ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT Mr Justice Jack
CO/964/2004 1758/2004
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE PRESIDENT OF THE FAMILY DIVISON, THE RT HON LADY JUSTICE BUTLER SLOSS
THE RT HON LORD JUSTICE JACOB
and
THE RT HON LORD JUSTICE HOOPER
Between :
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Diane Dean and Roger Dean |
Appellant |
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- and - |
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East Sussex County LEA |
Respondent |
ROSEMARY, LADY HUGHES (PRESIDENT OF THE SPECIAL
EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL) Interested party
Mr John Friel (instructed by Messrs Ormerods) for the Appellants
Ms Lisa Busch (instructed by East Sussex County LEA) for the Respondent
Mr Jonathan Auburn (instructed by the Treasury Solicitor) for the Interested Party
Judgment
Lord Justice Hooper:
The principal issue in this appeal concerns the jurisdiction of the Special Educational Needs and Disabilities Tribunal (“the Tribunal”) to hear an appeal relating to a statement of special educational needs (a “SEN Statement”) issued by the respondent Local Education Authority (“LEA”) which reflected amendments which had been made pursuant to an order of the Tribunal. Jack J, sitting in the Administrative Court, held that it had no such jurisdiction. From that decision the appellant parents appeal.
On 28 November 2002 following an annual review of the educational needs of the appellant’s disabled twin daughters, the respondent LEA issued amended statements which named a school which I shall call “A” school. The children were not currently at that school. The parents objected to the choice of the A school and preferred, what I shall call, “B” school. The appellants appealed and that appeal was heard by the Tribunal on 1 May 2003. At the hearing the parties were able to agree significant amendments to Parts 2 and 3 of the statements. The remaining issue to be decided by the Tribunal related solely to Part 4 of the statement in which A school had been named. The Tribunal concluded that B school could offer appropriate treatment but would involve unreasonable public expenditure given that, in the view of the Tribunal, appropriate provision could be made at A school. The appeal against Part 4 was dismissed.
On 19 June 2003, the statements amended in Parts 2 and 3 to reflect the decision of the Tribunal were sent to the appellant parents.
On 30 June the parents applied to the Tribunal for a review of the decision pursuant to Regulation 37 of the Special Educational Needs Tribunal Regulations, SI 2001 No. 600 (“the Tribunal Regulations). The power to review a decision comes from section 336 of the Education Act 1996 (“the Act”) which provides that regulations may make provision for the proceedings of the Tribunal on an appeal, which regulations may include provisions: “enabling the Tribunal to review its decisions, or revoke or vary its orders, in such circumstances as may be determined in accordance with the regulations”.
Regulation 37 provides, in part:
“(1) A party may apply to the Secretary of the Tribunal for the decision of the tribunal to be reviewed on the grounds that –
a) its decision was wrongly made as a result of an error on the part of the tribunal staff;
b) a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear;
c) there was an obvious error in the decision; or
d) the interests of justice require.
(2) An application that a decision of the tribunal be reviewed shall –
a) be made not later than 10 working days after the date on which the decision was sent to the parties;
b) be in writing stating the grounds in full.
(3) An application that a decision of the tribunal be reviewed may be refused by the President, or by the chairman of the tribunal which decided the case, if in his opinion it has no reasonable grounds of success.
(4) Unless an application that a decision of the tribunal be reviewed is refused in accordance with paragraph (3), it shall be determined, after the parties have had an opportunity to be heard, by the tribunal which made the decision or, where that is not practicable, by a tribunal appointed by the President.
(5) The tribunal may on its own initiative propose to review its decision on any of the grounds referred to in paragraph (1), in which case –
a) the Secretary of the Tribunal shall serve notice on the parents not later than 10 working day after the date on which the decision was sent to them; and
b) the parties shall have an opportunity to be heard.
