AWZ v Hertfordshire County Council

When a fact-finding tribunal gives several reasons for its decision, an error affecting some reasons does not by itself require the decision to be set aside. The appellate court must assess whether it can be tolerably confident that the same decision would have followed on the reasons that remain. That assessment considers the reasons’ probative value, both in isolation and relative to the reasons affected by error, the weight the tribunal gave them, and the overall picture. Counting the reasons that survive is not enough.

AWZ appealed against a First-tier Tribunal decision concerning the education, health and care plan for her son, who has disabilities and special educational needs. The Tribunal’s original decision, made on 21 August 2024, addressed speech and language therapy. Following a remittal by Tribunal Judge Southby on 20 January 2025 to clarify the evidence available to the panel and reconsider that issue, the same panel issued a decision on 20 June 2025.

In the later decision, the panel accepted a joint report by two witnesses and stated that one of them had assessed AWZ’s son and administered an assessment tool. The Upper Tribunal had to decide whether that factual mistake undermined the panel’s reasons as a whole.

1. The Tribunal’s decision involved an error of law and was set aside. The case was remitted for rehearing by a differently constituted panel.
2. The joint form of the report showed that witness 2 had not personally assessed AWZ’s son or administered the SPLINGO Receptive Language Assessment. The panel’s later reasons stated that she had done so. Those reasons could only be read as a finding that witness 2 had met and assessed the child. The Upper Tribunal therefore rejected the local authority’s argument that the panel had meant witness 3 carried out the assessment.
3. Applying the approach in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037, an error in some of a fact-finding tribunal’s reasons does not alone require its decision to be set aside. The appellate court asks whether it is just to let the decision stand and, ordinarily, whether it can be tolerably confident that the same decision would have been reached on the reasons that survive scrutiny. The inquiry is qualitative: it considers the probative value of the reasons in absolute and comparative terms, the weight the tribunal gave them, and the overall picture, including relevant reasons that were not expressed.
4. The mistaken finding removed one of five reasons for accepting the joint report. The panel had made a point of witness 2’s personal involvement, and three of its five reasons referred to personal involvement; the Upper Tribunal regarded that involvement as significant, though neither dominant nor decisive. The panel also did not bring its criticisms of witness 1’s evidence into focus or compare their combined effect with the favourable points it had identified for the joint report. Although a rationale might be discerned from the evidence as a whole, reconstructing one was not the purpose of the Tribunal’s reasons. The materiality test was met.

1. Upper Tribunal (Administrative Appeals Chamber) In AWZ v Hertfordshire County Council, [2026] UKUT 301 (AAC) , the decision of 20 June 2025 was set aside for error of law and the case remitted for rehearing by a differently constituted panel.
2. First-tier Tribunal (Health, Education and Social Care Chamber) On 20 June 2025, the same panel issued a further decision after Tribunal Judge Southby’s remittal. That decision was set aside on appeal.
3. Upper Tribunal (Administrative Appeals Chamber) On 20 January 2025, Tribunal Judge Southby remitted the case under the First-tier Tribunal’s review power so the panel could specify the written evidence available to it and reconsider speech and language therapy.
4. First-tier Tribunal (Health, Education and Social Care Chamber) The panel’s original decision was made on 21 August 2024. The judgment gives the reference as EH919/23/00141.