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Neutral Citation Number:	2012 UKUT 213 AAC
Reported Number:
File Number:	JR 3126 2011
Appellant:	R (LR by ER)
Respondent:	FtT (HESC) & Hertfordshire CC
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	21/06/2012
Date Added:	25/07/2012
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	set aside applications
Notes:	Reported as [2013] AACR 26. Practice and procedure – consent order – whether a “decision” which can be re-opened Special educational provision – naming of school – “type” of school not restricted to statutory categories Following an appeal to the First-tier Tribunal (F-tT) by the parents against the local authority’s final statement of special educational needs for their son, an agreement was reached between the parties that an independent mainstream school with specialist classes was appropriate and that E should be the named school in Part 4 of the statement. The F-tT made a consent order on 22 March 2011 to confirm the agreement under rule 29 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (the Rules). Shortly thereafter the local authority applied for the consent order to be set aside on the basis that there had been an error insofar as E was an independent school (not an “independent mainstream school”). Its application was not served or sent to the parents or its solicitor. On 28 April a different F-tT judge decided to set aside that part of the F-tT’s decision relating to Part 4 of the statement. Upon receiving the decision the parents’ solicitors objected. On 18 May the same F-tT judge set aside her decision of 28 April and purported to review the F-tT’s original decision of 22 March. The judge concluded that the F-tT’s decision to approve the consent order was a procedural irregularity vitiating the approval under rule 29(1) and, under rule 45(1), set aside the decision to approve Part 4 of the consent order, thereby suspending the effect of the decision in relation to Part 4 of the statement. The issues before the UT included whether the judge was legally entitled to re-open the consent order and whether the procedure adopted was fair. Held, granting the application for judicial review and quashing the decision of 18 May 2011, that: 1. the approval of a consent order under rule 29 is a “decision”: LS v London Borough of Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27 followed. Therefore there was jurisdiction to re-open the consent order by set-aside, or, indeed, to review in appropriate cases (paragraphs 20 to 30); 2. the decision of the tribunal was not vitiated by having made an erroneous ruling as to the impact of section 316 of the Education Act 1996 (the duty to educate children with SEN in mainstream schools), as no such ruling was made (paragraphs 31 to 41); 3. the wording adopted to describe the “type” of school for the purposes of section 324 of the 1996 Act perhaps left scope for confusion (the parties had adopted it advisedly). But section 324 did not, as a matter of law, restrict the “type” of school to types which were concepts of statute. It could not be said that the tribunal had acted perversely in approving an order containing the description and there was no other way of challenging it on that ground (paragraphs 42 to 43); 4. the power to set aside under Rule 45 was restricted to procedural error and was not available where the ground of challenge, if established, was to the substantive decision. A point of substance could potentially have been dealt with by way of review under rule 49 (paragraphs 45 to 46). The Upper Tribunal judge declared that the consent order, as approved by the First-tier Tribunal on 22 March 2011, stood.
Decision(s) to Download:	JR 3126 2011-00.doc [2013] AACR 26ws.doc