This blog has been slow to report on three Upper Tribunal cases about the capacity of young people to bring SEN appeals, the need for an EHC Plan, and home-school transport. Anyone would think that there had been some legal and political distractions recently. Read more »
The Upper Tribunal has promulgated its decision in two cases (heard together) about the public benefit requirement for educational charities. The judgment runs to 116 pages.
The Upper Tribunal identified the key issues as follows. First, “what the governing instrument of a school (where such an instrument exists at all) needs to provide in order for the school to be capable of being a charity“. Secondly, “what a school actually needs to do to be seen as operating for the public benefit“.
The Upper Tribunal found that a trust which expressly excluded the poor from benefit could not be a charity. Charitable independent schools, like any other charity, must (in return for the privileges of charitable status) operate for the public benefit. This meant that they must run their charity to ensure that the poor could benefit in a way that was more than minimal or tokenistic. Once that threshold was reached, what the trustees decided to do in the running of the school was a matter for them, subject to acting within the range within which trustees can properly act. When it came to considering whether a school which was a charity was operating for the public benefit in accordance with its charitable purposes, the primary focus had to be on the direct benefits which it provided. Scholarships or other forms of direct assistance to students were therefore important. Account could also be taken of other direct benefits, such as arrangements under which students from local state schools could attend classes in subjects not otherwise readily available to them and the sharing of teachers or teaching facilities with local state schools. Account could also be taken of a school making available (whether on the internet or otherwise) teaching materials used in the school and of making available to state schools facilities such as playing fields, sports halls, swimming pools or sports grounds. It concluded that the Charity Commission’s guidance needed to be corrected.
The procedural background to the case highlights the various ways in which issues can reach the Upper Tribunal. One case was a judicial review claim, brought in the Administrative Court by the Independent Schools Council challenging the Charity Commission’s guidance on the public benefit (see our previous post on the topic). When Mr Justice Sales granted permission, he also transferred the JR application to the Tax and Chancery Chamber of the Upper Tribunal. The second set of proceedings was a reference by the Attorney General under the Charities Act 1993, asking the Upper Tribunal to decide certain questions about the operation of charity law in relation to a hypothetical independent school. The Independent Schools Council and Charity Commission were joined as parties to the Attorney General’s reference and it was heard together with the JR application. The National Council for Voluntary Organisations and individuals acting on behalf of the Education Review Group intervened in the JR application and were permitted to make representations in the Attorney General’s reference.
Nigel Giffin QC appeared for the Independent Schools Council.
The Supreme Court today handed down its long-awaited (at least by some) judgment in R (Cart) v The Upper Tribunal  UKSC 28. The case concerns the circumstances in which the ordinary courts will entertain an application to judicially review a decision of the First-Tier or Upper Tribunals. Although the case did not directly involve a challenge to the Health, Education and Social Care Chamber of the Tribunals, or the jurisdiction over educational issues more generally, the judgment is of wider general application.
The Upper Tribunal is a “superior court of record” by virtue of section 3(5) of the Tribunals, Courts and Enforcement Act 2007. Under section 13, there is a right of appeal to the Court of Appeal from the Upper Tribunal, subject to permission being granted by either body, unless the decision falls within the category of excluded decisions. The most generally relevant excluded decision is a refusal of permission to appeal from the First-Tier Tribunal to the Upper Tribunal by the Upper Tribunal. Where permission is refused that is, in the eyes of the 2007 Act structure, the end of the line. Unless one can judicially review the decision to refuse permission.
The Divisional Court roundly rejected the argument that the designation of the Upper Tribunal as a superior court of record rendered it immune from judicial review ( EWHC 3052 (Admin);  2 WLR 1012) and the absolutist position was not resurrected on appeal. The Court of Appeal agreed with the Divisional Court that judicial review should be available only in circumscribed cases ( EWCA Civ 859;  2 WLR 36). The Supreme Court unanimously dismissed the appeal, but for different reasons.
The leading judgment of the Supreme Court was given by Lady Hale, with whom the rest of their Lordships more or less completely agreed, albeit in their own words. Rejecting the application of an unrestricted judical review jurisdiction over all decisions in the Tribunal structure, and the application of an exceptional circumstances test limited to an excess of jurisdiction and denial of fundamental justice, the Court settled on a more easily described approach. Where an application is made for judicial review of a Tribunal decision the High Court should apply the second appeals criteria, namely that (a) the proposed case would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the case.
It was considered by Lady Hale and the other members of the Court that this test was a proportionate and rational restriction on the availability of judicial review which nonetheless recognised the importance of correcting errors in the Tribunal’s case load. The exceptionality test would have been too narrow, and applying judicial review without limitation would have lead to the courts being swamped with applications in respect of a system designed to make the process easier, quicker and cheaper (especially in the light of its application to immigration and asylum cases).
Interestingly, there were a number of comments from Lady Hale, Lord Phillips, Lord Clarke and Lord Dyson to the effect that the situation would be made clearer by an amendment to the CPR remove the potential four stages of judicial review permission applications in these quasi-second appeal cases. Whether the Rules Committee is paying attention remains to be seen.
The upshot of the decision in Cart is that if the Upper Tribunal refuses permission to appeal to it, that decision can be judicially reviewed, but only on the restrictive second appeals criteria. The tenor of the judgments as a whole do not provide much appetite for leave to be readily granted, and in both cases under appeal the Supreme Court roundly rejected their compliance with the second appeal test.
For those reading north of the border, the Supreme Court applied the same approach to the Tribunal structure in Scotland in Eba v Advocate General for Scotland  UKSC 29.
Further to Peter Oldham’s blog below, the Court of Appeal has handed down judgement in R (Rex C) v Upper Tribunal and others  EWCA Civ 859. The CA has confirmed the High Court’s decision ( 2 WLR 1012) that the Upper Tribunal is subject to the jurisdiction of the High Court by way of judicial review if it acts outside its jurisdiction or denies procedural justice, notwithstanding that it is designated as a ‘superior court of record’ by s 3(5) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Normally, however, the proper way to challenge a decision of the Upper Tribunal will be by way of appeal to the Court of Appeal under s 13 of the 2007 Act.
So UTAAC deals with what used to be appeals from SENDIST to the High Court on a point of law.
The Administrative Court is now also transferring some education judicial reviews out of the Administrative Court list to UTAAC.
A few miscellaneous points are worth bearing in mind.
(1) Some search engines do not include judgments by UTAAC – and this is now where some education law will be made. Here is Tribunal service webpage from which you can go to a search engine for UTAAC decisions: http://www.administrativeappeals.tribunals.gov.uk/Decisions/decisions.htm
(2) Upper Tribunal judgments can contain recommendations as to how the first-tier Tribunal carries out its functions, whether or not an error of law has been identified.
(3) Appeals to the High Court from what was SENDIST normally involved SENDIST itself as a respondent. Usually SENDIST took no part, but sometimes it participated, either on points of law or procedure, when it felt a important issue has been raised. The practice in UTAAC (so far) does not, or does not generally, allow for the first-tier Tribunal to take part in such appeals.
This has important implications for evidence supporting appeals. If an appellant says that there was a procedural unfairness, the first-tier Tribunal will not take part to defend the claim. Nor is it likely to provide evidence on the issue. If the appellant says that there was no evidence to support findings on an issue, again the first-tier Tribunal will not take part to explain that there was such evidence. My experience is that it is unlikely to provide notes of evidence to the parties to allow them to make, or refute, such an allegation, though it may be that there is no uniform practice.