(6) If, on the application of a party or on its own initiative, the tribunal is satisfied as to any of the grounds referred to in paragraph (1) –
a) it shall order that the whole or a specified part of the decision be reviewed; and
b) it may give directions to be complied with before or at the hearing of the review.”
Given the tight time table of 10 days, it is fortunate that Regulation 52(1) gives the President power to extend. It provides:
“Where these Regulations or a direction made under them requires or authorises a person to do something within a period of time, the President may, on the application of that person or on his initiative, in exceptional circumstances extend that period of time.”
The parents’ application for a Review was about two weeks out of time and was refused. No application was made to extend the time limit and the power to extend was not, so it appears, considered.
Subsequently the children began attending A school and, in the view of the parents, their concerns about A school were realised.
On 26 September, the Respondent sent the parents copies of what were described in the accompanying letter as “final statements”. They were, so Jack J understood, in the same form as the statements sent out in June. They were dated 6 September and stated that they were amended with effect from 26 September 2003 (something which Jack J did not understand and nor do I). Subsequently the appellants served notices of appeal to the Tribunal, which notices were received on 3 December. The notices referred to the 6 September statements and stated that the parents disagreed with Parts 2, 3 and 4 of the statements and wanted B school to be named in Part4. In the words of Jack J:
“The Grounds of Appeal were set out in separate documents. They made clear that the appeals were against the statements issued by the LEA as amended on 19 June 2003 pursuant to the Tribunal’s order of 6 June 2003. The appeals proceeded on that basis in the Tribunal. The subsequent appeals before me have also been conducted on the same basis and I will deal with them on that basis.”
On 5 January 2004, the LEA wrote to the parents stating that, despite their view that A school was unable to meet the needs of the children and despite their wish that they should not stay there, the LEA remained confident that the children’s needs could be met at A school. It was agreed before Jack J that this gave the parents a right of appeal to the Tribunal pursuant to Section 326(1)(c) of the Act. In the words of Jack J:
“If that course had been followed the Tribunal would have had undoubted jurisdiction to deal with the issues in the light of the evidence which has become available since the hearing in May 2003. Instead the resolution of the issue as to schools has been prevented by a procedural dispute.”
Returning to the appeals, on 15 January 2004 the Respondent LEA applied to strike out the parents’ appeals on the ground that the parents were seeking to appeal against statements which had been amended in accordance with the Tribunal’s order and that the Tribunal therefore had no jurisdiction. The Respondent relied on Regulation 44 of the Tribunal Regulations which provides for the striking out of an appeal where an appeal is not within the jurisdiction of the Tribunal or is scandalous, frivolous or vexatious.
On 9 February 2004 the Tribunal dismissed the LEA’s application to strike out on the grounds of lack of jurisdiction. The LEA appealed that dismissal under section 11(1) of the Tribunals and Enquiries Act 1992 and Jack J, sitting in the Administrative Court, allowed the appeal. The effect of that section and Schedule 1 is to provide that if a party to proceedings before the Special Educational Needs and Disabilities Tribunal “is dissatisfied in point of law with a decision of the tribunal he may, according as rules of court may provide, ... appeal from the tribunal to the High Court ... .”
On 10 March 2004 the Tribunal struck out the parents’ appeals as being vexatious. In the words of Jack J:
“The grounds were first, that Parts 2 and 3 of the statements had been agreed by representatives of both parties and the Tribunal should not go behind what was agreed, and second, that there were no new expert’s reports and assessments other than a school assessment for the B school which supported an argument of new circumstances to justify a new hearing: the appeals were an attempt to re-litigate matters indicated on the earlier hearing.”
