Unreasonable Conduct in SEND Appeals

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Unreasonable Conduct in SEND Appeals

Unreasonable Conduct in SEND Appeals

Costs are rarely awarded in the SEND Tribunal and so, we seldom see decisions relating to them.  

Applications by local authorities are exceptionally rare (although note the Upper Tribunal decision in Walsall MBC v SPC and KU (SEN) [2018] UKUT 37 (AAC) that we wrote about last year)

More recently, in LW v Hertfordshire County Council (SEN) [2019] UKUT 109 (AAC), the Upper Tribunal found the Appellant (“the Parent”) to have acted unreasonably in appeal proceedings and ordered her to pay the local authority’s costs of £5,245.

 Events leading to the costs application

The Parent had initially lodged an appeal to the Upper Tribunal on the basis that she had been denied a fair hearing.  She asserted that her representative had not been permitted to make closing submissions in respect of her fall-back position (a mainstream school), if her preferred choice of school was not ordered.

The Upper Tribunal directed the Parent's representative to provide notes of the submissions he had prepared which had not been heard.  Instead, the Parent's representative provided a witness statement which advised that he had not prepared written notes as he was only instructed during the course of the final hearing to confirm that the Parent had a fall-back position.

The Local Authority instructed counsel to prepare a response to the Parent's Upper Tribunal appeal.

The Parent's solicitors then applied to withdraw the appeal on the basis there had been a 'significant change in circumstances' in the case. This was accepted by the Upper Tribunal and the hearing vacated.

The local authority queried the ‘significant change’ of circumstances and asked for evidence.  After a lot of to-ing and fro-ing, the Parent's solicitors eventually indicated that the child had received a new diagnosis, which meant that the child could not attend a mainstream school, therefore the appeal was unnecessary.

The local authority noted that the “new” diagnosis had actually been made some time ago and therefore made an application for costs against the Parent. The local authority submitted that there had been no 'significant change of circumstances' and the Parent had acted unreasonably by withdrawing the appeal only one week before the final hearing date. By this time, the Local Authority's solicitor had already prepared case papers and counsel had prepared skeleton arguments for the hearing.

Why was the Parent’s conduct ‘unreasonable’?

The Upper Tribunal held that the late withdrawal of the appeal amounted to unreasonable conduct.  Further, the Parent had misinformed her legal advisors so that her appeal was made  on weak grounds which had little to no prospect of success.

Although the power to award costs in special educational needs cases should be used sparingly, the decision in this case highlights the consequences that parties face if they act unreasonably in bringing, defending or conducting proceedings.

For more information on this topic, please contact Laura Thompson, or you can give us a call on 0345 070 6000.

This article was prepared by Pavi Atwal. 

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