LT and DT v City & County of Cardiff & Anor

The Appellants are the parents of a male child born 10 May 1992. I will call the child T. At the hearing which took place before me on 27 September 2007 I made an order that the Appellants should not be referred to by name so as to protect the identity of their child. T has special educational needs. On 28 September 1995 the First Respondent (or, more accurately, its predecessor local authority) made a statement of special educational needs in respect of T. At that time, of course, T was about 3 ½ years old.

A statement of special educational needs was maintained throughout T’s attendance at primary school and also when he became of an age to attend a secondary school.

T attended secondary school for the first time in September 2003. However, the Appellants were not content that the school which he then attended was suitable for his needs. In or about April 2005 they requested a re-assessment of T’s needs.

The First Respondent issued a draft statement of special educational needs on 15 August 2005. The Appellants responded in detail to the proposed statement. Despite the Appellants’ responses, however, the First Respondent issued a final Statement on 8 May 2006 and in that final statement it named as the secondary school which T should attend the school which the Appellants considered unsuitable.

The Appellants appealed to the Special Educational Needs Tribunal for Wales. In effect, that is the Second Respondent to this appeal. Before the appeal could be heard the First Respondent decided to alter the statement of special educational needs by designating a different school as the school at which T should attend. In consequence the Appellants withdrew some aspects of their appeal to the Second Respondent. However, there remained outstanding issues. In consequence the appeal to the Second Respondent continued in respect of those outstanding issues.

The hearing of the appeal took place on 8 November 2006. The result of the appeal was that it was dismissed. Additionally, however, the Second Respondent ordered that the First Respondent should cease to maintain a statement of special educational needs for T.

Either party to an appeal before the Second Respondent has a right to appeal to this Court on a point of law. Such an appeal must be brought within 28 days of the date of the notification to the parties of the result of the appeal.

The Second Respondent can also review its decision either upon application or of its own motion.

On 5 December 2006 the Appellants wrote to the Second Respondent indicating their intention to appeal against the decision 23 November 2006. The letter ran to 9 ½ pages of close typescript in which the Appellant took issue with a large number of points made by the Second Respondent in its decision of 23 November 2006. It also took issue with some of the things that had happened at the hearing of the appeal. One of the things that had happened at the hearing to which the Appellants took exception was that the Second Respondent of its own motion raised the issue of whether there should be a statement of special education needs in respect of T at all. The Appellants also took exception, of course, to the decision of the Second Respondent that the First Respondent should cease to maintain a statement.

The letter of 5 December 2006 was treated by the Second Defendant as a request for a review. So much is clear since on 22 December 2006 the Second Respondent wrote to the Appellants indicating that it had granted a review “in relation to the issue of whether or not the LEA should be directed to cease to maintain the Statement”.

Obviously, however, this letter was not received by the Appellants until after the time for bringing an appeal to this Court. It was because there had been no reply to the letter of 5 December, according to the Appellants, that they launched these proceedings in the Administrative Court in Wales on 20 December 2006.

The Second Respondent’s letter of 22 December 2006 asked the Appellants to forward dates of availability for a hearing of the application for review between 5 February and 30 March 2007. Ultimately, as I understand it, the application for a review took place on 5 February 2007.

It is to be noted that prior to this date the First Respondent had written to the Administrative Court indicating that it did not intend to participate in these proceedings. It seems to me to be reasonable to infer that it did not consider that it was possible to uphold the decision of the Second Respondent to the effect that it should cease to maintain a statement in respect of T.

On 5 February 2007 the application for a review was heard. The result was that the application for review was granted and an order was made that the appeal which had been launched by the Appellants to the Second Respondent in respect of their son’s statement of special educational needs should be reheard before a differently constituted panel.

I should record in this judgment the substance of the Second Respondent’s reasons for allowing the application for review. It is expressed in the following paragraphs of its decision of 6 February 2007.

“The tribunal has considered this application in detail and concludes that the appellants were given a fair and full hearing. The purpose of a review is not a procedure to reconsider the evidence where a party disagrees with the decision of the tribunal. The tribunal at the hearing considered all the evidence that was before it and came to a decision on the basis of that evidence. On reviewing the evidence and the original decision we conclude that there was no obvious error in the decision and neither was it reached on any radically flawed basis of fact.

Although the tribunal’s powers in considering the appeal were explained to the parties at the beginning of proceedings and that the issue of ceasing to maintain the statement was raised by the tribunal during the hearing, the tribunal accepts that given the fact that neither party had anticipated the raising of this issue either prior to or during the hearing, an adjournment should have been allowed to enable the appellants in particular to consider their position. On that basis alone the interests of justice require that the decision of the tribunal be reviewed.”

Notwithstanding this decision the Appellant wrote a further detailed letter to the Second Respondent dated 12 February 2007. In summary this constituted a complaint about aspects of the decision to grant a review.

