JF, R (on the application of) v London Borough of Croydon & Anor

A public education authority appearing before a special educational needs tribunal must disclose all relevant information, including matters adverse to its proposed placement. The question on judicial review is whether the undisclosed information could realistically have made a difference to the tribunal’s decision, not whether it probably would have done so. Where the information is relevant or its absence creates unfairness, relief should be refused only exceptionally. In assessing that question, the court must examine the tribunal’s reasoning and the importance of the omitted material to the evidence on the determining issue. School registration or accreditation is not conclusive, but it is a relevant starting point when assessing suitability. A decision affected by such non-disclosure should be quashed and remitted for a fresh hearing.

The claimant appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal concerning the appropriate school placement for a child with Asperger’s Syndrome.

The Tribunal had accepted the local education authority’s proposed placement at Brantridge School rather than the more expensive school sought by the parents. After the hearing, evidence showed that Brantridge was registered as catering for emotional and behavioural difficulties and was not registered or accredited with the National Autistic Society, contrary to the impression created before the Tribunal. The issue was whether that information could realistically have altered the Tribunal’s conclusion.

1. Appeal allowed. The Tribunal’s decision was quashed and the claimant’s appeal was remitted for a fresh hearing. Whether the Tribunal was differently constituted was left to its discretion.
2. A local education authority is a public body assisting the Tribunal. Although the proceedings may have an adversarial aspect, the authority must make all relevant information available, including information that may assist the parents’ case. It cannot answer a failure to disclose by saying that the parents could have discovered the information themselves. This duty applied particularly because the authority’s evidence was central to the determining issue.
3. The applicable test was that stated in A v Kirklees Metropolitan Council and Dorsey [2001] EWCA Civ 582: the question was whether the omitted information could have made a difference, or whether there was a realistic possibility that it could have altered the Tribunal’s conclusion. The court was not required to decide whether the Tribunal probably would have reached a different result. Where the information was relevant, or ignorance of it caused unfairness, relief should be denied only exceptionally.
4. The court had to read the Tribunal’s decision in a straightforward and commonsense way and examine the detail of its reasoning. Mr White was the critical witness on the suitability of Brantridge, and the Tribunal treated his evidence as powerful and persuasive while accepting much of it on trust. The undisclosed registration information could therefore have affected the Tribunal’s assessment of his credibility and the weight of his evidence.
5. Registration with the Department and registration or accreditation with the National Autistic Society were not conclusive of suitability. They were, however, relevant considerations and an appropriate starting point. The Tribunal had assessed the detailed evidence against the mistaken background that Brantridge was registered with the Society and was not a school for emotional and behavioural difficulties. There was consequently a realistic possibility that the omitted information could have altered the result.

1. Special Educational Needs and Disability Tribunal: decided on 27 February 2006, following a hearing on 21 February 2006, that Brantridge School could provide the provision required and that placement at the Forum School would be an unreasonable use of public expenditure.
2. High Court (Administrative Court): allowed the appeal under section 11 of the Tribunals and Inquiries Act 1992 and remitted the matter to the Tribunal for a fresh hearing.