One Legal Sept 21 Director 600

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Upper Tribunal awards £22k costs against council in dispute over EHC plan

A borough council has had a costs order of £22,000 made against it by an Upper Tribunal Judge in a dispute over an Education, Health and Care plan for a man with learning disabilities.

In JW v Wirral Metropolitan Borough Council (SEN) (Special educational needs) [2021] UKUT 70 (AAC) Judge Mark West said he would remake the order and that he saw no purpose in remitting it to the First Tier Tribunal

JW, mother of 23-year-old A, applied for permission to appeal against the FTT’s decision over an error of law. A has complex learning and developmental disorders.

Judge West said Wirral had acted unreasonably in attempting to bring A’s placement into the dispute and that this justified him making an order for costs, summarily assessed at £22,000.00 including VAT.

At an earlier hearing, Judge McCarthy had refused JW’s application for costs of £35,176.30.

He had called her application “chaotic, often resembling nothing more than a stream of consciousness. As a result, it is difficult to follow and at times contradictory”.

The application said Wirral acted unreasonably, in removing provisions requiring expert evidence that were then effectively retained with some minor alterations in the Tribunal.

Wirral denied misleading JW into thinking the case involved issues regarding placement (section I),

Judge West said: “The behaviour and conduct of both parties fell far short of what the Tribunal would expect and the parties sought to conduct matters in a hostile adversarial manner contrary to the approach the Tribunal would expect.”

He agreed with Judge McCarthy’s criticisms of the costs application as original drafted as these should be “pithy, succinct and focussed; this one was not.

“Applications for costs should not be prolix, meandering and difficult to follow; this one was. The basis of the application should be clearly set out at the outset. It should not be necessary to embark on an elaborate textual exegesis in order to work out what the basis of the application is.”

But he said Judge McCarthy had not adequately explained why he found that the application was not made out and did not refer to whether Wirral’s attempt to bring placement into the appeal was unreasonable conduct.

Judge West said: “What the judge should have done was to address the central plank of the application and either accepted or rejected it and explained why that was so.”

He said the Tribunal “went wrong was in relation to the first stage of the adverse costs application [it] must determine whether there has been relevant unreasonable conduct”.

The judge added: “Given the tortured procedural evolution of the case and the amounts at stake, whilst I have seriously considered [remission to the FTT] I have decided that the most appropriate course is to cut the Gordian knot and determine the question of quantum myself to obviate the need for yet another hearing.”

Judge West reduced the £28,909.70 cost to £22,000 to recognise “it was not the entirety of the council’s defence of the action which was unreasonable’.

He allowed JW’s appeal on the ground that the FTT failed to give adequate reasons for its decision but rejected two additional grounds.

Mark Smulian