It is understandably rare for a court of appeal to be so critical of the conduct of an inferior court yet this month the Upper Tribunal launched what can only be described as a highly critical, some may say scathing attack on the approach taken by the President of the Welsh special needs tribunal in a case involving a parent of a disabled child who sought to register an appeal against a decision by Denbighshire County Council. (SG v Denbighshire County Council and MB [2018] UKUT 158 (AAC)).
The tribunal system is supposed to be user friendly yet when a father launched an appeal which the Tribunal at first instance considered to be defective, it refused to register the claim resulting in the father appealing the decision to the Upper Tribunal. The Upper Tribunal stated that defects in applications should be dealt with by case management procedures rather than by refusing to register applications. It stated that the President had “no power” to make an order that the appeal should not be registered commenting that the attempt thereafter to defend its order within the subsequent appeal proceedings highlighted a failure to exhibit the neutrality expected of a tribunal /judge.

The appeal judge considered that the submissions made by the President were “misconceived” going on to state.

“The written submission supplied did not exhibit the neutral and dispassionate stance
expected. It was comprised of unreasoned assertions, arguments whose logic I could not
follow and simple errors. Worst of all, it dogmatically advanced a particular interpretation
of the Tribunal’s Regulations, which betrayed a serious misunderstanding of the
appropriate role of a tribunal in the (unlikely) event that it makes submissions in
proceedings on an appeal against one of its decisions.”

However the criticism did not end there, as the appeal judge found that the attempt to frequently change her submissions and endeavour to become involved in the appeal proceedings revealed a failure to appreciate what “would have become obvious if someone at the Tribunal had taken the trouble to consult the Upper Tribunal’s rules”.

The Upper Tribunal said

“In my view, the President’s / Tribunal’s attempts to become involved in Mr S’s appeal
were entirely misconceived (a term that I use advisedly). The actions of December 2017
and January 2018 fell far short of the neutral and dispassionate stance that has, for many
years, been viewed as appropriate in those cases where a tribunal is or wishes to become
involved in some way in a challenge to one of its decisions (see S v Special Educational
Needs Tribunal and the City of Westminster [1996] ELR 102)………
Most tribunals are well aware that it is very rarely appropriate for them to become involved in appeals against their own decisions. It puts their reputation for impartiality at risk. Special circumstances may justify some degree of involvement, such as the cases identified in S v Special Educational Needs Tribunal and the City of Westminster [1996] ELR 102, but never for the purposes of trying to show that the tribunal made the right decision.”

It also saw fit to comment on the written submissions made by the President commenting that they “are not drafted in the style of an amicus curiae.” (ie to assist the Upper Tribunal) but rather stated they were “ not an attempt to help the Upper Tribunal to understand something of relevance about how the Tribunal operates.” . It stated “They dogmatically advance a particular
standpoint and there is nothing balanced about them. It is quite wrong for a tribunal to take this stance. A tribunal is not a party to an appeal to the Upper Tribunal and should not behave as if it is. I would have thought it was obvious that, if a tribunal is to make written submissions on an appeal, it needs to do so in a way which assists the administration of justice. The Tribunal’s submissions have not helped me at all. The only thing achieved has been delay.”

Such language is of course rare to find in an appeal judgment. However to see this occur in what is supposed to be a user friendly procedure to assist embattled parents secure the rights of their children is deeply disturbing. I am sure many lessons will be learned from this. One lesson is that the impartiality of the courts both in practice and appearance must be fiercely preserved. It is unacceptable that too many parents have to fight against poor decisions on the part of a local authority which is expected to act properly and fairly with little chance of cost recovery. If they also have to fight against a Tribunal which oversteps the mark the level of unacceptability is enhanced.

Michael Charles

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