Judicial review of FTT in UT: what costs rule applies?

July 9th, 2013

In R (LR) v FTT [2013] UKUT 0294 (AAC) the parents and local authority had settled an appeal against a statement of special educational needs and entered into a consent order.  The local authority subsequently sought to re-open the tribunal’s approval of that order and, following a review, the FTT set it aside.

That decision of the FTT was an “excluded decision” (as defined in section 11 of the Tribunals, Courts and Enforcement Act 2007) meaning there was no right of appeal and it could only be challenged by way of judicial review, which claims are exclusively within the jurisdiction of the Upper Tribunal.  The parents brought such a challenge and succeeded (for that decision click here) but the present judgment concerned their claim for costs.

The Upper Tribunal (Sullivan P., Ockelton V-P, UTJ Ward) held that where: (1) the UT has exclusive jurisdiction and (2) the decision being judicially reviewed is that of the tribunal below, the UT should apply the same costs rules as the tribunal below. However, the UT cautioned against attempts to apply its decision more widely to situations where these two factors are not present.

On the facts, the UT found that the local authority had not acted unreasonably so as to justify an award of costs, saying that being wrong or misguided is not the same as being unreasonable.  The penultimate paragraph of its judgment is worth setting out:

“41.  Whilst we accept in the light of Judge Ward’s decision that the representative appears to have been somewhat out of her depth in what was a far from straightforward case, we would be reluctant to foster a climate where non-legally qualified representatives who found themselves in such a position were exposing their clients to a risk of costs. Both claimants/appellants and State defendants/respondents in tribunals are substantially dependant on representatives who present cases to the best of their ability, often very helpfully, and that is not something which it would be right to discourage merely because it has not gone smoothly on this particular occasion. We acknowledge that just because things had gone wrong in the First-tier Tribunal did not mean that the interested party then had to go on to try to unscramble the agreement reached. But the correct reading of what had occurred in the tribunal, particularly in relation to the section 316 issue, was far from self-evident and was arrived at by Judge Ward only after the fairly close reasoning in [32] to [42] of his substantive decision. A party being wrong or misguided is not the same as being unreasonable. Whilst we can understand the frustration of the claimant’s parents at the situation in which they found themselves, we therefore find that the conduct of the interested party or its representative cannot be categorised as unreasonable…”

The judgment is available in full here.

Paul Greatorex

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