On 15 February 2007 the Treasury Solicitor, acting on behalf of the Second Respondent, wrote a letter to the Appellants. It is a letter which was written “In order to suggest a sensible way of progressing these matters.” The letter went on to indicate that Second Respondent was endeavouring to list the Appellant’s appeal in late March and the letter continues: -

“As you will appreciate, the nature of a re-hearing means that your appeal against the contents of your son’s statement of special educational needs will be heard and considered afresh, by different members of the Tribunal to those who took the November decision. This differently constituted Tribunal will make a fresh decision and will not have regard to the original decision. The Tribunal will not place a copy of the November decision in the bundle of papers that will go before this differently constituted Tribunal. If, after receiving that decision, you consider that there is a material point of law in issue, you may appeal to the High Court in accordance with the provisions of Part 52 of the Civil Procedure Rules, and section 11 of the Tribunals Enquiries Act 1992.

In light of the fact the review process will provide you with the remedy that you are seeking from the High Court – which you have identified at section 7 of your Appellants’ Notice as a setting aside of the November Decision and the ordering of a “new trial” – I invite you to withdraw your High Court appeal…….. In the event you agree, please find enclosed draft Consent Order for your consideration and approval. As you will see, this provides for the appeal to be withdrawn and that there be no order for costs.”

Quite shortly after this letter was written by the Treasury Solicitor the President of the Second Respondent wrote a long letter to the Appellant. That is a letter dated 23 February 2007. It dealt in detail with the letter written by the Appellant of 5 December 2006 and subsequent matters, including their letter of February 2007. It ended by assuring the Appellants that the newly constituted panel of the Second Respondent at the re-hearing would consider only T’s particular needs and their extent. It also assured the Appellants that unless they themselves or the First Respondent introduced the same, the decisions made by the Second Respondent on 23 November 2006 and 5 February 2007 would not be before the panel. I should also record that the letter also constitutes a robust defence to the many and various complaints which the Claimants had raised in previous correspondence.

The Appellants’ response was to write to the Administrative Court in effect informing the Court that it might be necessary to change the basis of the appeal commenced on 20^th December 2006.

On 23^rd March 2007 the Appellant wrote to Ms Nicholson, a lawyer at the Administrative Court. The letter informed Ms Nicholson that the Appellants had received a letter from the Second Respondent on that day in which the Second Respondent informed the Appellant that they had quashed the decision of 23 November 2006. In the light of that the Appellants sought “the assistance of the High Court to determine the provision of the statement of special educational needs as the Tribunal has shown itself to be unable to provide a fair hearing or to make fair decisions”. The letter indicated that the re-hearing before the Second Respondent was fixed for 30 March 2007 and it also informed Ms Nicholson that the Second Respondent’s solicitor had suggested that “by agreeing to a re-hearing,…., they should not have to pay our costs”.

For reasons which are not germane to these proceedings the Appellants did not pursue their appeal on 30 March 2007.

On or about 13 April 2007 the Appellants received a letter from the Second Respondent’s Solicitor which enclosed a draft consent order for bringing these proceedings to an end. The suggestion was made, again, that each party should bear their own costs of the proceedings. On 29 April 2007 the Appellants replied to the Second Respondent’s Solicitor in which they indicated that such a course was not acceptable.

Since that date the only issue remaining in these proceedings has been the question of costs. I say that since it is acknowledged by everyone, including the Appellants, that once the Second Defendant acceded to the application for review, ordered a re-hearing and, ultimately quashed its decision of 23 November 2006 no further substantive relief was available to the Appellants in this appeal.

To all intents and purposes the Appellants have been successful in their appeal against the decision of 23 November 2006. As I have said that decision has been quashed and the Second Respondent would have conducted a fresh hearing of the Appellants’ appeal had the Appellants not withdrawn it. At first blush, therefore, it would seem appropriate that the Appellants should recover their costs of this appeal.

The Appellants have never sought an order for costs against the First Respondent. No doubt, in their eyes, the First Respondent was not responsible for the “errors” which the Appellants allege occurred in the hearing in November 2006. Clearly, the First Respondent was not responsible for the decision by the Second Respondent to order the First Respondent to cease to maintain a statement. It is common ground that that occurred solely at the instigation of the Second Respondent.

The Appellants have always asserted that their costs should be paid by the Second Respondent. Equally, as is obvious from the narrative above, the Second Respondent has resisted that suggestion. It has done so on the basis that it is unusual for the Administrative Court to make an order for costs against an inferior Court or Tribunal when that Court or Tribunal has made the decision under appeal. The Second Respondent relies, in particular, upon the decision of the Court of Appeal in R (on the application of Davies) v The Birmingham Deputy Coroner [2004] 3All ER 543.

In that case the Claimant, who was legally aided, applied for judicial review of the verdict of a Coroner’s Inquisition presided over by the Defendant Deputy Coroner. The Judge found in favour of the Deputy Coroner, ruling correctly according to the law as it then stood. The Claimant appealed. By the time the appeal was heard, the law has changed in significant respects. Although it was open to the Deputy Coroner not do so he appeared on the appeal. The appeal was allowed and the Claimant applied for the costs both of the hearing below and of the appeal. The Court of Appeal ordered that there should be no order for costs in respect of the hearing at first instance but that the Deputy Coroner should pay the costs of the Claimant in respect of the appeal to the Court of Appeal.

