Swansea City Council, R (on the application of) v Education Tribunal for Wales

A review decision of the Education Tribunal for Wales is appealable to the Upper Tribunal where the governing statutory provision applies the appellate procedure in section 12 of the Tribunals, Courts and Enforcement Act 2007. The statutory scheme does not confine appeals to decisions other than review decisions. Judicial review is therefore inappropriate where that statutory appeal provides an alternative remedy. Permission to appeal may nevertheless be refused where the underlying tribunal proceedings have been withdrawn, the proposed appeal would be academic, and no useful order could be made. Potentially important issues concerning the scope of the review power should ordinarily be decided in a later contested case in which the parties remain invested.

The parents appealed to the Education Tribunal for Wales against the content of a statement of special educational needs maintained by Swansea City Council. The Tribunal reviewed and set aside its decision of 13 November 2023 and ordered a rehearing by decisions dated 22 March and 5 April 2024. It informed the parties that the review decision could be challenged only by judicial review.

Swansea brought judicial review proceedings and, protectively, applied for permission to appeal. The judicial review claim was transferred to the Upper Tribunal. Before determination, the parents withdrew the underlying appeal to the Tribunal. The central issues were whether the review decision was appealable and, if so, whether permission should be granted to pursue the proposed appeal.

1. Jurisdiction. The claim for judicial review was dismissed. Following AB v Newport City Council [2022] UKUT 190 (AAC), a review decision of the Special Educational Needs Tribunal for Wales, now renamed the Education Tribunal for Wales, is appealable to the Upper Tribunal with permission.

2. The renaming provisions in the Additional Learning Needs and Education Tribunal (Wales) Act 2018 were cosmetic for this purpose. Whether the appeal was governed by section 336ZB of the Education Act 1996 or section 81 of the 2018 Act, the relevant wording was materially identical. Section 81(3), like section 336ZB(3), applied section 12 of the Tribunals, Courts and Enforcement Act 2007 to appeals to the Upper Tribunal.

3. The correct route of challenge was therefore statutory appeal, not judicial review. The statutory appeal constituted an alternative remedy which precluded judicial review.

4. Permission to appeal was refused. The underlying appeal to the Education Tribunal had been withdrawn, so the review decision had no continuing legal or practical effect. The proposed arguments concerning regulation 56 of the Special Educational Needs Tribunal for Wales Regulations 2012, including procedural fairness and the meaning of an obvious and material error, would be decided in a vacuum. No useful basis existed for remaking the review decision, and any possible precedent should await a contested case in which both parties remained engaged.

   The decision was made on the papers. Swansea retained the right to seek reconsideration of the refusal of permission at an oral hearing.

• Education Tribunal for Wales: decision dated 13 November 2023 on the parents’ appeal was reviewed and set aside by review decisions dated 22 March and 5 April 2024, with a rehearing ordered.
• Administrative Court: the judicial review proceedings were transferred to the Upper Tribunal on 15 August 2024.
• Upper Tribunal (Administrative Appeals Chamber): judicial review claim dismissed; permission to appeal the review decisions refused.