Does anyone know what the legal position is in relation to costs in the SEND Tribunal?

Just spoken to the officer at the LGO who made the decision referred to in this question: https://supportsendkids.org/question/1681234…

He said one of the reasons the LGO doesn't have jurisdiction is because the SEND Tribunal has the power to award costs. He said he doesn't recognise my assertion that the general rule in the SEND Tribunal is not to award costs. He said this would surprise him if it was indeed the case.

Does anyone know what the legal position is in relation to costs in the SEND Tribunal? Has the SEND Tribunal issued any guidance on this point? I was advised by our solicitors when appealing our child's EHCP that the general rule in the SEND Tribunal is that there should be no order for costs. We therefore made no such application. The officer from the LGO said he believed the SEND Tribunal did make orders for costs and that therefore the LGO couldn't look into recompense of legal fees because it would involve stepping on the toes of another body. My point is that if the other body - i.e. the SEND Tribunal - isn't using its powers and is in fact actively encouraging claimants not to - then where does that leave claimants - other than in debt if they've had to instruct a solicitor to try and obtain justice?

I asked the LGO officer if he knew what proportion of cases that came before the SEND Tribunal resulted in a costs order being made. He said he had no idea. Obviously, it his not for him to know this but I just left wondering if this information is readily available or if it's worth me making a FOI request? The officer did say there is lacuna in the law in relation the LGO's jurisdiction ending when appeal rights become available, but he assured me the LGO had fully and properly considered R (ER) v Commissioner for Local Administration & Anor [2014] EWCA Civ 1407 (Hillingdon) and applied it correctly in my case. Have I reached a dead end with this or are there cases pending that might make me making an application for judical review (to be put on hold pending such a decision) worth while? Many thanks.


Support SEND Kids
03 May 2024

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A: SenseCheck

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  • 06 May 2024
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    Too fact specific, I can't generalise.:

    The issue of costs is addressed in the Noddy Guide, and this can be found here:

    12.25 Can one party be ordered to pay another party’s legal costs following an FTT appeal?

    You may find the following bullet point summary above helpful, though this is not a substitute for fully examining the above:

    • In FtT proceedings, costs are generally not awarded unless a party or its representative acted unreasonably.
    • However, costs may be ordered if someone behaves unreasonably during the proceedings, not before.
    • If parties settle and withdraw the appeal, a costs application can be made within 14 days.
    • The process for considering costs involves three stages: assessing unreasonable conduct, deciding if costs should be awarded, and determining the amount.
    • Succeeding in an appeal doesn’t automatically mean the other party acted unreasonably in resisting an appeal.
    • Tribunals are cautious about awarding costs to encourage fair and accessible proceedings.
    • At the first stage, the tribunal checks for relevant unreasonable conduct, without discretion. Examples of unreasonable conduct include providing inaccurate evidence or pursuing an appeal based on false claims.
    • However, certain actions, like persisting with a hearing after a concession, may not be deemed unreasonable.
    • Raising irrelevant issues repeatedly can also be seen as unreasonable conduct.
    • When deciding on costs, the tribunal considers the seriousness and impact of the unreasonable behaviour.
    • The costs order may cover expenses beyond those directly caused by the unreasonable conduct.
    • The ability to pay is not typically considered when determining the costs to be paid.
    • A decision on awarding costs involves a different Judge from the original hearing unless there are exceptional circumstances.
    • An appeal against a cost’s decision will only succeed if the judge's decision was contrary to legal principles or plainly wrong.

    With regards to an FOI request, I am not sure about this due to the relevant exemption in s32 FOI2000:


    But I am not an expert in this area and maybe others can give more precise guidance.

    I trust this is helpful and I look forward to reading other responses. If it is helpful, please click the thumbs up button.

    Many thanks

    Sean Kennedy.

    Sean Kennedy

    Sean Kennedy
    Talem Law