F & Anor v Kent County Council & Anor

Where an appeal raises a potentially important issue about the court’s use of private or preliminary notes made by a tribunal chairman, the court should not determine the issue without giving the tribunal an opportunity to make representations. If the issue cannot fairly be resolved at the hearing, the court may adjourn the appeal and give directions for submissions. The disclosure of such notes does not, without more, establish that their use was intended.

Mr and Mrs F appealed under section 11 of the Tribunals and Inquiries Act 1992 against a determination of the Special Educational Needs and Disability Tribunal concerning the education of their son. They challenged the Tribunal’s treatment of expert evidence, its reasons, its approach to substantive issues and the specificity of amendments to the statement of special educational needs.

Shortly before the hearing, notes prepared by the Tribunal chairman before the hearing began were disclosed. The appellants wished to rely on those notes. The court had to decide whether, and in what circumstances, it could inspect and use them.

1. The appeal was adjourned to 20 December. The court was not prepared to determine the status or admissibility of preliminary private notes without allowing the Special Educational Needs and Disability Tribunal an opportunity to consider the issue and make representations.
2. The disclosure of the notes did not establish that their disclosure had been intentional. The first seven pages appeared to record preparation or preliminary matters before the hearing, while the hearing notes began later.
3. The judge identified a possible issue of principle concerning the court’s entitlement to inspect such material. The only authority found in the limited time available was Tesco Stores v Seabridge [1988] Crim LR 517, where the High Court would not allow an appellant to compare a draft case stated with the final signed version. That authority was treated as relevant background to the issue, rather than as resolving the present question.
4. The court directed that the judgment be sent to the Tribunal and that representations on whether the court was entitled, or should, inspect the preliminary notes be served by 4 pm on 13 December. Costs of the hearing were reserved.

• Special Educational Needs and Disability Tribunal: determination issued on 27 July 2004 concerning the education of the appellants’ son.
• High Court (Administrative Court): appeal under section 11 of the Tribunals and Inquiries Act 1992 was adjourned for representations concerning preliminary notes made by the Tribunal chairman.