The parents appealed that decision to the Administrative Court under Section 11(1) and that appeal was also heard by Jack J at the same time as the LEA’s appeal. Given his conclusion that the Tribunal had no jurisdiction to entertain their appeals against the amended statements, it was not necessary for him to decide their appeal. However, he said:
“37. In case it may be held that my conclusion on jurisdiction is wrong, I should consider the parents’ appeal against the order of 10 March 2004 striking out their appeals on the ground that they were vexatious. I can deal with this quite shortly. The authorities which I have cited show that an appeal will not be vexatious on the ground that there has been a previous appeal if, and I put it very shortly, there is new material which the Tribunal is asked to consider in support of the second appeal which is sufficiently different to justify a further hearing. I am quite satisfied that there was such material here. The main thrust of the new material was that the A school could not in fact provide what it had been thought that it could provide, that having been discovered by the attendance of K and S at the school since the first appeals were concluded, and that the school was not in fact suiting K and S. That is what emerges from the matters set out in the Notices of Appeal. It seems that the Tribunal did not take account of this in striking out the appeals as an attempt to re-litigate matters determined at the previous appeal. In my judgment it was wrong to strike out the appeals on that ground. This mainly relates to Part 4 and the nomination of the A school. If it washes over into Parts 2 and 3 the parents’ appeal would not be vexatious in so far as it also relates to Parts 2 and 3. But I would not fault the Tribunal’s decision to strike out the appeal in so far as it sought to reopen the matters in Parts 2 and 3 which on the previous appeal had been agreed between the authorised representatives of the parties. In that respect the decision of the Tribunal was right.”
If the Respondent LEA is right that the tribunal had no jurisdiction to entertain the appeal, then, in my view, we do not need to consider the parents’ appeals against the findings that their appeal against the amended statement was vexatious.
The relevant statutory provisions are found in Chapter 1 entitled ‘Children with special educational needs’ in Part IV of the Education Act 1996 as amended.
Section 323 of the Act provides that where a local education authority is of the opinion that a child has special educational needs and that it is necessary to determine the special educational provision which any learning difficulty he may have calls for, the authority shall serve a notice on the parents and, after taking into account any representations made and evidence submitted in response, shall make an assessment of his educational needs. Section 324 provides that, if it is necessary in the light of a section 323 assessment for the authority to determine the special education provision which any learning difficulty the child may have calls for, the authority shall make and maintain a statement of his special educational needs, what I have called a SEN statement.
Section 326 of the Act provides for a right of appeal in respect of the making and maintaining of a SEN statement. As amended and so far as material it provides:
‘326(1) The parent of a child for whom a local education authority maintain a statement under section 324 may appeal to the Tribunal –
(a) when the statement is first made,
(b) if an amendment is made to the statement, or
(c) if, after conducting an assessment under section 323, the local authority determine not to amend the statement.
(1A) An appeal under this section may be against any of the following –
(a) the description in the statement of the local education authority’s assessment of the child’s special educational needs,
(b) the special educational provision specified in the statement (including the name of a school so specified),
(c) if no school is specified in the statement, that fact.
(2) Subsection (1)(b) does not apply where the amendment is made in pursuance of –
(a) paragraph 8 (change of named school) or 11(3)(b) (amendment ordered by the Tribunal) of Schedule 27, or
(b) directions under section 442 (revocation of school attendance order);
and subsection (1)(c) does not apply to a determination made following the service of notice under paragraph 10 (amendment by ) of Schedule 27 of a proposal to amend the statement.
(3) On an appeal under this section, the Tribunal may –
(a) dismiss the appeal,
(b) order the local authority to amend the statement ……
(c) order the authority to cease to maintain the statement
(4) …. .
(5) …. .’ (Underlining added)
In this case the Tribunal ordered “the local authority to amend the statement” in so far, only, as Parts 2 and 3 were concerned to reflect the agreements reached by the parents and the LEA.
Mr Friel relied on Schedule 27 of the Act. Paragraph 2A provides that a LEA shall not amend a statement except in the circumstances there outlined, which include “in compliance with an order of the Tribunal”. Paragraph 2B(1) provides that having made an amended statement in accordance with paragraph 2A, a copy “of the proposed amended statement” shall be served on the parent. Paragraph 2B(2) provides that the authority must also serve a notice explaining, amongst other things, “the right to appeal under section 326, but only “to the extent that they are applicable”. The underlined words destroy Mr Friel’s argument in so far as Schedule 27 is concerned and nor is it saved by the provisions in the Regulations regarding the form of the notice.
