Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (held on 16 July 2009 under reference 09-01042) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Health, Education and Social Care Chamber).

DIRECTIONS:

The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal and any other issues that merit consideration.

Reasons for Decision

A. Introduction

1. This case concerns the special education needs of Chandresh. The principal issue that I deal with concerns the exclusion of evidence, in particular video evidence. The parties are Chandresh’s father and his local educational authority, the London Borough of Brent.

2. Upper Tribunal Judge Wikeley refused permission to appeal to the Upper Tribunal on the papers. The father renewed his application before me at an oral hearing on 3 December 2009. I gave limited permission to appeal. Having received and considered the local authority’s response to the appeal, I have decided to give a decision without inviting the father to reply.

B. How the video evidence issue arises

3. Chandresh’s father and mother attended the hearing before the First-tier Tribunal. They brought with them video evidence that they wished the tribunal to see. I was told at the permission hearing that the video was about 15 minutes long and consisted of short passages showing Chandresh’s behaviour at home at different times over a long period. The tribunal refused to view the evidence. In the tribunal’s written reasons, the presiding judge wrote under the heading Preliminary matters:

‘We rejected an application … to accept in evidence a video of Chandresh which they had brought to the hearing.’

In refusing permission to appeal to the Upper Tribunal, the same judge wrote:

‘The video was first produced by the appellant at the hearing itself on 16^th July. Although not included in the written decision the Tribunal properly considered the application and gave an oral decision to reject its admission on the ground that the evidence was submitted outside of the time specified in directions made 16^th June and in accordance with Rule 15.’

4. Those are the only reasons that I have for the tribunal’s decision to exclude the video evidence. There may have been more given orally, but the First-tier Tribunal has not provided a copy of the record of proceedings either in the form of the presiding judge’s notes or a recording.

C. The rules of procedure

5. The reference to rule 15 is a reference to rule 15 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699). That rule confers wide powers on the First-tier Tribunal to admit and exclude evidence:

‘15 Evidence and submissions

(1) Without restriction on the general powers in rule 5(1) and (2) (case management powers), the Tribunal may give directions as to—

(a) issues on which it requires evidence or submissions;

(b) the nature of the evidence or submissions it requires;

(c) whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence;

(d) any limit on the number of witnesses whose evidence a party may put forward, whether in relation to a particular issue or generally;

(e) the manner in which any evidence or submissions are to be provided, which may include a direction for them to be given—

(i) orally at a hearing; or

(ii) by written submissions or witness statement; and

(f) the time at which any evidence or submissions are to be provided.

(2) The Tribunal may—

(a) admit evidence whether or not—

(i) the evidence would be admissible in a civil trial in England and Wales; or

(ii) the evidence was available to a previous decision maker; or

(b) exclude evidence that would otherwise be admissible where—

(i) the evidence was not provided within the time allowed by a direction or a practice direction;

(ii) the evidence was otherwise provided in a manner that did not comply with a direction or a practice direction; or

(iii) it would otherwise be unfair to admit the evidence.

(3) The Tribunal may consent to a witness giving, or require any witness to give, evidence on oath, and may administer an oath for that purpose.

(4) In a special educational needs case the Tribunal may require—

(a) the parents of the child, or any other person with care of the child or parental responsibility for the child (as defined in section 3 of the Children Act 1989), to make the child available for examination or assessment by a suitably qualified professional person; or

(b) the person responsible for a school or educational setting to allow a suitably qualified professional person to have access to the school or educational setting for the purpose of assessing the child or the provision made, or to be made, for the child.

(5) The Tribunal may consider a failure by a party to comply with a requirement made under paragraph (4), in the absence of any good reason for such failure, as a failure to co-operate with the Tribunal, which could lead to a result which is adverse to that party’s case.’

6. Those powers have to be exercised in the light of the overriding objective contained in rule 2:

‘2 Overriding objective and parties’ obligation to co-operate with the Upper Tribunal

(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly.

(2) Dealing with a case fairly and justly includes-

(a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties;

(b) avoiding unnecessary formality and seeking flexibility in the proceedings;

(c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings;

(d) using any special expertise of the Tribunal effectively; and

(e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it-

(a) exercises any power under these Rules; or

(b) interprets any rule or practice direction.’

