London Borough of Hammersmith & Fulham v First-Tier Tribunal (Health, Education and Social Care Chamber) & Ors

A specialist tribunal’s procedural decision will be quashed for unfairness only where the alleged defect amounts to an error of law and establishes substantial procedural unfairness. Case-management decisions, including adjournments, listing, witness limits and working documents, fall within the tribunal’s procedural discretion. Failure to consult a party before an adjournment may constitute poor practice, but does not itself invalidate the proceedings. The court must assess whether the tribunal had a reasonable and rational basis for its decision and whether unfairness has actually been established. A tribunal may refuse additional witnesses where the statutory limit has not been exceeded or permission has not been sought, and may refuse amendments where exceptional circumstances are absent.

The Council challenged a decision of the First-Tier Tribunal allowing the parents’ appeal against a statement of special educational needs concerning their son. The appeal concerned the proposed transfer from Blossom House School to Woodlane High School and alleged procedural unfairness in the Tribunal’s conduct of the proceedings.

The complaints concerned two adjournments, the listing of the resumed hearing, refusal of additional witnesses, restrictions on evidence by the Council’s representative, access for assessments, cross-examination, use of a working document, refusal to amend the statement of case and criticism of the Council’s lawyer. The issue was whether those matters, individually or cumulatively, constituted an error of law sufficient to vitiate the Tribunal’s decision.

1. The appeal was dismissed. The Council had not established procedural unfairness or a lack of even-handedness sufficient to amount to an error of law under Tribunal and Enquiries Act 1992, section 11(1).
2. The appropriate threshold for intervention was the very clear unfairness identified in H v Gloucestershire County Council [2000] ELR 357. The Tribunal had reasonable and rational grounds for both adjournments. Although good case-management practice ordinarily required the Council to be consulted about the second adjournment, the failure to consult did not render the proceedings unfair where there was a compelling reason for the adjournment.
3. The Tribunal acted within its procedural discretion in listing the resumed hearing for 4 July 2008. The Council had been given a reasonable opportunity to provide dates to avoid but had posted its response late. The reason why the rehearing became necessary did not alter the listing decision.
4. Under regulations 34 and 34(1) of the Special Educational Needs Tribunal Regulations 2001, the Tribunal was entitled to refuse two further Council witnesses after the Council’s witnesses had substantially given their evidence and no proper application for additional witnesses had been made. The Council’s principal education psychologist had not been prevented from giving evidence; the Council had waived that course as part of its application to change its representative under regulation 14.
5. The Tribunal was entitled to regard further assessments as unnecessary, given the existing evidence and the Council’s failure to seek an adjournment for that purpose. The caution in John v Rees [1970] Ch 345 did not require a different result. The Tribunal also acted rationally in using the latest working document and refusing an amendment where the circumstances were not exceptional under regulation 13(3).

The Council brought a statutory appeal to the High Court against the decision of the First-Tier Tribunal (Health, Education and Social Care Chamber), which had allowed the parents’ appeal concerning their son’s statement of special educational needs. The High Court dismissed the appeal.