Jack J summarised the arguments about jurisdiction which were presented to him and have been renewed before us:
“21. The argument in favour of the Tribunal’s jurisdiction to hear the parents’ appeals is that the statements served on 19 June 2003 were amended statements and therefore came within section 326(1)(b). They were amended in respect of aspects of Parts 2 and 3. Part 4 was not amended but remained unchanged. It might be thought that where there is a right of appeal by reason of an amendment the appeal should be limited to the amendment. But that construction seems to me to be contradicted by section 326(1A), which does not limit what may be appealed against in that way.
22. The argument that there was no right of appeal to the Tribunal against a statement which was amended by order of the Tribunal made on an appeal to the Tribunal is that such an appeal would be an appeal to the Tribunal against the Tribunal’s own order, and that would be a nonsense and cannot have been the intention of Parliament. Support for this construction was sought in section 326(2), in particular in the exclusion of amendments ordered under paragraph 11(3)(b) of Schedule 27.
Jack J then summarised the provisions of section 326(2), which exclude certain appeals:
“(a) By section 326(2)(a), firstly there is no right of appeal against the amendment of the description of needs or special education provision in a statement where the amendment is made under paragraph 8 of Schedule 27. Such an amendment will have been initiated by the request of the parent to substitute for the name of the school in the statement the name of a maintained school specified by the parent – paragraph 8(1). If the amendment is made, it would make no sense for the parent to appeal against the amendment made at the parent’s request. If the request is refused, paragraph 8(3) of the Schedule gives a right of appeal to the parent.
(b) By section 326(2)(a), secondly there is no right of appeal against the amendment of the description of needs or special education provision in a statement where the amendment is made under paragraph 11(3)(b) of Schedule 27. Paragraph 11(2)(b) gives a parent a right of appeal to the Tribunal where a local education authority determines to cease to maintain a statement. By paragraph 11(3) on such an appeal the Tribunal may (a) dismiss the appeal, or (b) order the authority to maintain the statement in its existing form or with amendments as provided for in the paragraph. An appeal to the Tribunal against a statement which is amended in consequence of the Tribunal’s order would make no sense. The situation is in this respect the same as that in the appeals in the present case, but there is an express exclusion of the right of appeal.
(c) By section 326(2)(b) there is no right of appeal against the amendment of the description of needs or special education provision in a statement where the amendment is made pursuant to directions under section 442. Section 442 enables a parent to apply to a local education authority to request the revocation of a school attendance order. If the authority refuses, the parent may refer the question to the Secretary of State, who shall give such direction determining the question as he sees fit. Where the child is one for whom there is a statement under section 324, by section 442(5)(a) there is no right to request the local education authority to revoke the order if the name of a school is specified in the statement. By section 442(5)(b), in any other case where there is a statement the Secretary of State’s direction may require the authority to amend the statement. It is amendments made pursuant to such a direction in respect of which there is to be no right of appeal to the Tribunal. The reason must be that the appeal route under section 442 is in effect to the Secretary of State, and where he has determined the matter by ordering an amendment to a statement there should be no second appeal to the Tribunal.
(d) By the latter part of section 326(2) there is no right of appeal against a local education authority’s decision not to amend a statement where the determination follows service of a notice by the authority of its proposal to amend a statement under paragraph 10 of Schedule 27. If the authority then decides not to amend the statement following representations by the parent, it would make little sense for the parent to be able to appeal.” (Underlining added)
Jack J concluded:
“Section 326(2) is hardly transparent but it does show the draughtsman taking care to exclude what might be called nonsensensical appeals.”