D. The argument on the video evidence

For Chandresh’s father

7. The case was put by Mr Patel of counsel at the permission hearing. He argued that the video was excluded for being submitted late without offering, or even exploring, the possibility of an adjournment. The case management directions had not been appropriately worded to deal with video evidence, so the parents could not be blamed for not sending in the evidence before the hearing.

For the local authority

8. The local authority has argued that the evidence on the video could not have affected the outcome of the appeal. In summary, its argument is that the evidence showed Chandresh’s behaviour at home whereas the tribunal was concerned with his educational needs and, therefore, with his behaviour in school. I accept that: (i) the video showed his behaviour at home and not in school; and (ii) that the tribunal was concerned with his educational needs. However, a child’s behaviour at home may be evidence of his behaviour at school. Chandresh’s parents wanted to present it as evidence on that basis.

E. How the tribunal went wrong in law

9. The tribunal was entitled to announce its decision not to admit the evidence orally at the hearing: rule 41(1). However, it is under a duty ‘after making a decision which finally disposes of all issues in the proceedings’ to provide ‘written reasons for its decision’: rule 41(2). The rule does not limit the reasons to those relating to the final disposal of the proceedings. That disposal is a condition precedent to the duty to give written reasons. It does not limit the scope of those reasons. The duty is not limited to the substantive issues in dispute on the appeal. It includes decisions made in the course of the proceedings on significant matters such as the admission or exclusion of evidence that might have had an effect on the outcome.

10. In this case, it is possible that the video evidence (if admitted) might have affected the outcome. Chandresh’s parents were entitled to know why the tribunal excluded the evidence. The judge merely referred to the timetable for producing evidence and to rule 15. Those reasons are open to two interpretations.

11. One interpretation is that the judge was merely identifying the source of the tribunal’s power to exclude late evidence, specifically rule 15(2)(b)(i), without saying why the tribunal so decided. On this interpretation, the tribunal failed to give any reason why it excluded the evidence. That makes its reasons inadequate, which is an error of law.

12. The other interpretation is that the judge was referring to rule 15(2)(b)(i) on the basis that the tribunal had directed itself that failure to provide evidence within the time allowed was a sufficient reason for excluding it. Read in isolation, that is what rule 15(2)(b)(i) appears to allow. However, that provision has to be applied in the light of the overriding objective. On this interpretation, the tribunal misdirected itself on the application of rule 15(2)(b)(i), which is an error of law.

F. What the tribunal should have done

13. This is how the tribunal should have dealt with the late evidence. It is how the tribunal should approach it at the rehearing.

14. The tribunal had set a timetable for the submission of evidence. The video was submitted late. It had to consider, as one factor, why the evidence was submitted late and whether it could have been submitted earlier. This is not decisive. It is one factor that has to be taken into account along with any other factor that is relevant to the overriding objective.

15. Logically, the tribunal should first have decided whether the evidence was relevant. To do so, the tribunal should have considered what the video showed and how that related to the substantive issues on the appeal. In practice, it may not have been possible to decide this question without seeing the video.

16. Other factors included whether the evidence was in dispute anyway and whether the same evidence could be given without the need to view the video. It was also relevant to consider whether the evidence would give rise to satellite issues, such as when the footage was taken, whether it was edited and so on. These factors are not exhaustive.

17. The tribunal should have taken those and any other relevant factors and, applying the overriding objective, decided whether it was fair and just to exclude the evidence. It should have explained why it made that judgment. The explanation need not be long. A few short sentences would have been sufficient to show what factors the tribunal had considered and which had predominated.

18. If the tribunal had admitted the evidence, it would have had to decide how to arrange for the video to be seen.

19. So far, I have dealt with issues of law. The tribunal might have taken a more practical approach. It might have decided to arrange to view the short video, regardless of its potential relevance, because it was considered important by the Chandresh’s parents. It might also have decided that this was more efficient than undertaking a detailed inquiry into whether the evidence should be seen. As I said, those are not matters of law. But that does not mean that they are not important. The tribunal has power to act in ways that increase efficiency and bolster the parties’ perception of the fairness of the hearing.

