AB v Newport City Council

A review decision of the Special Educational Needs Tribunal for Wales is appealable to the Upper Tribunal on a point of law. The statutory reference to appeals under section 11 of the Tribunals, Courts and Enforcement Act 2007 does not import the First-tier Tribunal’s excluded-decision provisions. A review may properly result in no action; surviving the permission or reasonable-prospects filter does not require the review to succeed. Evidence of post-decision events is generally irrelevant to an obvious and material error, but may be relevant to an interests-of-justice review. When deciding whether to cease maintaining a statement of special educational needs, the tribunal must address material educational disruption which a transfer to alternative provision may cause. Failure to explain why significant, evidenced issues were rejected renders the reasons inadequate.

The appellant challenged Newport City Council’s decision to cease maintaining her daughter’s statement of special educational needs while she was attending the sixth form of an independent school. The Special Educational Needs Tribunal for Wales dismissed the appeal on 17 July 2020 and refused a review on 8 February 2021.

The appellant appealed to the Upper Tribunal, raising issues about the appealability of review decisions, the use of post-decision evidence, educational disruption caused by a possible transfer, and the suitability of multi-site sixth-form provision. By the hearing, the young person had completed her sixth-form education, but the appeal was retained because it raised issues of wider significance.

1. Appealability of review decisions. Section 336ZB(3) of the Education Act 1996 applies section 12 of the Tribunals, Courts and Enforcement Act 2007, but does not incorporate the First-tier Tribunal’s excluded-decision provisions in section 11. The statutory mismatch between those provisions and the independent review, variation and revocation powers available under the 2012 Regulations made the respondent’s construction untenable. A review decision of the Welsh Tribunal is therefore appealable on a point of law.
2. Effect of a review. Regulation 56(4) of the 2012 Regulations permits the Tribunal, after review, to set aside the decision, vary it, or take no action. The reasonable-prospects filter does not predetermine the outcome. Although the Tribunal described itself as refusing to review, it had in substance reviewed the decision and gave intelligible reasons. That aspect of the appeal failed.
3. Evidence on review. The relevance of evidence depends on the review ground. Post-decision events cannot ordinarily establish an obvious and material error in the original decision, which must be judged by reference to the case before the Tribunal. Such evidence may nevertheless be relevant to the interests-of-justice ground. The Tribunal erred in relying on evidence that the young person had remained at her school, but the error was immaterial because alternative reasoning, which ignored that evidence, supported the result.
4. Educational disruption. Following W v Gloucestershire CC [2001] EWHC Admin 481, educational difficulties which a transfer may cause are relevant when deciding whether a statement remains necessary, including in a cessation case. The Tribunal failed to address the possible transfer from the independent school, the consequences of changing courses and examination boards, and travel between sixth-form sites. It either failed to explain why those matters did not arise, failed to explain why the young person could cope with them, or misdirected itself by treating them as irrelevant. Its reasons were inadequate.
5. The fourth ground also succeeded because the Tribunal did not explain why the evidence concerning anxiety, social communication difficulties and the ability to travel between sites did not affect the suitability of the proposed provision.
6. The appeal was allowed. The Tribunal’s decision was set aside under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, with no further order because the appeal had become academic. A non-disclosure order was made under rule 14(1) of the Upper Tribunal (Tribunal Procedure) Rules 2008.

• Special Educational Needs Tribunal for Wales: the parents’ appeal was dismissed on 17 July 2020. The Tribunal refused a review on 8 February 2021 and refused permission to appeal.
• Upper Tribunal (Administrative Appeals Chamber): permission to appeal was granted. The appeal was allowed, the Tribunal’s decision was set aside, and no further order was made.