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• 14 Feb 2022

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  Yes. The general rule is ‘no order as to costs’, but the FTT may make an order where “a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings”: FTT (HESC) Rules 2008 r10(1).  The power to make a costs order is in respect of conduct during proceedings and not prior conduct (e.g. failing to name a placement): NS & RS v Kent CC [2021] UKUT 311 (AAC) #100.

  Where the parties have agreed matters and the appeal is withdrawn, FTT (HESC) Rules 2008 r10 allows a costs application to be made within 14 days: UA v LB Haringey [2016] UKUT 0087 (AAC) #13.

  The proper approach is a three-stage process, (1) did the party against whom an order for costs is sought act unreasonably in bringing, defending or conducting the proceedings? (2) if it did, should the FTT make an order for costs? and (3) if so what is the quantum of those costs?”: MG v Cambridgeshire CC [2017] UKUT 172 (AAC) #28, LW v Hertfordshire CC (SEN) [2019] UKUT 109 (AAC) #11.

  As to (1), just because one party wins a case does not mean it was unreasonable to defend it – the reasonableness of conduct must take into account the ongoing and evolving nature of proceedings: HJ v LB Brent [2011] UKUT 191 (AAC)#17 and NS & RS v Kent CC [2021] UKUT 311 (AAC) #146-148.

  “..nothing in this decision should be taken as encouraging applications for costs. The general rule in this jurisdiction is that there should be no order as to costs. There are good and obvious reasons for the rule. FTT proceedings should be as brief, straightforward, and informal as possible. And it is crucial that parties should not be deterred from bringing or defending appeals through fear of an application for costs…Furthermore, tribunals should apply considerable restraint when considering an application under rule 10, and should make an order only in the most obvious cases. In other words, an order for costs will be very much the exception rather than the rule”: MG v Cambridgeshire CC [2017] UKUT 172 (AAC) #26.

  At stage 1, the FTT must determine whether there has been “relevant unreasonable conduct” and at this “stage there is no element of discretion”: JW v Wirral MBC (SEN) [2021] UKUT 70 (AAC) #53. 

  An example of unreasonable conduct is where the LA had provided inaccurate evidence to the FTT in oral evidence at the hearing: NK v LB Barnet [2017] UKUT 265 (AAC)#22. Another example is where a parent appealed to the UT on the basis of wanting a mainstream school where the UT found it “could not really have been believed by her” that mainstream school was suitable and that she “wanted to thwart the [FTT]’s decision by whatever means necessary”, her grounds of appeal relied on an inaccurate account of proceedings, and that appeal was subsequently withdrawn: LW v Hertfordshire CC (SEN) [2019] UKUT 109 (AAC) #15.

  However, where the LA conceded the appeal the day before the hearing, and only minor issues of wording remained but the parent (represented by an advocate) pressed ahead with the hearing, this was not unreasonable – but it may have been unreasonable had the concession occurred earlier: Walsall MBC v SPC and KU (SEN) [2018] UKUT 37 (AAC). Likewise, it was not unreasonable for the LA to propose a school which was a “poor” choice where that was later ruled out of contention before the evidence deadline:NS & RS v Kent CC [2021] UKUT 311 (AAC) #116-120.

  Where the LA repeatedly raised the issue of placement in a section B and F appeal, this constituted unreasonable conduct: JW v Wirral MBC (SEN) [2021] UKUT 70 (AAC) #60-65. 

  As to (2), the FTT will have regard to all the circumstances including the nature of the unreasonable conduct, how serious it was, and what the effect of it was: MG v Cambridgeshire CC [2017] UKUT 172 (AAC) #30. In NK v LB Barnet [2017] UKUT 265 (AAC)#26, the effect of the unreasonable conduct was the UT appeal to correct the unreasonable evidential error, however at that appeal the LA showed the error was not material, and therefore no order for costs was made.

  A costs order does not necessarily need to be confined to the costs attributable to the unreasonable conduct: LW v Hertfordshire CC (SEN) [2019] UKUT 109 (AAC) #9, approving McPherson v BNP Paribas (London Branch) [2004] ICR 1398 #40. LW also approved of case law that held the party’s ability to pay was not a relevant factor and at a minimum should cover the costs attributable to the unreasonable behaviour.

  As to (3), the amount payable did not depend on whether the claiming party was legally aided or not – the same was payable: MG v Cambridgeshire CC [2017] UKUT 172 (AAC) #20-22.

  It will generally be acceptable for a different judge to that hearing the FTT appeal to make a costs decision, except in exceptional cases, and in such cases this should be flagged in the application. In such circumstances, the judge alone can determine the costs application without the full panel being reconvened: NS & RS v Kent CC [2021] UKUT 311 (AAC) #157-160.

  An appeal to the UT against an FTT costs decision will only succeed where “the Judge’s discretion has been exercised contrary to principle, in disregard of the principle of relevance or is just plainly wrong”: NS & RS v Kent CC [2021] UKUT 311 (AAC) #153.

  Go to Glossary

  

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

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