Jack J then referred to the submission on behalf of the LEA that the express exclusion of the right of appeal where an amendment follows an order of the Tribunal made under paragraph 11(3)(b) of Schedule 27 supported its case that there was no right of appeal where an amendment was ordered by the Tribunal under section 326(3).
Jack J continued:
“24 ... It seems to me that this argument can be run either way. For unless a reason can be found for excluding the right expressly in the former case which leaves it unnecessary to exclude it expressly in the latter case, the absence of express exclusion in the latter case suggests that no exclusion was intended. Miss Busch submitted on behalf of the LEA that there was such a reason. It was, she said, that the right of appeal to the Tribunal which may result in a paragraph 11(3)(b) amendment is given by paragraph 11 itself and not by section 326. So she, submitted, it was seen necessary to exclude those amendments from section 326(1): in contrast, because the right of appeal which led to a 326(3)(b) amendment was given by section 326 itself, it was not seen necessary to exclude a ‘second’ appeal by express words, it being obvious that there could be no such right. Counsel for the Tribunal and counsel for the parents could not suggest any reason why as a matter of policy there should be a distinction as to appeal between amendments made pursuant to orders of the Tribunal under section 326(3)(b) and amendments made pursuant to orders of the Tribunal under paragraph 11 (3)(b). Nor can I see any.”
Unless constrained by authority to find otherwise, it seems to me that the legislative scheme must be interpreted in a purposive manner- to give a party to proceedings before the Tribunal the right to appeal a statement which has been amended by order of the Tribunal would defeat the purpose of the scheme. The Tribunal’s decision is final subject to any review (to which I return later) and subject to an appeal to the High Court. It would, in my view, be extraordinary if there was a right to appeal to the Tribunal an amended statement, the amendments to which the LEA had been ordered to make by the Tribunal. An amendment agreed by the parties as necessary, however trivial, would trigger a right of appeal to the Tribunal, whereas a decision by a Tribunal to uphold a statement in its entirety would not trigger an appeal.
Jack J set out the remedies available to parents where there has been a change of circumstances:
“34. Under the scheme of the Act apart from any appeal against a statement ordered by the Tribunal there are three remedies available to a parent who loses an appeal and who has fresh material. First there is the question of a review under regulation 37 on the ground that the interests of justice require it. But, subject to any extension of time under regulation 51 (where exceptional circumstances must be shown) this must be applied for within 10 working days of when the decision of the Tribunal was sent to the parties. Secondly, a parent of a child for whom a statement is maintained has a right under section 328 to ask for an assessment to be made and the authority must comply if no assessment has been made within 6 months of the request and a further assessment is necessary. There is a right of appeal against refusal. Thirdly it is very likely, given the time an appeal to the Tribunal may take to be concluded that the 12 month period provided for review of statements by section 32(5) will be drawing near. That was the case here, and, as I have stated, the parents could have appealed against the maintenance of the statement in its unamended form a short while after they launched their second appeals to the Tribunal. These alternatives suggest that there is little need for a right of appeal as the parents and the Tribunal contend.”
A little later he said, and I agree:
“35. ... In my judgment it is most unlikely that Parliament would have intended to give a right of appeal to the Tribunal against a statement issued pursuant to the order of the Tribunal. In my view that is confirmed by the exclusion of a right of appeal against a statement ordered by the Tribunal pursuant to paragraph 11(3)(b) of Schedule 27. I can conclude that there is not a similar exclusion in relation to section 326 (3)(b) because the draughtsman did not consider it necessary, it being obvious that there should not be an appeal to the Tribunal against a statement ordered by the Tribunal itself. I think that the reason why the paragraph 11(3)(b) is dealt with in the section expressly is that the primary right of appeal is not contained within the section but is provided by paragraph 11(2)(b) of the schedule. I conclude therefore that section 326(1)(b) does not include an amendment made by order of the Tribunal.”
