RP v Barnsley Metropolitan District Council

A procedural irregularity amounts to an error of law where it was capable of making a material difference to the outcome or the fairness of the proceedings. Differing bundle pagination will not ordinarily undermine fairness, but a tribunal should identify discrepancies when first referring to a bundle and accommodate them, usually by giving both page numbers. Where multiple inconsistent versions create confusion and disadvantage a party unfamiliar with legal proceedings, the resulting unfairness may justify setting aside the decision. An Education, Health and Care Plan must reflect a child’s needs from the start of a placement. A tribunal should order necessary changes rather than defer them to a later revision.

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 to the Upper Tribunal raised, among other matters, alleged procedural unfairness arising from inconsistent pagination in the hearing bundles and the tribunal’s treatment of provision from the start of the boys’ placement.

The central issues were whether the bundle-pagination problem constituted a material procedural irregularity and whether the tribunal had erred in law by leaving necessary clarification of the Plans to a later revision.

1. The appeals were allowed. The First-tier Tribunal’s decisions were set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007, and both cases were remitted for rehearing by a differently constituted panel.
2. Differences in pagination between paper and electronic bundles are ordinarily an irritation rather than a denial of fairness. The tribunal should check for discrepancies at the first reference to a bundle and ordinarily provide both page numbers.
3. The applicable test for a procedural irregularity is whether it was capable of making a material difference to the outcome or the fairness of the proceedings, applying the formulation identified by Brooke LJ in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [9(vi)].
4. Here, the existence of three versions of the bundle, including differing pagination between the electronic version used by the local authority and that used by the panel, created confusion. In light of the appellant’s lack of familiarity with legal proceedings and her account of the resulting disadvantage, the Upper Tribunal found unfairness and an error of law. It was unnecessary to decide whether the irregularity affected the substantive outcome.
5. The First-tier Tribunal had dismissed the appeals but nevertheless stated that matters should be made clear in revised Plans. That was insufficient. If the existing Plans did not clearly reflect the boys’ needs, the tribunal had to order the necessary changes. Deferring compliance until a later revision was not an option.

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