20. To avoid any doubt, I have not decided that the tribunal must admit this evidence. That is a matter for the tribunal.

G. The form of the tribunal’s decision

21. Finally, I need to comment on the form of the tribunal’s decision. In S/2203/2009, I wrote:

‘7. The tribunal’s decision was written in the format followed by the predecessor tribunal in the special educational needs jurisdiction. It begins with some unnumbered opening paragraphs, followed by numbered paragraphs dealing with the facts, and concludes with lettered paragraphs giving the tribunal’s reasons and conclusions. That form may be hallowed by usage, but it does not comply with the Senior President’s Practice Statement on Forms of Decisions and Neutral Citation. Paragraph 2 provides: ‘First-tier Tribunal and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering.’ A three-judge of the Upper Tribunal reminded the First-tier Tribunal of the need to comply with this in M/0708/2009 at [16].’

22. Since I wrote that decision, Upper Tribunal Judge Wikeley has commented to similar effect in S/1497/2009:

‘13. The format of the First-tier Tribunal’s decision in this case was in the traditional SENDIST format. Thus the Decision and Statement of Reasons includes a section headed ‘Facts’ with numbered paragraphs, a section headed ‘Tribunal’s conclusions with reasons’ with lettered paragraphs, and the document was ‘topped and tailed’ with paragraphs which are neither numbered nor lettered.

14. This is clearly a tried and tested format for SENDIST decisions. However, the section headed ‘Facts’ does not simply record the facts as found by the tribunal – it also rehearses the evidence (a tendency which Stanley Burnton J observed in VK v Norfolk County Council and SENDIST [2004] EWHC 2921, [2005] ELR 342 at paragraph 60), without necessarily always making it clear whether or not that evidence was accepted.

15. There is, however, a more fundamental issue about the continued use of this traditional SENDIST format for decisions. The HESC Chamber of the First-tier Tribunal is part of the judicial system established by the 2007 Act and overseen by the Senior President of Tribunals. The Senior President has the power to make directions on ‘the making of decisions by members of the First-tier Tribunal’, without the approval of the Lord Chancellor (Tribunals, Courts and Enforcement Act 2007, section 23(6)(b)).

16. In this regard the Senior President has issued a Practice Statement on the Form of Decisions and Neutral Citation: First-tier Tribunal and Upper Tribunal on or after 3 November 2008. This expressly provides that “First-tier and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering”. The Practice Statement refers to the need to follow international practice and to use such numbering to facilitate publication of decisions on the web. True, that latter rationale is not applicable to decisions of the HESC Chamber of the First-tier Tribunal in special educational needs cases. However, a consistent and sequential system of paragraph numbering is invaluable for the parties and also for the Upper Tribunal in helping to identify easily particular passages in tribunal decisions. Compliance with the Senior President’s Practice Statement is therefore a matter of good judicial practice.

17. The particular First-tier Tribunal in the present case is certainly not alone in issuing decisions in the traditional SENDIST format. It is a moot point whether that practice is consistent with either the letter or the spirit of the Senior President’s Practice Statement. However, that is a matter for the judiciary in the HESC Chamber in the first instance and has no direct bearing on the outcome of this appeal.’

I respectfully agree with those comments, with one qualification. I do not understand the reference in paragraph 15 to section 23(6)(b) of the Tribunals, Courts and Enforcement Act 2007. As Judge Wikeley said, that provision confers power to give practice directions. However, the form of decisions is covered by a practice statement rather than a practice direction.

23. The remarks in those cases apply equally to the form of decision that was produced in this case.

H. Disposal

24. I allow the appeal and direct a rehearing.

25. As the tribunal made an error of law in the way that it dealt with the application to admit the video evidence, I have set aside its decision. I gave permission on other grounds, but it is not necessary to deal with them. They involve no issue of law on which it would be useful for me to direct the tribunal at the rehearing.

Signed on original on 21 January 2010

Edward Jacobs Upper Tribunal Judge