I turn to the authorities. We were taken through them by Mr Friel. There is no previous case in which it has been held that there is a right of appeal in the circumstances of this case. White v Aldridge and London Borough of Ealing [1999] ELR 150 (CA) proceeded on the assumption that there was right of appeal, but the point was not considered. R (on the application of A) v London Borough of Lambeth, Ouseley J, 23 May 2001 also proceeded on the same assumption. That case concerned a decision to strike out an appeal against a statement amended, as in this case, by order of the Tribunal. Ousely J upheld the Tribunal’s decision to strike out because it was an attempt to re-litigate the issue determined by the first appeal. There were no changes in personal circumstances, nor were there changes in the assessments by the psychologists as to the special educational needs of the child. Ousely J did say:
“27 ... There is a right of appeal in s.326 of the Education Act somewhat surprisingly in these circumstances, and the opposite has not been contended.”
Mr Friel relied on R v Clwyd County Council ex parte A [1994] 1 FCR 334 which was concerned with the provisions of the Education Act 1981. By section 8(4) of that Act:
‘8(4) An appeal committee hearing an appeal by virtue of this section may –
(a) confirm the special education provision specified in the statement; or
(b) remit the case to the local education authority for reconsideration in the light of the committee’s observations.’
Following an appeal the appeal committee remitted the case to the local authority for reconsideration. The parents remained dissatisfied. The authority informed the parents that they had a right of appeal to the Secretary of State as provided for by section 8(6) of the Act but refused them a further appeal to the Committee. The parents successfully applied for judicial review of the decision not to permit the parents to appeal. Section 8(1) provided for appeals in these terms:
‘8(1) Every local education authority shall make arrangements for enabling the parent of a child for whom they maintain a statement under s.7 to appeal against the special educational provision specified in the statement –
(a) ...
(b) where the authority make any amendment to the special educational provision specified in the statement otherwise than on the making of any such assessment.’
In the course of his judgment Simon Brown J. stated at page 339:
‘This class of case, the argument runs, is expressly provided for by s.8(6)(b). It is not to be supposed that Parliament in 1988 could have intended to create in these cases a fresh right of appeal back to the committee. That, argues Mr Cavanagh would be neither a “consequential” nor a “minor” amendment to the 1981 legislation. Accordingly, submits counsel, s.8(1)(b) must be construed so that the phrase “any amendment” is held to mean “any amendment save an amendment made upon reconsideration of the case by the L.E.A. under the provisions of s.8(4)(b) and 8(5), because that attracts a specific right of appeal to the Secretary of State under s.8(6)(b)”.
…..
Powerfully although these arguments were advanced and formidable though I recognize to be the underlying contention that Parliament cannot readily be supposed in 1988 to have intended to bring about the choice of avenues of appeal contended for by the applicant, I nevertheless feel driven to hold that they did bring about such a choice. In short, this case offers an example of Parliament in fact achieving by the use of plain language something other than was no doubt intended. I can find no ambiguity whatever in s.8(1)(b), no secondary meaning upon which canons of construction can be brought to bear.
Nor, I may add, do I accept that there exists here anything in the way of inconsistency or repugnance between the two avenues of appeal I find to be open in this particular class of case.
……
Accordingly, I see no sufficient reason for construing s.8(1)(b) otherwise than as it straightforwardly reads, nor for reading into it words of restriction which are conspicuously absent. Despite my very real doubts as to whether the draftsman intended by s.8(1)(b) that which I conclude he has achieved, I am in the result simply not permitted to distort the provision as the L.E.A. here have invited me to do.’
As Jack J rightly pointed out:
“27 ... It is of importance that under this Act the appeal committee had no power to order a local education authority to amend a statement: the form of the revised statement was left to the authority. Simon Brown J stated at page 40G: ‘… the Secretary of State can himself amend the statement as he thinks appropriate. This is in marked contrast to the role of the appeal committee whose decisions in no way bind the L.E.A.’ This is to be contrasted with the position under the 1996 Act.”
