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• 14 Feb 2022

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  Yes. Although the proceedings are in part adversarial because the LA will be responding to the parents’ appeal, the role of an LA as a public body at such a hearing is to assist the FTT by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the LA should be “placing all its cards on the table”, including those which might assist the parents’ case. It is not an adequate answer to a failure to disclose information to the FTT for an LA to say that the parents could have unearthed the information for themselves if they had dug deep enough: JF v Croydon [2006] EWHC 2368 #11. 

  As an example of that, it was incumbent on the LA to tell the FTT about the impending conversion into an academy of the school it was proposing: LS v Oxfordshire CC [2013] UKUT 135 (AAC)#50-52.

  In A J v. LB of Croydon [2020] UKUT 246 (AAC) #129-130: “The duty cast on the LA in a special educational needs case is as set out by Sullivan J in JF, namely that the role of an education authority as a public body at such a hearing is to assist the FTT by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the LA should be placing all its cards on the table, including those which might assist the parents’ case”. The UT rejected the proposition that there is “no authority suggesting that the principle extended to a duty to obtain further evidence, let alone evidence which rebutted the LA’s own evidence.”

  The LA’s response to an appeal must include “any further information or documents required by an applicable practice direction or direction” (FTT (HESC) Rules 2008 2008 r21(2)(f)), which according to the Practice Direction #10(c) includes “any supplemental evidence and professional reports currently available to the LEA and upon which it attempts to rely”. However, in accordance with the overriding objective, the LA should “supply any such material which it does not wish to rely upon but which it nevertheless thinks is likely to assist the [FTT] in reaching a just decision on the appeal before it” and “where a local authority is in doubt about whether such material in its possession would assist the [FTT] in reaching a just decision it should play safe and produce it”: AC v LB Richmond on Thames [2020] UKUT 380 (AAC) #4, #17.

  More: Does the FTT just decide who is correct?

  Go to Glossary

  

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

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