings (which have the Upper Tribunal file reference UA-2024-000917-HSW), I gave directions which included the following:

“1.

This is an application for permission to appeal decisions made by the Educational Tribunal for Wales on 22 March and 5 April to review and set aside its earlier decision of 13 November 2023 which had been made on an appeal brought by ….“the parents” on behalf of their son…..

2.

The sole issue with which these directions are concerned is whether the Upper Tribunal’s appellate jurisdiction extends to challenges against review decisions made by the Education Tribunal for Wales.

3.

It appears to be the view of the Education Tribunal for Wales, in the related judicial review proceedings, that the decision in AB v Newport City Council [2022] UKUT 190 (AAC) applies with like effect to section 81 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018. That is an issue which needs to be decided on this application for permission to appeal.

4.

It is trite law that parties cannot confer a jurisdiction on the Upper Tribunal which in law it does not have. If the Upper Tribunal’s appellate jurisdiction under section 81 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 does not extend to review decisions of Education Tribunal for Wales, rule 8(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 would require me to strike these proceedings out and refer them instead to the Administrative Court. Moreover, the determination of whether the Upper Tribunal has this jurisdiction (or not) may at least arguably answer whether the High Court ought to exercise its judicial review jurisdiction.

5.

The directions below require written submissions from the parties on whether the Upper Tribunal has jurisdiction under section 81 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 to determine appeals against review decisions of the Education Tribunal for Wales. Reasons should be given for why it is argued the Upper Tribunal has or does not have that jurisdiction.

6.

The directions also invite the Education Tribunal for Wales to consider making written representations to the Upper Tribunal on the same issue of jurisdiction.

7.

It would assist if the parties could, in their submissions on the Upper Tribunal’s jurisdiction, update the Upper Tribunal on where the judicial review proceedings have reached and, in particular, whether any decision has been made about transferring those proceedings to the Upper Tribunal.

8.

It would further assist if the parents in their written submission could set out whether they agree (or not) with Swansea City Council that the Education Tribunal for Wales erred in law in its review decision(s) of 22 March and 5 April 2024. It is to be observed in this respect that in its application for permission to appeal to the Upper Tribunal Swansea City Council say that there has been no opposition (in the judicial review proceedings) by the parents to the Council’s arguments that the Education Tribunal for Wales did err in law in making its review decision(s).”

The parents have not filed any submissions in response to these directions.

Both Swansea and the ETW have filed submissions in response the above directions. I will take account of those submissions, as necessary, in my consideration of the arguments in these proceedings.

Swansea is content to leave the jurisdiction issue to the Upper Tribunal to determine. It has, however, made what it describes as some brief points on jurisdiction. It observes that the wording of the previous and current statutory provisions do not appear to be materially different. The council continues:

“17.

The case of AB v Newport City Council [2022] UKUT 190 (AAC) considered this issue under the previous statutory regime and held that there was a right of appeal to the Upper Tribunal against review decisions of the tribunal. As noted above, the relevant wording in the new statutory regime (whether or not it applies here) does not appear to be materially different. However, that case had a material factual difference in that the review decision under challenge there left the original decision untouched. This may explain the comments made by UTJ Mitchell at paragraph 55 and 65 which are not understood, or at least do not apply in a situation like this where a review decision sets aside the original decision and it is obvious that a party deprived of a decision in this way may want to challenge that.

18.

The AB case sets out the arguments for both sides and the UT’s reasoning for its conclusion. In summary, the judge appeared to accept at [52] that on the face of it, section 336ZB/section 81 ‘imports’ the relevant provisions in the 2007 Act and so “the range of appealable decisions should be similarly restricted”. This may be why the tribunal originally formed the view that the review decision could only be challenged by way of judicial review, and there is a strong argument to be made that this straightforward reading is the correct one. However, the judge then went on to say that there are “difficulties with that construction” which were then set out [53-57], before explaining his preference for the contrary submissions at [58-60], although it is submitted that that reasoning is not always easy to follow.

19.

To the extent practical considerations are relevant (and the observation in AB at [57] in this regard is noted), the advantage of such decisions being appealable to the Upper Tribunal like any other is simplicity, both because all appeals would go to the UT with no separate category of excluded decisions, and also because generally appeals to the Upper Tribunal are more straightforward and cheaper than claims for judicial review. On the other hand, the advantage of such challenges proceeding by way of judicial review is that the position in Wales would be the same as the position in England.”

The ETW took up my invitation to provide its observations on the jurisdiction issue. Those observations read as follows:

“The review decision was made by Judge McConnell, President of the Education Tribunal Wales, in the judicial exercise of the functions of the Tribunal. We are instructed to submit the observations within this correspondence for consideration by the Upper Tribunal within the appeal proceedings, on behalf of the Tribunal. The observations are limited to the issue of the appellate jurisdiction of the Upper Tribunal in accordance with the invitation of the Upper Tribunal. They are made with a view to assisting the Upper Tribunal to determine the jurisdictional issue before it, and in turn the administration of justice generally. In this regard we refer to the case of SG v Denbighshire County Council and MB [2018] UKUT 158 (AAC), a copy of which is enclosed for ease of reference. We confirm that Judge McConnell is content with this approach.

We trust that the Tribunal will be afforded an opportunity to make submissions on costs, and upon any other matters of case management arising in the proceedings to which it is a party, in due course.