Mr Friel relied on that decision and submitted that it must have been in the minds of the draftsman when drafting the 1996 Act. Because of that decision, so he submits, there was no specific exception to cover the instant situation. That would only be right if the draftsman misunderstood the difference between a Tribunal decision requiring the LEA to reconsider (under the 1981 Act) and a Tribunal decision requiring the LEA to amend the statement (under the 1996 Act). That seems unlikely.
Mr Friel also referred us to paragraph 77 of the judgment of Jonathan Parker LJ in The Queen on the application of MH v. the Special Educational and needs Tribunal [2004] EWCA 770. I found no assistance in that paragraph.
Jack J clearly and, in my view, correctly summarised the authorities cited to him in this way:
“33. The position on the authorities is thus as follows. In Clwyd it was held on different statutory provisions that there was an appeal following the issue of a revised statement after a case had been remitted by the appeal body. This has some analogy with the position under section 325 as analysed in O. There Waller LJ stated that ‘If power is given to an appellant body to remit a decision of a first instance body for reconsideration, it makes very little sense to contemplate that the appellant authority should not have the power to review the reconsidered decision.’ The opposite is the case where the first instance body is not to reconsider but to issue a document in the form decided by the appellant body. The question of jurisdiction could have been raised but was not raised in White v Aldridge. It is interesting that when the then applicable regulation was set out the reference to lack of jurisdiction was not included. The point raised its head before the Tribunal in Glasner [Glasner v South Gloucestershire Council[2000] ELR 136] but clearly could not in any event succeed in the circumstances of that case. In A thepoint as to jurisdiction could have been taken but was not. Ouseley J stated that surprisingly there was jurisdiction: he did not hear argument. ”
There is in my view nothing in the authorities to cast doubt on my conclusion that there is no right of appeal to the Tribunal against a statement amended in accordance with the directions of the Tribunal.
Mr Auburn’s written submissions on behalf of the President of the Tribunal gave me cause for concern about the correctness of my conclusion. He wrote:
“In particular the [Tribunal] is anxious that this Court has a full awareness of the options available to parents of children with special educational needs who are faced with a sudden change of circumstance affecting their child. The Court should also be sensitive to the timescales involved in reassessing a child’s special educational needs; and in bringing appeals to the [Tribunal] as these factors have a very great effect on the utility of the alternative procedures which influenced the learned Judge ... at paragraph 34 of his decision [which I have set out in paragraph 27 above]. The matter of most concern to the [Tribunal] is that the procedure for reassessments is lengthy and may not be an effective means of quickly adjusting to the rare exceptional case of a sudden change in circumstances occurring after a Tribunal appeal has been determined and which significantly undermines the decision just made.”
Mr Friel supported the proposition that the re-assessment procedures take a considerable period of time (although in theory they do not need to do so). Mr Auburn continued:
“42. Where the parents of a child with special needs seek to react to an important change of circumstances, or a new development or new information, by quickly bringing the case back to the Tribunal in a manner within the disputed jurisdiction, then it is vitally important to bear in mind the subject matter of these cases, being the educational well-being of a child with special educational needs, and the need to approach each such decision with care, discretion and flexibility: R (A) v London Borough of Lambeth[2001] EWHC 379 (Admin), [2002] ELR at [24].
43. Statutory procedures for determining issues relating to the special needs of children may be radically different from, say, procedures for determining commercial disputes. The two should not be approached with the same mindset; and it is highly unlikely Parliament would have approached the two with the same mindset.
44. The [Tribunal] regards the relative speed and flexibility offered by this jurisdiction as a valuable potential tool in providing a quick and effective resolution of a child’s special educational needs where a significant change of circumstance has occurred after a Tribunal decision. The emphasis on maximum flexibility and sometimes speed in resolving disputes over changes to a child’s statement of special needs may mean that sometimes the history of how that amendment by the LEA to the statement came about may be of secondary importance to the primary and urgent need to resolve the matter in the interests of the child. In any battle between the interests of a child with special needs and the interests of the neatness of a procedural structure the child should win out.”
