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• 01 Nov 2024

• Yes

  Complex

  Yes, however costs orders are very rare. The tribunal does have power to make such an order when: 

  1. a party has been responsible for improper, unreasonable or negligent action or omission, or for any failure to comply with a direction or any delay which with diligence could have been avoided or that the party’s conduct in making or resisting the appeal or claim was unreasonable;
  2. against a representative if the representative is responsible for improper, unreasonable or negligent action or omission, or for any failure to comply with a direction or any delay which with diligence could have been avoided;
  3. against a party who has failed to attend or be represented at a hearing of which that party has been duly notified;
  4. against the local authority, FEI governing body or responsible body where it has not submitted a case statement, or where the tribunal considers that the disputed decision was unreasonable: r67 EdTW Regs 2021. 

   

  The tribunal is likely only make a costs order in exceptional circumstances.The reason behind this is to ensure that parties are not deterred from bringing or defending appeals due to fear of costs applications.

  An application for such an order must be made in writing and submitted to the ETW, with a copy being provided to the other party.

  Cases will turn on their own facts, but the following are indicative of the approach before the FTT in England:

  • 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) para 17 and NS & RS v Kent CC [2021] UKUT 311 (AAC) para 146-148.
  • 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) para 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necessary”, her grounds of appeal relied on an inaccurate account of proceedings, and that appeal was subsequently withdrawn: LW v Hertfordshire CC (SEN) [2019] UKUT 109 (AAC) para 15.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) para 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) para 60-65.

  An appeal to the UT against a 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)para 153. That high threshold is likely to apply to any challenge of a decision of the ETW on costs.

  Nodi glossary:  Education Tribunal Wales

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

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