What constitutes a change in “circumstances relevant to the decision”? Holly Littlewood considers the practical implications of a recent Upper Tribunal ruling.
The recent Upper Tribunal decision of TN v FtT and East Sussex County Council  UKUT 98 (AAC) provides guidance as to when the First-tier Tribunal (“FtT”) should review a decision where “circumstances relevant to the decision have changed”, pursuant to r.48 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the FtT Rules”). This case also confirms that where the FtT refuses an application pursuant to r.48 FtT Rules to review its decision on the ground of a change in circumstances, any challenge to that refusal must be brought by way of an application to the Upper Tribunal for judicial review, and not as an appeal.
Applications for Review under R.48(2) FtT Rules
In a process unique to special educational needs cases, the FtT may undertake a review of a decision upon the written application of a party “if circumstances relevant to the decision have changed since the decision was made” (r.48(2) and r.49(1)(b) FtT Rules). An application for a review pursuant to r.48 must be made within 28 days of the FtT decision notice (r.48(3) FtT Rules), although the FtT is empowered to extend the time limit in appropriate cases (r.48(4) FtT Rules).
Having conducted a review, the FtT is empowered to correct errors in the decision, to amend the reasons given for the decision, or to set the decision aside (s.9(4) Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”)). It may also, of course, carry out a review and decide to take no action in light of it (R (EL and JB) v FtT and Surrey County Council  UKUT 4 (AAC), para. 4). Where the FtT sets the decision aside, it can either re-decide the matter itself or ask the Upper Tribunal to do so (s.9(5)-(6) TCEA 2007).
What constitutes a change in “circumstances relevant to the decision”?
In TN v FtT and East Sussex County Council, the FtT’s original decision named a particular college in Section I of the applicant’s Education, Health and Care Plan (“EHCP”), predicated on the applicant studying a one-year Level 2 course in Art, Fashion and Design. Within a week of the decision, the college indicated that it could no longer offer the applicant a course on these topics, or at this level. The Level 2 course in Art, Fashion and Design had (not unusually) not been named in the applicant’s EHCP, nor specified as part of the special educational provision to be made. On that basis, the FtT Judge determined that “the allegation that the change of course is a change of circumstance that would have affected the decision is not sustained”, and refused to conduct a review.
The applicant’s challenge to that decision was seemingly beset by administrative and procedural difficulties. The challenge was brought by way of an application for permission to appeal as opposed to an application for judicial review. The interested party’s Acknowledgement of Service and Grounds of Opposition were not before Upper Tribunal Judge Ward at the time he reached his decision to grant permission. Further, the parties failed to file further submissions on the judicial review application, or to update the Upper Tribunal on the annual review process, as directed.
Nonetheless, Judge Ward was able to give useful guidance on the proper approach to applications for review pursuant to r.48.
Judge Ward considered the decision in R (EL and JB) v FtT and Surrey County Council  UKUT 4 (AAC). In that case, Upper Tribunal Judge Jacobs held (at para. 3) that r.48(2) and r.49(1)(b) FtT Rules “can only be read sensibly together by treating the requirement for a change of circumstances relevant to the decision as a threshold condition that must be satisfied before a review can be undertaken”. Further, Judge Jacobs held (at para. 12) that it is not necessary, when considering whether the threshold condition is met, “to show that the change justifies a different decision, although applicants will want to make the best case for a review that they can”. In that case, it was held that where a FtT had placed considerable weight on an Ofsted report, which was superseded by a less favourable report shortly after the FtT’s decision, the “threshold condition” was satisfied and the FtT should have conducted a review.
Applying R (EL and JB) v FtT and Surrey County Council, Judge Ward ruled that:
(a) The FtT Judge had set the bar too high by interpreting the “threshold condition” for a review as requiring the applicant to establish that the change of circumstance would have affected the decision; and that,
(b) There is no requirement under r.48 for the changed circumstances to relate to a matter expressly addressed in the EHCP.
Whilst not formally ruling on this point, Jude Ward expressed doubt that, where the threshold condition is met, it would be open to the judge to refuse to review the decision in any event.
Challenging a refusal to review a decision
Judge Ward helpfully confirmed that, whilst the Upper Tribunal consistently receives challenges to refusals to review which have been brought as applications for permission to appeal, this approach is incorrect. A decision not to review an earlier decision of the FtT is an “excluded decision”, against which there is no right of appeal (s.11(1) and 11(5)(d) TCEA 2007). Instead, an application should be made to the Upper Tribunal for judicial review.
Local authorities should consider the guidance in TN v FtT and East Sussex County Council when faced with an application for judicial review of a decision to refuse to review pursuant to r.48, or indeed, if they themselves apply for a review pursuant to r.48.
Upon a party applying for a review pursuant to r.48, the FtT should consider whether, as a matter of fact, the “threshold condition” (that is, the requirement for a change of circumstances relevant to the decision) is met. There is no requirement at this stage in the process for the applicant to establish that the change in circumstances would have affected the decision, or that the change in circumstances relates to a matter expressly addressed in the EHCP. Where the FtT considers that the “threshold condition” is met, then it should undertake a review. Once a review is underway, then it is at that stage that the question of how the change in circumstances would have affected the decision should be considered (and indeed, will be likely to be intrinsic to the outcome of that review).
Local authorities may also wish to consider whether an alternative, more proportionate remedy can be put forward in order to obviate the need for judicial review proceedings.
A challenge to a refusal to review is subject to the usual judicial review considerations, including the fact that it is a remedy of last resort. In the case of TN v FtT and East Sussex County Council, whilst the FtT Judge was found to have erred in applying an incorrect legal test, the local authority had proposed an alternative, more proportionate and more advantageous remedy in the form of a statutory annual review of the applicant’s EHCP. Ultimately, relief was refused on that basis.
This article is written for general information purposes. It does not constitute legal advice, and should not be relied on as such.