Ali v Kirklees Metropolitan Council & Anor

Where relevant evidence was omitted from an administrative tribunal, the materiality question is whether there is a realistic possibility that the evidence could have affected the decision. The court should not ask whether the evidence probably or likely would have done so, nor rely upon the decision-maker’s retrospective prediction.

The answer may depend upon whether the evidence was legally relevant or admissible, or whether it was factually incapable of disturbing the weight of the other evidence. Where the omission caused unfairness or excluded relevant material, relief will be withheld only exceptionally. An omission does not justify relief where the evidence was incapable of materially bearing upon the outcome.

The parents of a severely disabled child appealed against a Special Educational Needs Tribunal’s approval of the local education authority’s choice of Highfields School. The tribunal had relied upon current evidence about the school’s safety, including a favourable Ofsted report, without knowing of a wheelchair accident involving another child there in 1993.

Turner J dismissed the parents’ statutory appeal under section 11 of the Tribunals and Inquiries Act. The issue before the Court of Appeal was whether there was a realistic possibility that knowledge of the earlier accident could have altered the tribunal’s conclusion.

1. Appeal dismissed unanimously. Sedley LJ, with whom Arden LJ and Schiemann LJ agreed as to the disposition and broad grounds, held that the omitted information was incapable in the circumstances of materially affecting the tribunal’s decision.

2. The governing question was whether the omitted evidence could have made any difference, or whether there was a realistic possibility that it could have altered the result. It was not whether the tribunal was likely to have been influenced. Nor was the question determined by the tribunal chairman’s retrospective view of what the tribunal would have decided.

3. Materiality may turn on law, because evidence may be legally irrelevant or inadmissible, or on fact, because it may be inconsequential or incapable of disturbing the weight of the other evidence. If evidence was relevant, or ignorance of it caused unfairness, relief would be denied only exceptionally, consistently with R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344.

4. The 1993 accident bore some superficial relevance to safety, but it was remote in time. The tribunal had compelling and current evidence about Highfields School, including the headteacher’s evidence, staffing and therapeutic resources, and the comprehensive 1999 Ofsted findings. It was not realistic to think that the historical accident or its disputed aftermath could have steered the tribunal towards a different conclusion.

5. Arden LJ distinguished W v Special Educational Needs Tribunal, Times 12 December 2000. That case concerned omitted, up-to-date information about an establishment’s facilities and resources. The evidence here concerned an old accident which could provide only marginal assistance on the school’s current ability to care safely for the child.

6. Schiemann LJ added that disclosure might have represented good and transparent administrative practice without making the information relevant to the tribunal’s legal question. All three judges regarded the chairman’s prediction of the outcome as inappropriate. Schiemann LJ nevertheless reserved his position on whether retrospective evidence from a tribunal could never be admissible.

The appeal was dismissed with costs, payable by the Legal Services Commission and to be assessed. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The omitted evidence was incapable of materially affecting the tribunal’s conclusion. Permission to appeal to the House of Lords was refused.
2. Queen’s Bench Division: Turner J dismissed the statutory appeal on 23 May 2000, holding that the 1993 accident was not relevant to the decision which the tribunal had to make.
3. Special Educational Needs Tribunal: On 22 December 1999, the tribunal upheld the local education authority’s selection of Highfields School because both proposed schools were suitable but Highfields was substantially less expensive.