K, R (on the application of) v London Borough of Wandsworth

On a statutory appeal from a Special Educational Needs and Disability Tribunal, the reviewing court may consider witness statements or other material supplementing the tribunal’s notes where appropriate. The material may clarify what evidence was available, and agreed material may supplement or replace inaccurate notes. Where the additional evidence reveals conflicting recollections, the court should generally avoid preferring one account without a clear reason, such as consistent contemporaneous notes. A tribunal’s material misstatement of important evidence justifies quashing its decision where the court cannot conclude that the result would inevitably have been the same.

The claimant appealed against a decision of the Special Educational Needs and Disability Tribunal dated 24 July 2003. The Tribunal had dismissed her appeal concerning the proposed placement of her daughter, who had profound and multiple learning difficulties, at a maintained special school. The dispute concerned access to suitable multi-sensory facilities.

The claimant alleged that the Tribunal had misunderstood evidence given by the proposed school’s head teacher. The central issues were what material the High Court could consider when reviewing the Tribunal’s findings, whether the Tribunal had misstated the evidence, and whether that error could have affected the outcome.

1. Appeal allowed. The Tribunal’s decision was quashed and the matter remitted for redetermination by a fresh Tribunal. The defendant did not resist that order or the claimant’s costs.
2. Chairman’s notes of evidence are the starting point on an appeal because there is ordinarily no transcript. They are not necessarily the finishing point. The court may consider witness statements and similar material where it assists in determining what evidential basis existed for the impugned decision.
3. Such material may, in appropriate circumstances, amount to an agreed supplementation of incomplete notes. If the parties agree that the notes are erroneous, it may even provide a substitute record. Where the material contains conflicting recollections, however, the court should ordinarily avoid preferring one account unless there is a clear reason, such as consistent contemporaneous notes.
4. The approach in S v Special Educational Needs Tribunal [1995] 1 WLR 1627 was consistent with this restricted use of additional evidence. The guidance in Oxfordshire County Council v GB and others [2001] EWCA 1358 did not require the court to disregard such evidence, but confirmed that parties could not submit evidence at will and that fresh evidence had a restricted ambit.
5. The Tribunal attributed to the head teacher an opinion that the proposed school was an appropriate placement. The Chairman’s notes did not provide a proper evidential basis for that attribution and one passage pointed unequivocally in the opposite direction. Although other evidence supported the Tribunal’s conclusion, the court could not say that the result would inevitably have been the same without the apparent misunderstanding. The error was therefore material.

• Special Educational Needs and Disability Tribunal: On 24 July 2003, dismissed the claimant’s appeal concerning the statement of special educational needs and proposed placement.
• High Court (Administrative Court): Allowed the statutory appeal, quashed the Tribunal’s decision and remitted the matter for redetermination by a fresh Tribunal.