KM & DM v Cheshire West and Chester Council

For a costs application under rule 10(5)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, time runs from the sending of the decision notice which disposes of the substantive appeal. It does not await either the First-tier Tribunal’s decision on permission to appeal or expiry of the period for seeking permission.

In deciding whether to extend time for a late costs application, the tribunal need not conduct a mini-trial of its merits. It may take account of the applicant’s explanation, the inevitable prejudice or inconvenience to the other party, the broad prospects of the application, and the effect of effective case management on the scope for unreasonable conduct.

The appellants had appealed against the contents of their son’s education, health and care plan under Part 3 of the Children and Families Act 2014. After the First-tier Tribunal’s substantive decision, they applied for a costs order against the Council.

The First-tier Tribunal held that the costs application was 55 days late under rule 10(5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 and refused to extend time. The appellants appealed, contending that time began only when the First-tier Tribunal refused permission to appeal against the substantive decision, or alternatively that the refusal of an extension involved legal error.

The central issue was when a decision notice finally disposes of all issues for the costs time limit.

1. Appeal dismissed. The First-tier Tribunal made no error of law in holding that the costs application was out of time or in refusing an extension.

2. Rule 10(5)(a) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 had to be construed within the structure of the Rules. The event which starts the 14-day period is the sending of a decision notice. Rule 30(2) requires such a notice after a decision disposing of all issues in the substantive appeal. By contrast, rule 47(3) requires only a record of a decision on permission to appeal. The different terminology was deliberate. Accordingly, the relevant decision notice is the one disposing of all issues arising in the substantive appeal, not a later determination of permission to appeal.

3. That construction also accords with section 22(4)(c) of the Tribunals, Courts and Enforcement Act 2007, which directs that procedure rules be made to secure quick and efficient handling of proceedings. The contrary construction could make the commencement of the costs period depend on a party’s omission to seek permission, whereas rule 10(5) requires a positive act by the Tribunal.

4. On the extension issue, a tribunal considering a late costs application need not decide its merits as if conducting a mini-trial. It may assess them less intensively. The First-tier Tribunal was entitled to find that the appellants’ asserted misunderstanding of the time limit did not justify the delay, to take account of the inconvenience to the Council, and to treat active case management as reducing the scope for unreasonable conduct. It had not misunderstood the substance of the costs allegations.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007: [2024] UKUT 89 (AAC).

• First-tier Tribunal (Health, Education and Social Care Chamber): held the costs application out of time and refused to extend time on 30 March 2022 (case ref CA22-012).

• First-tier Tribunal (Health, Education and Social Care Chamber): decided the underlying education, health and care plan appeal on 23 December 2021 and later refused permission to appeal.