It is understood that the Upper Tribunal has had sight of the Acknowledgment of Service and accompanying summary of grounds for contesting the claim which were filed and served on behalf of the Tribunal in the judicial review proceedings, and refer to the case of AB v Newport City Council [2022] UKUT 190 (AAC) (‘the AB case’).

In the AB case, Judge Mitchell of the Upper Tribunal determined that there is a right of appeal to the Upper Tribunal against a review decision of the Special Educational Needs Tribunal for Wales under section 336ZB of the Education Act 1996 (‘EA 1996’).

The Special Education Needs for Tribunal Wales was renamed as the Education Tribunal for Wales by section 91 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 in September 2021. It continues (as the Education Tribunal for Wales) to make decisions on appeals about statements of special educational needs pursuant to the special educational needs legal framework within Part IV of the Education Act 1996 and the Special Educational Needs Tribunal for Wales Regulations 2012 (‘the 2012 regulations’).

The review decision was made by the Tribunal in exercise of its powers under the special educational needs legal framework, and not under the additional learning needs regime within the Additional Learning Needs and Education Tribunal (Wales) Act 2018 and the Additional Learning Needs (Wales) Regulations 2021. This is apparent from the decision itself which refers to the 2012 regulations, and from the subsequent Order of Judge McConnell dated 5th April 2024 which references the 2012 regulations and states under the heading ‘Further directions’:

“Any decision made in this appeal, whether at a rehearing as ordered or after an unsuccessful application for Judicial Review to the Upper Tribunal, will be time limited as it relates to [the child’s] Statement of SEN. This is because the LA must transfer [the child] from having a Statement of SEN under the “old” legal framework to the “new” Additional Learning Needs statutory framework. The requirement to do this is set out in the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (commencement no. 8 and Transitional and Saving Provisions) Order 2022 and must be done at the latest by the 30 August 2025. Once the LA have finished this process and made a decision then a further right of appeal to the Tribunal will be triggered…..”

The appellate jurisdiction of the Upper Tribunal in this case is accordingly governed by the Special Educational Needs (‘SEN’) legal framework within Chapter 1 of Part IV of the Education Act 1996, and specifically section 336ZB thereof.

It is a matter for the Upper Tribunal to determine whether the precedent in the AB case applies in this case.

We understand that the Tribunal has today received notice from the parents’ representative that the appeal against the original Statement of Special Educational Needs has been withdrawn. There remains no outstanding matter to be considered or decided by the Tribunal.”

These observations essentially mirror, as I see it, that which the ETW has said about jurisdiction in the judicial review proceedings. The ETW there argues (in its summary defence):

In my judgement, the decision in AB applies in this case and is an authority which I should follow. I explain these two points in turn.

The decision in SB was about challenges to review decisions by the Special Educational Needs Tribunal for Wales. However, that difference from this case is cosmetic only, it is not a difference of legal substance. That is made clear by the introduction to the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (“the 2018 Act”) which states that it is an Act, “to reform the law on education and training for children and young people with additional learning needs; and to continue the Special Educational Needs Tribunal for Wales and to rename it the Education Tribunal for Wales” (the underlining is mine and has been added for emphasis). All the 2018 Act is therefore doing in this respect is rebadging the Special Educational Needs Tribunal for Wales with a different name. This general starting point is confirmed by section 1(10) of the 2018 Act which states that:

“Part 3 (sections 91 to 94) continues the Special Educational Needs Tribunal for Wales and renames it the Education Tribunal for Wales.”

This is then underscored by section 91(1) of the 2018 Act which sets out that the “Special Educational Needs Tribunal for Wales is to continue and is renamed the Education Tribunal for Wales”.

On the face of it, and without more, section 336ZB of the Education Act 1996 would therefore continue to apply, and with it the analysis in AB.

However, insofar as section 96 and paragraph 4(9) of Schedule 1 to the 2018 Act has repealed Chapter 1 in Part 4 of the Education Act 1996, and so has repealed section 336ZB, the relevant governing provision is section 81 of the 2018 Act, the terms of which are materially identical to section 336ZB of the Education Act 1996. In particular, the terms of section 81(3) of the 2018 Act mirror the wording in section 336ZB(3) of the Education Act 1996. It was not argued before me that there are any contrary statutory indicators in the 2018 Act pointing against section 81(3) having the same legal effect as that found in respect of section 336ZB(3) of the Education Act 1996 in AB, nor can I identify any.

Accordingly, whichever Act applied to the parents’ then appeal to the ETW, in my judgement the analysis in AB applies and confers a right of appeal to the Upper Tribunal (if permission is given) against a review decision made by the ETW.

It is not argued by anyone in either sets of the proceedings before me that AB was wrongly decided or should not be followed by me. It cannot be distinguished, as Swansea might be suggesting, by the different factual circumstance in play in AB. The critical analysis of Judge Mitchell in paragraphs [51]-[61] of AB did not turn on the particular review decision in issue before him.

The decision in AB is a carefully constructed one and was arrived at after hearing contested argument as to the legal effect of section 336ZB(3) of the Education Act 1996 (an advantage which I have not had). Nor, as I have said, is anyone before me arguing that AB is wrong. In these circumstances, and in the interests of comity and certainty, I consider I should follow AB.

The consequence of all of the above is that Swansea’s claim for judicial review of the ETW’s review decision must be dismissed because the correct route of challenge to that decision is by way of statutory appeal. That appeal route provides Swansea with the alternative remedy which means the judicial review is not the appropriate route to challenge that decision. Parliament has provided a right of statutory appeal to the Upper Tribunal against the review decision, and given this the judicial review claim should be dismissed.