Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 068 (AAC)

Fecha: 15-Feb-2025

Conclusions

Conclusion

60.

In respect of Ground 1, the ETW Panel having made a substantial error of law in its Decision by naming School A in Section 2D of the IDP:

(i)

I quash that Decision insofar as School A is named in Section 2D of the IDP. Otherwise, the Decision shall stand.

(ii)

In her oral submissions, Ms Shepherd conceded that, if that were the case, then I would be bound to remit the matter to the ETW for redetermination of the issue of whether the conditions in section 48 are met requires an exercise balancing relevant considerations upon which I had not heard full submissions and which the ETW was uniquely placed to do. With some considerable regret, because of the length of time this matter has taken to resolve and X’s continuing absence from school, I accept that. I shall remit the matter to the ETW for reconsideration and redetermination of the issue of whether Section 2D of X’s IDP should name a maintained school for the purpose of securing X’s admission to that school because the conditions set out in section 48 have been met.

(iii)

This case shall immediately be referred to the President of the ETW with a request that she gives directions on that issue so that the re-hearing of Mr & Mrs X’s appeal on this issue can be expedited. That re-hearing should take place before a differently constituted panel.

61.

In respect of Ground 2, for the reasons given above, I refuse permission to appeal.

Coda

62.

I understand that this is the first case to have been brought under the new 2018 Act regime for ALP in Wales. I have considerable sympathy for the ETW Panel, who were the first to grapple with the challenges of the new scheme.

63.

The case illustrates the need, when dealing with legislation of the Senedd, to avoid assumptions that the devolved scheme reflects, in any particular way, an earlier scheme found in Westminster legislation. The policy drivers may be different – sometimes, very different – and considerable scrutiny of the words used by the Senedd, without any preconceptions based on what went before, may be required to ascertain the true construction of the legislation and thus the intention of the legislature.

The Rt Hon Sir Gary Hickinbottom

President of Welsh Tribunals

Sitting as a Judge of the Upper Tribunal

Authorised for issue on 15 February 2025