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• 29 Mar 2023

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  No.  As mentioned in 12.11 Does the FTT just have to decide which expert is right?) “where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it.”: L v Waltham Forest [2003] EWHC 2907#14.

  In NE and DE v Southampton CC (SEN) [2019] UKUT 388 (AAC) #13, the FTT had acted unlawfully when considering how much progress the child in question had made at a particular placement (when considering the suitability the a placement) when it relied on a review report which (whilst in the bundle) was never mentioned in the hearing by the Tribunal or the LA: “In all the circumstances it seems that the proceedings were fundamentally unfair because a central evidential plank on which the FTT based its decision was not one which either of the parties or the FTT had ever raised as having any importance to the issues the FTT had to decide…This is not diluted in my judgment by the fact that the March 2018 additional annual review was in the bundle and ‘viewed by’ two of the witnesses. The issues before the FTT were framed by the parties’ submissions and the evidence they called in support of them, as supplemented by probing and questions from the tribunal. It is uncontested before me that at no stage was a case advanced prior to the tribunal’s decision that founded the answer to current progress significantly or at all on the March 2018 additional review. To then find as the FTT did was unfair to the parents and amounted to a material error of law on the part of the FTT in coming to its decision.”

  However, the procedural fairness of a particular FTT decision will depend on the facts. In TW and KW v Hampshire County Council [2022] UKUT 00305 (AAC) #18, the UT considered that where an FTT revisited an agreed position from Day 1 on Day 2, this was lawful provided it was adequately raised and the parties had a chance to comment – and in this case for them to be able to do so in written closings submissions (after the hearing of the live evidence) was legally sufficient. 

  More: 12.11 Does the FTT just have to decide which expert is right?

  

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

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