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• 14 Feb 2022

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  No. The FTT does not just decide between competing positions and competing evidence. The FTT “stands in the LA’s shoes, re-evaluating the available information in order if necessary to recast the statement [EHCP]”: LB Bromley v SENT [1999] ELR 260.

  “… if there was inadequate information [about the proposed school placement], the FTT should have taken the necessary steps to obtain it, if necessary adjourning to do so. Tribunals, it seems to me, cannot proceed on a purely adversarial basis, but have a duty to act inquisitorially, when the occasion arises by making sure they have the necessary information on which to decide the issues before them, rather than rely entirely on the evidence adduced by the parties. The FTT will usually have much greater expertise than the parents who appear before them”: W v Gloucestershire CC [2001] EWHC Admin 481 #15. See also J v SENDIST and Brent [2005] EWHC 3315#32 and MW v Halton BC [2010] UKUT 34 #36. 

  Where there is a crucial disagreement between experts and “the dispute involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over another”: Hampshire CC v JP [2009] UKUT 239 (AAC)#39.

  It was impermissible for the FTT to decline to make findings on an issue subject to competing expert reports on the basis that “the contents of the reports had not been agreed and the subject matter…was highly technical” (here evidence on acoustics) – the FTT should have decided how to resolve the issues: RB Kensington & Chelsea v CD [2015] UKUT 396 #31.

  The FTT’s inquisitorial role remains. The powers of the FTT are now set out in Regs2014 r43. Sometimes there will be a tension between limiting an appeal to issues in dispute and the positive obligation that facts have been properly found. In this situation the overriding objective should be applied, and for example where evidence has not been provided an adjournment is not inevitable (including taking into account whether the cost and delay of an adjournment is justified, whether the evidence is needed for the parties to participate fully, whether the tribunal’s special expertise would assist, and whether the parties have provided all the evidence available to them): DH & GH v Staffordshire CC [2018] UKUT 49 (AAC) #22-25.

  In A J v. LB of Croydon [2020] UKUT 246 (AAC) #151, the UT doubted there was a “burden of proof” as such in the inquisitorial jurisdiction, but if there was, it fell to the LA to demonstrate a placement a child was attending was no longer suitable. Where the LA had not provided positive evidence that the parental evidence was unsuitable, but the LA took that position in the hearing, the FTT ought to have adjourned for further evidence: “The overarching question which the FTT had to consider in this context was whether there was sufficient evidence on which it could properly decide the appeal. If it does, I accept that “the question of whether it should have performed an inquisitorial function in seeking further evidence does not arise,” as Lloyd-Jones J said in J v. SENDIST at [33]. Where, however, there is inadequate information to reach a decision, then the FTT cannot proceed on a purely adversarial basis, but has “a duty to act inquisitorially when the occasion arises by making sure they have the necessary basic information on which to decide the appeal before them, rather than rely entirely on evidence adduced by the parties” as Scott Baker J held in W v Gloucestershire CC [2001] EWHC Admin 481 at #15, a duty which Lloyd-Jones said in J at [32] was a duty cast on special educational needs and disabilities tribunals in general…this was a clear case in which the FTT needed to adjourn, either opening the matter up for an oral hearing, or asking the Council (which had raised the points) to investigate further and make good its concerns (and then give the parents the opportunity to respond to anything put forward). But the FTT did not do that and in the circumstances it plainly failed to operate the necessary inquisitorial jurisdiction and approach.”

  An appeal is a “general appeal” and the issue for the FTT is whether, on the evidence and submissions before it, the LA came to the correct conclusions on matters of fact, law and judgment, assessed at the time of the hearing: DH & GH v Staffordshire CC [2018] UKUT 49 (AAC) #19. Gloucestershire CC v EH (SEN) [2017] UKUT 85 (AAC) #47 confirms that for EHCP appeals as for statement appeals, the FTT looks at the position at the date of the hearing and looking forward, not at the time of the appealed decision.

  The FTT should check for itself the appropriateness and legality of changes which the parties have agreed should be made (e.g. in a working document), not simply rubber stamp them: East Sussex CC v TW [2016] UKUT 528 (AAC)#38.

  More: 

  Does the FTT just have to decide which expert is right?
  Does the LA have to ‘play fair’?

  Go to Glossary

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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