Mr Auburn submitted:
“45. The [Tribunal’s] general view of the disputed jurisdiction is that the existing arrangements were not broken, and did not need to be fixed.
46. The jurisdiction now disputed, once recognized by White v Arlidge in 1998, did not give rise to a flood of vexatious claims; was not an excessive burden on the Tribunal; and any potential abuses were adequately dealt with by the power to strike out vexatious claims.
47. The LEA fears that the disputed jurisdiction could give rise to a continuous loop of appeals. This has not been [the Tribunal’s] experience of the period for which this jurisdiction has been recognized and exercised. ...”
For my part whilst accepting the force of these submissions, they run up against a formidable obstacle: if the Tribunal is right that permitting the parent to appeal an amended statement ordered by the Tribunal is necessary to deal with changes of circumstances for which the alternative processes are, in practice, unwieldy or unworkable, then why should the “accident” of success before the Tribunal provide the gateway whereas failure does not.
Mr Auburn’s submissions have not altered my conclusion that there is no right of appeal to the Tribunal against a statement amended in accordance with the directions of the Tribunal.
We were told during the hearing that the review provisions are rarely invoked (not surprisingly given the time limits and the fact that most parents are unrepresented) and that the power to seek an extension of time in which to apply for a review has, so it seems, never been used. Given that review may be undertaken if “the interests of justice require”, this seems to me to be the appropriate way of dealing with the kinds of cases which trouble the Tribunal. The review procedure has the great added advantage that it is also available to a parent who has failed before the Tribunal. Success in an appeal would not be the only gateway for dealing with a change of circumstances. The existence of the review procedure fortifies me in my conclusion that the Tribunal had no jurisdiction to hear this appeal.
For these reasons I would dismiss the appeal from the decision of Jack J. It follows that it is unnecessary to decide whether the Tribunal rightly concluded that the appeal was vexatious. I would make it clear however that I am not endorsing the views of Jack J that there was material to justify a further hearing and I would further make it clear that I would hope that there will not now be any attempt to seek a review out of time the May 2003 decision, given, in particular, that it is the LEA and not the Tribunal which has the primary role of ensuring that the special educational needs of the children for whom they are responsible are catered for.
At the conclusion of the hearing, we asked the parties to submit any observations they might wish to make about the circumstances in which the review procedure should properly be used. We have been sent a considerable quantity of documents including a Guidance issued in May 1996, about which we had not heard during the hearing. The parties ask for clarification of the appropriate means to challenge a refusal to extend time. In my view it would not be appropriate for this Court to give such clarification in the present case. As to the use that can properly be made of the review procedure particularly after the expiry of the short periods referred to in Regulation 37, the appellant and the respondent have substantially different views. In those circumstances it would, in my view, be unwise for the Court to give any general guidance. I shall limit myself to two comments. First it is important to record that the President of the Tribunal accepts that “the ‘interests of justice’ ground does encompass matters arising after a SENDIST hearing, including a fundamental change of circumstances, even absent any error or manifest flaw in the decision itself.” That accords with the arguments advanced during the hearing by counsel on her behalf (see paragraphs 37-40 above). My other comment relates to the phrase “exceptional circumstances” in Regulation 51 and the use of that phrase (or similar) in the written submissions made on behalf of the President and of the Respondent. To the extent to which the phrase tells the reader that the power to extend time is likely, in practice, to be exercised only rarely, it is of help. However, it offers little help to the decision-maker (or to the reader) as to what are the circumstances in which an extension of time will be granted. The questions remains: “What are the exceptional circumstances in which the President will allow an application for a review under regulation 37 to proceed out of time?” No doubt guidance from the President as to how she is likely to exercise her power to extend time would be helpful to those who use the Tribunal, as would consultation with them before any guidance is issued.
Lord Justice Jacob: I agree.
The President: I agree.