GNY v Hammersmith and Fulham Council

The Equal Treatment Bench Book is a judicial briefing, not law. It need not be cited or expressly applied and creates no additional procedural duties. Fairness is assessed through the applicable procedural rules and overriding objective, with assistance tailored to parties’ needs and representation. Representatives share the duty to assist the tribunal. Panel questions are permitted where appropriate, while preserving the appearance of impartiality. On an appeal alleging error of law, a procedural irregularity is material if it could affect the outcome or fairness. An isolated error is assessed against the decision’s reasoning as a whole.

GNY, a young person with significant physical and mental disabilities, appealed the Education, Health and Care Plan issued for her by Hammersmith and Fulham Council. Her mother, HNY, supported her. The First-tier Tribunal considered GNY’s needs, the educational provision required and whether she should attend college or receive support elsewhere. Its decision of 13 November 2023 was challenged on grounds concerning the Equal Treatment Bench Book, the fairness of the hearing, the assessment of evidence and the adequacy of reasons.

After permission to appeal, the Upper Tribunal heard the appeal on 4 March 2026. The central question was whether the First-tier Tribunal had made an error of law.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007. The Upper Tribunal therefore did not set it aside.

2. The Equal Treatment Bench Book is not law. It briefs tribunals on communicating with parties and assessing evidence in light of personal characteristics. It is not evidence, does not displace ordinary principles for assessing reliability and credibility, and creates no separate duty to be mentioned or expressly applied. Fairness operates through the general duty and the requirements of the overriding objective. The Bench Book can help tribunals accommodate individual needs, while recognising that individuals do not necessarily conform to stereotypes (paras 13, 18–23).

3. Under rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, the assistance required depends on the party’s needs, including whether the party is represented. The duties on parties to help the tribunal and co-operate extend to their representatives. Where a party is represented, the tribunal may rely on counsel to question witnesses and address evidential points apparent to counsel (paras 16–17, 22, 25, 31).

4. Panel members may question parties and witnesses to further fair and just proceedings and use the tribunal’s expertise. They must do so appropriately and maintain the appearance of independence and impartiality. Putting a concern to a witness for comment can avoid the appearance of prejudgment or confrontation. The judge’s question distinguishing HNY’s experience from GNY’s trauma was not unfair (paras 27–28).

5. For a procedural irregularity to be material on an error-of-law appeal, it must be capable of making a difference to the outcome or the fairness of the proceedings. The court applied that more favourable fairness test to the complaints advanced (paras 14–15). A single flaw in a tribunal’s reasoning does not, by itself, invalidate the decision. Its significance must be assessed in the context of the reasoning as a whole, including the probative value and relative weight of the reasons and the overall evidential picture. Even assuming a problem with the tribunal’s treatment of Ms R’s evidence, it did not undermine the conclusion on education otherwise than in college (paras 43–46).

6. The Upper Tribunal’s question was whether the specialist tribunal was entitled to assess the evidence as it did, not whether another view could have been argued. The First-tier Tribunal could reject Dr J’s evidence in whole or in part without competing evidence, and the absence of such evidence was not decisive (paras 41–42). Its use of HNY’s mother’s surname incorrectly was also not an error of law: the tribunal did not confuse the case or its evidence (para 2).

1. Upper Tribunal (Administrative Appeals Chamber): In [2026] UKUT 242 (AAC) , held that the First-tier Tribunal decision did not involve an error of law and dismissed the appeal.
2. First-tier Tribunal (Health, Education and Social Care Chamber): Decided GNY’s appeal concerning her Education, Health and Care Plan on 13 November 2023.