Way v Poole Borough Council & Anor

An appeal from a special educational needs tribunal is confined to questions of law and ordinarily reviews the decision under appeal. A party cannot introduce for the first time an evidential challenge which was not raised below, particularly where the evidential record is uncertain. Where remission is ordered to cure a substantive error, rehearing of the affected issue is generally required and current evidence will usually be relevant. But where remission merely corrects an oversight so that the formal order reflects findings already made, the tribunal need not rehear the case. A practice direction requiring decisions on material current at the tribunal hearing does not require a rehearing after a limited remission.

The appellant’s child had severe hyperkinetic disorder and autistic-spectrum features. Following an appeal by his mother, SENDIST amended parts 2 and 4 of his statement of special educational needs, maintained part 3, and named Longspee Special School rather than a residential placement. The High Court rejected most grounds of appeal but held that part 3 lacked sufficient specificity. It remitted the matter solely for amendments to reflect the tribunal’s findings. The appellant challenged that limited remission, arguing that the tribunal’s factual conclusion lacked evidential support and that parts 3 and 4 should be reheard on current evidence.

1. Appeal dismissed. Lord Justice Wilson and Mr Justice Holman agreed with the judgment of Lord Justice Dyson.
2. An appeal from SENDIST lay only on a point of law under section 11 of the Tribunal and Enquiries Act 1992. The appellate court reviewed the decision under appeal. The challenge that there was insufficient evidence to support the tribunal’s finding about Longspee was a wholly new point, dependent on examination of evidence adduced below. It could not be entertained for the first time in the Court of Appeal, especially when there was uncertainty about what evidence had been before the tribunal. In any event, there was no reason to conclude that the tribunal had erred.
3. Where an error of law goes to the tribunal’s substantive decision, rehearing of at least the affected part will generally be required. A substantive rehearing will usually consider evidence showing the position current at the rehearing. However, no general principle requires a full rehearing whenever a case is remitted. The scope of remission depends on the error identified and the purpose of the order.
4. The tribunal’s reasoned decision contained findings which should have been incorporated into the formal statement, but the attached order omitted the necessary amendments to part 3 by oversight. The omission was analogous to a slip in a court order and justified a limited remission to correct the statement. It did not justify a rehearing de novo. The judge’s comparison with cases involving a quashed placement decision, such as JR & AR v Hampshire County Council and SEND Tribunal [2006] EWHC 588 (Admin), or inadequate reasons, such as VK v Norfolk County Council and the SENDIST [2005] ELR 342, did not alter that conclusion.
5. The practice direction concerning whether a tribunal should consider material current at the date of hearing governed the conduct of an appeal; it did not determine whether an appeal had to be reheard after a drafting correction. The judge therefore acted lawfully in limiting the remission. The order was application refused.

1. Court of Appeal (Civil Division): Appeal dismissed. [2007] EWCA Civ 1145.
2. High Court of Justice, Queen’s Bench Division: On 31 July 2007, the Deputy High Court Judge upheld the challenge to the lack of specificity in part 3, but rejected the other grounds and remitted the matter solely for corrective amendments.
3. SENDIST: On 30 March 2007, the tribunal amended parts 2 and 4 of the statement, left part 3 unchanged, and named Longspee Special School.