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Planning Law Solicitors

Special Educational Needs: Review of decisions by First Tier Tribunal

November 8th, 2010 by Louise Humphreys

Posted In: Education

Tags: special educational needs, first tier tribunal, upper tribunal

Since the Tribunal Procedure (First Tier Tribunal) (Health Education and Social Care Chamber) Rule 2008 came into force, many local authorities and parents have been subjected to further expense and longer delays in special educational needs cases because First Tier Tribunals have been holding "review" hearings in order to decide whether there was an error of law in their original decision.

By way of background, when it receives an application for permission to appeal, the First Tier Tribunal is obliged to consider whether or not to review the decision under Rule 49. If the tribunal decides not to review its decision it then must consider whether or not to give permission to appeal in relation to the whole of the decision or part of it.

However, two recent Upper Tribunal decisions make clear that a tribunal should only review its decision where there has been a clear error of law and not where there is a contentious or arguable error of law:

  • R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC)
  • B v Worcestershire County Council [2010] UKUT 292 (AAC)

Local authorities and parents should therefore be more confident in disputing the need for review hearings where there is no clear error of law. Where there is a clear error of law, a review may provide the quickest resolution of the case but where there is an arguable or contentious point of law the better option is for the Upper Tribunal to deal with the case via an appeal as quickly as possible.