Q:
Advice on how to approach LA
Urgent advice on how to approach this please. Tribunal appeal in less than 2 weeks. LA have been awful. Not sent case review form or WD. 2 orders from Tribunal which they ignored and are currently barred.
Today, less than 8 days before tribunal they have sent WD. Also snuck in some late evidence. And asked for a meeting with me next week to discuss what I am appealing. The appeal was lodged 5 months ago and they have not wanted to work with me at all until today.
I have been working on WD with some help from a charity but am not sure it is quite right yet. I also don’t trust the LA now. I’m not sure whether to meet them or just say I’ll have an email discussion with them, or just do via WD?
I’m tempted to write a timeline of when info submitted, and my emails to them and oppose them putting in late evidence. Is this worthwhile?
A: SenseCheck
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- 25 Oct 2024
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GD
If a Local Authority (LA) is barred, surely they cannot assume they are able to take any further part in the proceedings.Refer to the Tribunal Rules, which can be found here:
Rule 8 states:"(9) If a respondent has been barred from taking further part in proceedings under this rule and that bar has not been lifted, the Tribunal need not consider any response or other submission made by that respondent and may summarily determine any or all issues against that respondent."
Just to be clear, in your case, has the Tribunal issued an order barring the LA?
If they have and wish to participate fully in the proceedings, they need to apply to have the bar lifted. As it seems you are a litigant in person, you could argue that this should be done before the hearing, provided the Tribunal permits it, which they may well do. I won’t go into the potential role of the Upper Tribunal, as it’s a bit late for that.
How a parent conducts themselves in these situations is a matter for them.
When a Respondent Authority is barred, some parents proceed as though the LA are no longer part of the proceedings.
That said, in The Royal Borough of Kensington and Chelsea v MJ and another [2017] UKUT 0102 (AAC) the Tribunal’s discretion not to consider the Local Authority's submissions once they were barred was considered. Below is a very brief summary of the decision:
“The Upper Tribunal allowed an appeal against the First-tier Tribunal's decision on 6 September 2016, which barred the local authority from defending a case due to failure to comply with procedural directions. The Upper Tribunal found an error of law in the original ruling and referred the matter back to a differently constituted First-tier Tribunal. This Tribunal was tasked with determining whether the local authority should indeed be barred from defending itself and, if not, to reassess the substantive appeal.
The case revolved around the local authority's late submission in response to an appeal, which the First-tier Tribunal deemed insufficient to prevent barring under Rule 8 of the Tribunal Procedure Rules. The Upper Tribunal noted that the First-tier Tribunal may have set too high a standard for what constituted adequate written representations, emphasising that any submission, regardless of quality, should have been considered in light of the overriding objective of fairness.
The Upper Tribunal argued that the complexities of the case and significant implications for a child’s education warranted a more flexible approach. The local authority’s delay was attributed to changes in representation and operational difficulties, which should have been taken into account rather than leading to automatic barring.
As a result, the Upper Tribunal remitted the issue of whether to bar the local authority and the substantive appeal to the First-tier Tribunal, stressing the need for fresh evidence and the opportunity for cross-examination. The decision underscored that procedural compliance should be balanced with justice and fairness in Tribunal proceedings.”
Paragraph 23 is particularly noteworthy:
“Striking-out is a draconian remedy of last resort, especially in an inquisitorial jurisdiction where the participation of both parties is essential to achieving the ‘correct’ outcome. Similar rules apply across many Chambers of the First-tier Tribunal, where it’s common for members of the public to represent themselves or be represented by non-legally qualified individuals, as well as for public bodies to be represented by non-lawyers. The Tribunals are not intended to be the exclusive preserve of professional lawyers.”
Regarding your case, you haven’t clarified why the Local Authority (LA) was barred (if indeed have been). However, it appears that if the LA were to attempt to lift the bar even at this late stage, they might reference the above, though you possibly could counter that, as they are presumably legal represented or have access to legal input from lawyers, their initial culpability is difficult to defend. Even then, this must be balanced against the interests of justice and the need for proceedings to be effective.
By maintaining a professional relationship with the LA, such working on the working document, you could possibly demonstrate respect for the overriding objective while being aware of the potential effects of the bar. That said, you can only do so when you receive a version containing their proposed amendments. You should of course, have a version of your own containing your proposed amendments and this should be sent to the Tribunal if the LA does not communicate. In this case, corresponding by email only may be seen as reasonable. Meeting with the LA is optional, and presumably, you would only choose to do so if you believed it would be productive.
On the matter of late evidence, presumably, at the start of the hearing, you would request the application of the test in HJ v London Borough of Brent (SEN) [2010] UKUT 15 (AAC), which established the following considerations:
a) Could the late evidence have been submitted earlier?
b) Is the late evidence relevant to the issues needing determination?
c) Is it necessary to admit the late evidence, considering, for example, whether relevant evidence can be presented in person at the hearing?
d) Would admitting late evidence align with the overriding objective?
In relation to any late evidence from the LA, presumably you would have a response prepared for each of these elements identified as being relevant.
I am sorry this is a little long but I hope this is helpful and look forward to reading any additional contributions others may have.
Sean Kennedy
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