Costs in the Upper Tribunal

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Costs in the Upper Tribunal

Costs in the Upper Tribunal

The recent Upper Tribunal decision in Walsall MBC v SPC and KU (SEN) [2018] UKUT 37 (AAC) has caused quite a stir. The matter concerned a claim for costs but this case was particularly unusual in that the local authority sought to claim costs against the parent’s representative.

There is no presumption in the SEND Tribunal that a ‘losing’ party pays the other side’s costs, however, parties can seek costs where they can show that the other side has acted unreasonably in their conduct of the case. Case law has identified unreasonable conduct as “vexatious, designed to harass the other side even if as a result of excessive zeal and not improper motive... the test is whether the conduct permits of a reasonable explanation”.

The Background

The claim followed an appeal by a parent to the First-tier Tribunal. The parent’s appeal related to the contents of her child’s Education, Health and Care Plan (“EHCP”), including the school placement named.

Two days prior to the hearing, agreement was reached regarding the school. All that was left to be resolved was the wording around the provision to be made for the child. Although an agreement seemed likely, in the run up to the hearing, the parent’s representative deleted a large chunk of the prescribed provision within the proposed EHCP and replaced it with additional wording in his preferred format. The First-tier Tribunal declined to make these amendments and the appeal was therefore dismissed. In its decision, the First-tier suggested that an application for costs might be “credible” albeit possibly disproportionate.

The local authority subsequently made an application for its costs relating to the First-tier hearing. It submitted that the parent would not have gone to hearing without encouragement or advice from her representative and that it was unreasonable for the parent’s representative to proceed to a hearing over the layout of the EHCP. The representative provided evidence that it was the parent’s decision to proceed to hearing but the local authority pursued the application against the representative.

The Decision

The First-tier Tribunal dismissed the claim for costs. It stated that the settlement regarding school placement had occurred only 2 days before the hearing and therefore, the period of time between settlement and the hearing was too short for it to be able to find the representative’s conduct to be ‘unreasonable’.

The local authority appealed against the First-tier’s decision however, the Upper Tribunal upheld it.

We will never know if costs would have been ordered had there been more time between settlement and the hearing, however, parties and their representatives should carefully reflect upon any conduct which warrants a costs application – particularly in a jurisdiction where the threshold is so high.

For further information on this topic, or for any other Education issues, please contact Laura Thompson or you can give us a call on 0345 070 6000.