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Judge criticises SEN Tribunal for Wales for refusal to accept case

A judge has made withering criticisms of the Special Educational Needs Tribunal for Wales, which he said had been wrong both to refuse to accept a case for appeal and to try to influence him as to its merits.

Giving judgment in SG v Denbighshire County Council and MB [2018] UKUT 158 (AAC), Judge Mitchell of the Upper Tribunal, found the president of the Special Educational Needs Tribunal for Wales had no power to refuse to register Mr S’s appeal against Denbighshire County Council’s refusal to amend his daughter’s statement of special educational needs.

The judge said the SEN tribunal’s regulations require certain information to be included in the application but the simple absence of such information did not “render it a non-application”.

Judge Michell went on to criticise what he called the SEN tribunal’s “misconceived attempts to become involved in these proceedings”.

He said the SEN tribunal had successively argued that it was entitled to respond to a parent’s appeal to the Upper Tribunal, that it was automatically a party to the appeal and then sought to make written submissions.

“The written submission supplied did not exhibit the neutral and dispassionate stance expected,” the judge said.

“It was comprised of unreasoned assertions, arguments whose logic I could not follow and simple errors.

“Worst of all, it dogmatically advanced a particular interpretation of the tribunal’s regulations, which betrayed a serious misunderstanding of the appropriate role of a tribunal in the (unlikely) event that it makes submissions in proceedings on an appeal against one of its decisions.”

Denbighshire argued that the SEN tribunal president did not err in law by giving inadequate reasons for her decision to refuse to accept Mr S’s appeal.

But the judge said there was no power to strike out an appeal and the sanction was to dismiss an appeal without holding a hearing.

“Clearly the Tribunal cannot dismiss an appeal unless it is an appeal.,” he said. “And if an appeal is dismissed, there must be a determination of the appeal. Mr S’s appeal was not determined. I therefore reject the local authority’s argument that the president made a lawful decision.”

The judge warned: “This matter now goes back to the Special Educational Needs Tribunal for Wales…I hope this decision makes it clear what I think the secretary should do in order to discharge the duties imposed. I very much hope Mr S does not have to try and enforce the Secretary’s regulation 15 registration duties in judicial reviews proceedings before the High Court.”

Turning to his concerns about the SEN tribunal’s attempts to become involved in the case, the judge said: “Had the [SEN] Tribunal had taken the trouble to consult the Upper Tribunal’s rules”, it would have known that its president was not a party to proceedings over which she adjudicated.

Judge Mitchell said he had “never before had to deal with a tribunal’s application to make submissions on an appeal against one of their decisions”.

No other judge he had consulted could recollect any similar case either, and “I have no doubt why. Most tribunals are well aware that it is very rarely appropriate for them to become involved in appeals against their own decisions. It puts their reputation for impartiality at risk.”

The SEN tribunal’s written submissions were not an attempt to help the Upper Tribunal to understand something but “dogmatically advance a particular standpoint and there is nothing balanced about them.

“It is quite wrong for a tribunal to take this stance. A tribunal is not a party to an appeal to the Upper Tribunal and should not behave as if it is.”

The SEN Tribunal for Wales has been contacted for comment.

Mark Smulian

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