RP v Barnsley Metropolitan District Council

A procedural irregularity constitutes an error of law where it is capable of making a material difference to the outcome or the fairness of the proceedings. Conflicting pagination in tribunal bundles will not ordinarily undermine fairness, but the tribunal should identify the discrepancy and accommodate it, normally by giving both page references. Where an Education, Health and Care Plan does not clearly reflect a child’s needs from the start of a placement, deferring clarification to a later revised plan is not sufficient; the tribunal should order the necessary changes.

The appellant, the mother of two boys, appealed against decisions of the First-tier Tribunal (Health, Education and Social Care Chamber) concerning their Education, Health and Care Plans. The First-tier Tribunal had dismissed both appeals. The appeals raised, among other matters, allegations of procedural unfairness arising from different pagination in three versions of the hearing bundle, and an issue concerning whether the Plans adequately addressed the boys’ needs from the beginning of their placement.

The Upper Tribunal considered whether the alleged procedural irregularity amounted to an error of law and whether the First-tier Tribunal had dealt lawfully with the provision required from the start of the placement.

1. The appeals were allowed. The decisions of the First-tier Tribunal were set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007. Both cases were remitted for rehearing by a differently constituted panel.
2. Differences in pagination between paper and electronic bundles would ordinarily be an irritation rather than an unfairness. Tribunals should check the pagination when first referring to a bundle and, once a discrepancy is identified, should normally give both page numbers. The position was different here because there were three versions of the bundle, including different pagination between the electronic versions used by the local authority and the panel.
3. For a procedural irregularity, materiality is assessed by asking whether the irregularity was capable of making a material difference to the outcome or the fairness of the proceedings: see Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9(vi)]. The Upper Tribunal accepted that the appellant’s unfamiliarity with legal proceedings, together with the confusion caused by the three bundles, made the proceedings unfair and constituted an error of law. It was unnecessary to decide whether the irregularity had actually altered the outcome.
4. The First-tier Tribunal had dismissed the appeals but had stated that matters should be clarified in revised Plans. That was insufficient. If the current Plans did not clearly reflect the boys’ needs, the tribunal should have ordered the necessary amendments. The boys were entitled to Plans reflecting their needs from the start of their placement; postponement until a later revision was not an available alternative.

• Upper Tribunal (Administrative Appeals Chamber): The appeals against the First-tier Tribunal’s decisions were allowed. The decisions were set aside for errors of law and the cases were remitted for rehearing by a differently constituted panel.
• First-tier Tribunal (Health, Education and Social Care Chamber): Appeals concerning the two Education, Health and Care Plans were dismissed on 18 July 2024.