W, R (on the application of) v Sendist

An irregularity in a tribunal’s procedure does not automatically invalidate the proceedings. The court must examine whether it caused unfairness and whether that unfairness justifies remission. Relief may be refused where the material could not realistically have affected the result. A specialist tribunal may use its expertise, but it must give sufficient reasons on substantial issues, explain the rejection of significant expert evidence where appropriate, and allow parties a fair opportunity to address matters based on expertise. Its decision must be read as a whole and in a commonsense way.

The claimant, a child with profound hearing loss, appealed against amendments to his statement of special educational needs. His parents sought placement at a non-maintained specialist school rather than a local mainstream school. The Special Educational Needs and Disability Tribunal admitted late written evidence under the wrong paragraph of Rule 33 of the Special Educational Needs Tribunal Regulations 2001 and upheld the local placement.

The judicial review appeal under section 11 of the Tribunals and Inquiries Act 1992 alleged procedural unfairness, irrational assessment of acoustic conditions and educational progress, inadequate reasons, and improper reliance on the tribunal’s own expertise. The issue was whether any procedural or decisional defect made the hearing unfair so that the case required remission.

1. Disposition. The appeal was rejected. The respondents’ costs were summarily assessed at £5,577.73.
2. Late evidence. The tribunal had applied Rule 33(2), although the evidence did not satisfy the five-working-day requirement and should have been considered under Rule 33(3). That was an irregularity, but Rule 49 did not make the proceedings void. The court had to determine whether the irregularity caused unfairness sufficient to justify remission.
3. The late BSL assessment and acoustic report should preferably have been available earlier. However, the evidence before the court did not show that further opportunity would have altered the result. The acoustic conditions had subsequently improved, and there was no evidence undermining the BSL findings. Relief was therefore refused on this ground.
4. Merits and adequacy of provision. Building Bulletins were guidance only. The tribunal’s task was to decide whether the provision for the child was adequate, not whether the school complied with a particular bulletin. Acoustic conditions were one relevant consideration. The tribunal was entitled to conclude that reasonable support and specialist services gave the child adequate access to the curriculum and that he had made adequate progress.
5. Reasons and expertise. Rule 36(2) required summary reasons. The tribunal had to address substantial points, explain the basis of its decision, and not merely recite evidence. It could use specialist expertise, but should identify rejection of significant expert evidence and give parties an opportunity to comment on expertise-based conclusions. Read as a whole and commonsensically, the tribunal’s reasons were sufficient. Even if its comment based on panel knowledge was procedurally defective, it had no real effect on the result.

• Special Educational Needs and Disability Tribunal: admitted late evidence, amended the statement, and upheld the decision that the child’s needs could be met at the local mainstream school.
• High Court (Administrative Court): dismissed the appeal under section 11 of the Tribunals and Inquiries Act 1992 and ordered costs.