JJ & Anor v Buckinghamshire Council

A tribunal deciding whether a party acted unreasonably for the purposes of a costs application must give intelligible and adequate reasons for resolving the principal disputed allegations. General findings that the party acted reasonably, or had reasonable explanations, will not suffice where they do not explain why material and distinct allegations were rejected.

The discretionary stage of the costs jurisdiction arises only after unreasonable conduct has been found. A challenge to the absence of such a finding is therefore not merely an appeal against the exercise of discretion.

The appellants had succeeded in an appeal concerning their child’s Education, Health and Care Plan. They then sought costs from the local authority under rule 10(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, alleging unreasonable conduct during the proceedings.

The First-tier Tribunal dismissed the costs application in a decision of 2 July 2020 (tribunal reference CA20-26). The appellants appealed, contending that the tribunal had failed to address three central allegations: the withdrawal of a concession, alleged pressure on an occupational therapist, and issues concerning consent to an STS observation.

The Upper Tribunal considered whether the First-tier Tribunal had given legally adequate reasons and, if so, whether the costs application should be remade or remitted.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law because its reasons were inadequate. The decision was set aside and the costs application was remitted for redetermination.

2. The First-tier Tribunal had identified some matters connected with the allegation concerning withdrawal of the local authority’s concession. However, it did not expressly identify the allegations of improper pressure on the occupational therapist or unreasonable conduct concerning consent to an STS observation.

3. Its general conclusions that the local authority had not undermined the overriding objective and had given reasonable explanations for its actions could, if properly made out, have disposed of all three allegations. But those conclusions did not explain why the second and third allegations failed. The tribunal made no finding that there was no evidence of improper pressure, nor that the local authority had acted reasonably in seeking consent. The reasons therefore did not tell the appellants why they had lost on those central issues.

4. The Upper Tribunal endorsed the authorities stressing that costs applications should be focused and that costs are exceptional. Those principles did not answer this appeal, because the local authority had not contended that this application itself fell below the required standard.

5. The appeal was not a challenge to a discretionary costs decision. Under rule 10, the discretionary stage would arise only after a finding of unreasonable conduct. The issue was the legal adequacy of the First-tier Tribunal’s determination that such conduct had not been established.

6. The application was remitted rather than remade. The First-tier Tribunal was better placed to make the evaluative judgment about the conduct of proceedings. A salaried judge was directed to consider any necessary case-management directions.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s costs decision for error of law, and remitted the application for redetermination: [2022] UKUT 345 (AAC).
• First-tier Tribunal (Health, Education and Social Care Chamber): On 2 July 2020, dismissed the appellants’ application for costs following their successful Education, Health and Care Plan appeal (tribunal reference CA20-26).