DB v Academy Transformation Trust

The power to stay proceedings in rule 5(3)(j) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 permits a stay of proceedings before the First-tier Tribunal. It does not permit the tribunal to suspend, pending determination of a discrimination claim, the effect of the respondent's underlying administrative decision.

That construction follows from the procedural rule-making power in section 22 of the Tribunals, Courts and Enforcement Act 2007 and is reinforced by rule 5(3)(l), which expressly permits suspension only of the tribunal's own decision. Section 3 of the Human Rights Act 1998 does not require a contrary reading where judicial review and a later reinstatement order provide an effective remedy.

The applicant was the father of an eight-year-old child with significant special educational needs. Following the child's second permanent exclusion from school, the applicant brought a further disability discrimination and victimisation claim before the First-tier Tribunal.

At a case-management hearing, he sought an interim stay of the school's exclusion decision pending final determination of that claim. The First-tier Tribunal held on 17 January 2022 that it lacked power to grant that relief. Permission to appeal was refused first by the Deputy Chamber President of the First-tier Tribunal and then, on the papers, by an Upper Tribunal judge.

The applicant renewed his application at an oral hearing. The central issue was whether rule 5(3)(j) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, alone or read under section 3 of the Human Rights Act 1998, empowered the First-tier Tribunal to suspend the effect of the exclusion decision.

1. Permission to appeal was refused. It was not arguable with a realistic prospect of success that the First-tier Tribunal had erred in law by declining to stay the school's exclusion decision pending the discrimination claim.
2. Read in its statutory context, rule 5(3)(j) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 permits the First-tier Tribunal to stay only its own proceedings. It does not authorise interlocutory interference with an administrative decision challenged in those proceedings.
3. Section 22(1) of the Tribunals, Courts and Enforcement Act 2007 confines Tribunal Procedure Rules to the practice and procedure of the First-tier Tribunal. The objective of doing justice in section 22(4) cannot enlarge that rule-making power. Rule 5(1) similarly concerns regulation of the tribunal's own procedure.
4. The express power in rule 5(3)(l) to suspend the effect of the First-tier Tribunal's own decision pending appeal confirms that rule 5(3)(j) does not authorise suspension of the respondent's exclusion decision. A stay under rule 5(3)(j) retains useful work, for example where claims depend on a common Upper Tribunal ruling.
5. R v Secretary of State for Education and Science ex parte Avon County Council [1991] 1 QB 558 turned on the language of the judicial-review rule there in issue. It did not establish a universal public-law meaning of “proceedings”. The applicant's human-rights argument also failed: judicial review could suspend the administrative decision and the First-tier Tribunal could order reinstatement once the claim was determined.

• Upper Tribunal (Administrative Appeals Chamber): Permission to appeal refused after an oral hearing in DB v Academy Transformation Trust [2022] UKUT 66 (AAC).
• Upper Tribunal: A renewed application for permission was refused on the papers by Judge West on 21 February 2022.
• First-tier Tribunal (Health, Education and Social Care Chamber): On 17 January 2022, it held that it had no power to stay the school's permanent-exclusion decision pending the disability discrimination claim. Permission to appeal was later refused by the Deputy Chamber President on 11 February 2022.