A recently published Upper Tribunal decision provides guidance as to the duties of the parties to provide relevant evidence to the First-tier Tribunal (“FtT”) in special educational needs cases, writes Holly Littlewood.
The proceedings in AC v London Borough of Richmond on Thames  UKUT 380 (AAC) were brought pursuant to s.51 of the Children and Families Act 2014, by the child’s mother as a litigant in person. The sole issue in dispute was the content of section I of the child’s EHCP; the local authority contended for a mainstream academy to be named in section I, whereas the applicant’s position was that section I should describe the type of school only. The hearing took place in September 2019, and the FtT found in favour of the local authority.
The applicant applied to have the FtT decision set aside on various grounds. Pursuant to r.50 of the FtT Rules , this application was treated by the FtT as an application for permission to appeal. Such permission was ultimately granted following an oral hearing before the Upper Tribunal (“UT”), solely on the ground that the local authority might have been under a duty to provide a number of reports which were not included in the hearing bundle (namely, an independent educational psychology report dated November 2016, and four speech and language therapy reports dated between March 2016 and October 2018), and that there might have been unfairness as a result of its not having done so.
The substantive appeal was heard by UT Judge Hemingway. Having heard oral submissions from both parties, he dismissed the appeal on the basis that:
- If the applicant had wished to rely upon the reports, then she herself should have submitted them to the FtT; and,
- There was nothing in the missing reports which had relevance to the questions that the FtT had to resolve with respect to section I of the child’s EHCP.
In relation to the question of whether the applicant ought to have submitted the reports herself, UT Judge Hemingway noted that there were obvious opportunities for her to have done so. Directions made by the FtT in advance of the hearing required the applicant to submit any professional reports on which she intended to rely. The timescale for compliance with this direction was not overly demanding. At the outset of the hearing, the FtT had allowed an application by the local authority for the admission of late evidence; it would have been open to the applicant to make a similar application in respect of the missing reports. Further, notwithstanding UT Judge Hemingway’s acknowledgement of the difficulties which litigants in person may face in such cases, the applicant was nonetheless under a duty to help the FtT to further the overriding objective, and to co-operate with the FtT generally, pursuant to r.2 of the FtT Rules.
Turning to the question of the relevance of the reports, UT Judge Hemingway stated that it was difficult to regard any of the reports as being truly current (the oldest report was three and a half years old, the most recent just less than a year old). Nonetheless, UT Judge Hemingway “would be resistant to an argument that age alone precludes relevance”. The more important factor was that there was no meaningful explanation as to how the content of the reports might have influenced the outcome of the appeal before the FtT. Whilst two of the reports, dated November 2016 and June 2017, pointed towards the child requiring a special school placement, the child had in fact been attending a mainstream school since October 2017, and the applicant had not argued for a special school placement before the FtT.
Having dismissed the appeal on the above basis, UT Judge Hemingway noted that it was not essential for the purposes of the decision for him to consider the scope of a respondent’s duty to provide relevant evidence to the FtT. Nonetheless, he went on to provide helpful guidance in this regard.
The Respondent’s duty to provide relevant evidence
UT Judge Hemingway noted that the starting point was r.21(2)(f) of the FtT Rules, which requires the respondent to provide with its response “any further information or documents required by an applicable practice direction or direction”. The applicable practice direction is the Health Education and Social Care Chamber Special Educational Needs or Disability Discrimination in School Cases , dated 30 October 2008. This practice direction requires the local authority (at para. 10(c)) to provide “any supplemental evidence and professional reports currently available to the LEA and upon which it intends to rely”.
UT Judge Hemingway also identified relevant non-statutory guidance, issued by HM Courts and Tribunals Service on 1 July 2014 . This guidance provides that the local authority should “give the tribunal up-to-date and detailed information about the child”, and goes on to provide a detailed list of such information, which could include the “latest assessments by people from school or external agencies”.
UT Judge Hemingway ruled (at para. 17) that r.21(2)(f) of the FtT Rules, read in light of the overriding objective in r.2 of the FtT Rules, requires a respondent to provide not only the evidence upon which it intends to rely, but also “any such material which it does not wish to rely upon but which it nevertheless thinks is likely to assist the FtT in reaching a just decision on the appeal before it”. He went on to caution that “where a LA is in doubt about whether such material in its possession would assist the FtT in reaching a just decision, it should play safe and produce it”. He confirmed that there was no “blanket duty” to disclose all expert assessments or reports whenever they were prepared, the key question being whether they were relevant to the issues to be determined in the appeal.
This decision is a helpful reminder to local authorities to review the documents which they hold in respect of a child or young person upon receipt of a notice of appeal to the FtT. Where any such documents are likely to assist the FtT to reach a just decision on the appeal, then they should be provided with the local authority response. Where there is doubt about whether a document is relevant, local authorities should err on the side of caution and disclose it.
This article is written for general information purposes. It does not constitute legal advice, and should not be relied on as such.
 Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008