Keeping the Supreme Court busy … and ones to watch out for

July 28th, 2010 by Peter Oldham QC

At the end of this year, the Supreme Court will hear yet another education case:  G v Governors of X School (CA decision at [2010] ELR 235), which concerns the procedural rights of teachers being disciplined by a governing body where the outcome may affect their ability to carry on teaching.   Never before has our highest Court had such a proportion of its workload coming from the world of education: see blogs below on A v Essex, and  Re JR 17, not to mention the two JFS matters ([2010] UKSC 1 and 15).

One step below, the Court of Appeal is to hear an appeal from the decision of Cranston J in O v East Riding of Yorkshire CC [2010] E.L.R. 318, which is an important case dealing with the interface of special needs provision and social services provision.  The judge held that the local authority had correctly ceased to regard a child as being “looked after” under the Children Act 1989 when he was placed in full-time residential education under his SSEN.  This was because, on the facts, the school provided all his welfare needs, and he no longer needed respite care or accommodation, so that the authority was not providing his accommodation in the exercise of its social services function.

Peter Oldham QC

 

The role of the Upper Tribunal in education law, and its judgments

July 25th, 2010 by Peter Oldham QC
The Upper Tribunal Administrative Appeals Chamber (UTAAC) deals with appeals from the first-tier Tribunal (Health, Education and Social Care) Chamber, which itself deals with care standards, mental health, primary health lists and, as relevant to this blog, special educational needs and disability.  

 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: https://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.

 

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