Q:
12.20 Can the ETW reach a decision on a point which the parties have not had a fair chance to respond to?
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 01 Nov 2024
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No
Complex
No. 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 para 14. Whether a party has had a fair chance to respond will depend on all the circumstances:
- In BB v LB Barnet [2019] UKUT 285 para 18, it was not unlawful under the circumstances for the FTT to disagree with the parental OT evidence without canvassing this with the parties, even where the LA had not put in any OT evidence of its own: “The tribunal is entitled to proceed on the basis that the submissions and evidence are complete at the end of the hearing and that further reference back to the parties is not necessary unless something new arises that has not been fairly covered. The tribunal is entitled to expect the representatives to anticipate the likely range of options that the tribunal will consider and present their case accordingly.” This was a case where both parties had been represented by experienced counsel before the FTT.
- In (1) BK (2) AK v. Hackney LBC [2020] UKUT 329 (AAC) para 60-61 the UT held that it was not unfair for the FTT to make decisions about the disadvantages of attendance at the parent’s preferred school (which the LA had accepted as suitable) without putting the same to parents’ witnesses or their representative at the hearing: “If there is an entirely new issue which no one contemplated during the hearing, fairness will require the FTT to put it to the parties. By contrast, in other cases where the FTT’s thinking has been effectively, albeit not perhaps directly, addressed putting any new idea to the parties for comment and perhaps more evidence would prolong the proceedings. In the latter event the FTT is entitled to proceed on the basis that the submissions and evidence are complete at the end of the hearing. Further reference back to the parties is not necessary unless something new arises which has not been fairly covered. The FTT is entitled to expect the representatives to anticipate the likely range of options that it will consider and present their case accordingly…”
- By contrast, in NE and DE v Southampton CC (SEN) [2019] UKUT 388 (AAC) para 13, the FTT had acted unlawfully when considering progress in the context of suitability of a placement when it relied on a review which whilst in the bundle was never cited 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.”
Those principles are likely to apply equally to the ETW.
Nodi glossary: Education Tribunal Wales
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