Chapple v Suffolk County Council

Where a public authority knew or should have known before an appellate hearing that it was failing to provide provision required by a special educational needs statement, that conduct and its practical consequences may justify an order for all costs. The court need not divide costs narrowly between issues where non-disclosure may have altered the course of the proceedings and delayed urgently needed provision.

The Upper Tribunal’s developing role may permit flexible arrangements, including the transfer of judicial review issues from the Administrative Court. That procedural question was left for determination in an appropriate case.

The appellant’s son had complex communication needs. The First-tier Tribunal amended his statement of special educational needs but named Thomas Wolsey School. The appellant sought St Mary’s School instead.

The First-tier Tribunal rejected part of the supporting evidence and named Thomas Wolsey School. The Upper Tribunal, presided over by HHJ David Pearl, dismissed the appeal and refused to admit further evidence concerning the school’s ability to provide the required support.

Before the Court of Appeal, the authority conceded that it knew or should have known that it was not complying with the statement. It also conceded that St Mary’s School was appropriate and agreed to fund the required provision. The remaining dispute concerned the costs of the Upper Tribunal proceedings and the procedural means by which the issues might have been addressed.

1. Disposition and costs. The appeal was allowed with consent. The authority agreed to fund the child’s place and support at St Mary’s School from 13 June 2011, with an appropriate amendment to the statement of special educational needs. The authority was ordered to pay the costs of both the Court of Appeal and the Upper Tribunal, subject to detailed assessment unless agreed.
2. Costs of the Upper Tribunal. The authority knew, or should have known, before the Upper Tribunal hearing that it was in breach of its duty under the statement. It should have disclosed that position. The court considered that disclosure might have changed the course of the proceedings and secured the required provision earlier. That conduct, combined with the practical situation, justified an order for all Upper Tribunal costs without a narrow distinction between the issues argued.
3. Procedural observations. The court did not decide the procedural possibilities in detail because the authority’s concessions made this unsuitable for determination. It noted the evolving role of the Upper Tribunal under the Tribunals, Courts and Enforcement Act 2007, including its role in developing practice and guidance for specialist tribunals rather than deferring to the First-tier Tribunal’s expertise. The court referred to AP (Trinidad & Tobago) v Secretary of State [2011] EWCA Civ 551. If judicial review was the appropriate remedy for non-performance, the Upper Tribunal’s judicial review powers, exercised through an application to the Administrative Court and transfer, might in a suitable case permit all issues to be brought before it.

• Court of Appeal (Civil Division) — The appeal was allowed with consent. The authority agreed to fund the appropriate placement and was ordered to pay the costs of both appeals: [2011] EWCA Civ 870.
• Upper Tribunal, Administrative Appeals Chamber — HHJ David Pearl dismissed the appeal and declined to admit the new evidence.
• First-tier Tribunal — The tribunal amended the statement of special educational needs but named Thomas Wolsey School.