The principal judgment was given by Brooke LJ. His judgment consists of a wide ranging review of a large number of authorities dealing, in particular, with the circumstances in which a coroner should be held liable in costs when a decision at an inquest over which he has presided is the subject of a challenge to the High Court. Brooke LJ’s review as to the practice adopted in relation to costs concerned not just the practice at first instance but in the Court of Appeal. As was inevitable, however, in relation to such a wide ranging review, Brooke LJ did not confine himself to the issue of when a coroner might be liable in costs. He considered the position of inferior courts and tribunals more generally.

In relation to inferior courts and tribunals Brooke LJ concluded the established practice of the Administrative Court is to make no order for costs against these bodies if they did not appear at the challenge in question to oppose the appeal. He identified two exceptions to this general position. One such exception was where there was flagrant improper behaviour on the part of the inferior court or tribunal. The second was when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings. He further concluded that the established practice is to treat an inferior court or tribunal which resists an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party so that in the normal course of things costs will follow the event. I derive these principles from paragraph 47 of his judgment. Longmore LJ and Sir Martin Nourse agreed with the judgment of Brooke LJ.

Nothing has occurred, so far as I am aware, since the judgments in R (Davies) v The Birmingham Deputy Coroner to undermine the views expressed the Court in that case.

It follows that my decision in relation to the costs of these proceedings must depend upon an application of the principles in the Birmingham Deputy Coroner’s case to the facts of the instant case.

The Second Defendant has never participated in these proceedings in the sense of actively opposing the relief sought in these proceedings. So far as I am aware it has never served an Acknowledgement of Service. In summary, it took the view, very early on in the life of these proceedings that it would entertain an application for a review of its decision and when that application was heard it granted a review. In my judgment the reality is that since the decision of 5 February 2007 at the earliest or late March when, as I accept, the Second Defendant quashed its decision, at the latest, there has been no prospect that the Appellants can obtain any substantive relief in this case over and above that which, in fact, they had been afforded.

It does not seem to me that I could possibly order the Second Respondent to pay the costs of the Appellants on the basis that they had actively engaged in and opposed the Appellants’ appeal.

It follows that the only other rule, conventionally, by which an order for costs can be made against the Second Respondent is if I conclude that it was guilty of improper behaviour of a flagrant kind.

I say at once that it was most unfortunate that the Second Defendant, of its own motion, began an investigation of whether it should order the First Respondent to cease to maintain a statement of special educational needs in the manner that it did. To repeat, that was not an issue raised by the First Respondent in advance of the hearing of the appeal. The Appellants were not legally represented at the appeal and it was not appropriate to “spring” this issue upon them at the hearing without prior notice. Further, in my judgment, if the Second Respondent really did think it was necessary to determine the issue of whether a statement should exist or not fairness demanded that it should have adjourned the hearing allowing the Appellants sufficient time to deal with such a fundamental point.

That said, there is no possible basis to conclude other than that the Second Respondent did what it did believing that it was the appropriate course. There is absolutely no basis, in my judgment, to conclude that the Second Respondent set out in some way to be unfair to the Appellants. In short it was guilty of what I characterise as an error of judgment.

That being so I do not think it would be appropriate to conclude that the Second Respondent was guilty of improper behaviour of a flagrant kind thereby rendering itself liable for an order for costs against it on the basis of its behaviour in raising and resolving the issue of whether a statement should exist.

I appreciate, of course, that in correspondence the Appellants have made many more complaints about the Second Respondent and its decisions than just those relating to the issue of whether a statement should exist. Equally, the Second Respondent and its advisors have robustly dismissed such complaints. It is simply impossible for me to determine whether or not the complaints made by the Appellants are justified within the confines of the normal procedures adopted in this court. A full scale investigation would be necessary which would be so time consuming and expensive so as to be totally disproportionate to the amount of costs at stake.

That said, I appreciate that, in fact, the Appellants have incurred some legal costs and, further, expended a great time and effort through no fault of their own. This Court, (and its predecessor Courts) time and time again has pointed to this anomalous situation and questioned, sometimes in forthright terms, why it is that no order can be made to the effect that persons in the position of these Appellants be indemnified in respect of their costs from public funds. I add my name to the list of judges who have expressed frustration that such an outcome is not possible.

As things stand, however, I am not in a position to make an order that the Appellants be paid their costs from public funds. For the reasons I have explained I cannot justify making an order for costs against the Second Respondent. Accordingly I decline to do so.

These proceedings are now at an end. It seems to me that the appropriate order to make is that the appeal is dismissed with no order for costs. By dismissing the appeal, however, it should not be thought that I am in some way resiling from the position I stated above which is to the effect that the Appellants achieved all that they could in terms of substantive relief from these proceedings.

I propose to hand down this judgment in London at 10am 9 November 2007. There need be no appearance by any party. If the Appellants wish to apply for permission to appeal against my judgment they should submit to my clerk a document in which they set out their reasons for seeking permission. The document should be sent to my clerk by 4pm 8 November 2007. I will incorporate my decision on permission into the order consequent upon this judgment.