L, R (on the application of) v Ms L and Mr H

A tribunal decision may be challenged for a material mistake of fact causing unfairness. The mistake must concern an existing fact or the availability of evidence, be objectively verifiable and uncontentious, be made without responsibility by the appellant, and materially influence the reasoning. The reviewing court must not reconstruct the decision or decide what weight the tribunal would have attached to the corrected fact. Where it cannot be sure that the tribunal would have reached the same result, the decision should be quashed. A tribunal may consider the practical suitability and continuity of an educational placement, including a proposed school closure and the quality of the relationship between the parties, provided those matters are relevant and supported by the evidence.

The London Borough of Wandsworth appealed on points of law against a decision of the Special Educational Needs and Disability Tribunal requiring the statement for a child with autistic spectrum disorder to name an independent specialist school rather than a maintained school. The tribunal treated the maintained school’s proposed closure as certain, although the statutory closure process remained incomplete and the parties had proceeded on the basis that closure was only proposed.

The child’s mother brought connected judicial review proceedings challenging the authority’s refusal to amend the statement pending the appeal. The central issue was whether the tribunal’s mistake about the status of the proposed closure was material to its decision.

1. Appeal allowed. The tribunal’s decision was quashed and the connected judicial review claim was dismissed.
2. The governing principles were stated in E v Secretary of State for the Home Department [2004] QB 1044. A mistake of fact may constitute an error of law where it concerns an existing, objectively verifiable and uncontentious fact, the appellant was not responsible for it, and it played a material part in the tribunal’s reasoning.
3. The tribunal had repeatedly stated that the maintained school would close in 2007, although closure was only proposed. The difference between a definite closure and a possible or likely closure could materially affect the weight given to that factor. The court could not determine what weight the tribunal would have assigned to the corrected position.
4. The tribunal’s other findings did not make the error immaterial. Its conclusion that the school was unsuitable because of inconsistency of teaching methods could properly be read as a conclusion that the methods used there were unsuitable for the child. The finding that the school was not set up for one-to-one teaching was supported by the evidence, although the school’s ability and willingness to provide such teaching reduced the weight of that factor. The court could not be sure that the tribunal would have reached the same result without relying on the erroneous assumption about closure.
5. The challenge to the refusal to call an additional witness failed. The tribunal had a broad discretion under regulation 34 of the Special Educational Needs Tribunal Regulations 2001. The application had been made to call the officer as a third witness, rather than to give evidence on behalf of the authority under the separate wording of the regulation, and the proposed evidence would have added nothing material to the documented position. The point referred to in H v Gloucestershire County Council [2000] ELR 357 therefore did not require decision.
6. The tribunal was also entitled to take into account the strained relationship between the parents and the authority and to give that factor some weight. Following quashing, the existing statement remained operative pending reconsideration by the tribunal. The court had no power to determine the placement or order expedition of the rehearing.

• Special Educational Needs and Disability Tribunal: ordered amendment of the child’s statement under Education Act 1996 section 324 to name the independent specialist school.
• High Court (Administrative Court): allowed the authority’s appeal on the material mistake of fact, quashed the tribunal’s decision, and dismissed the connected judicial review claim.