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Neutral Citation Number:	2009 UKUT 197 AAC
Reported Number:
File Number:	JR 2050 2009
Appellant:	R ota JW through his mother DW as Litigation Friend
Respondent:	The Learning Trust
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	02/10/2009
Date Added:	13/10/2009
Main Category:	Special educational needs
Main Subcategory:	Other
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	judicial review
Notes:	Reported as [2010] AACR 11 Jurisdiction – judicial review – whether Upper Tribunal’s judicial review jurisdiction should be used to provide interim relief pending decision of First-tier Tribunal in special educational needs case The defendant issued an amended statement of the claimant’s special educational needs on 21 April 2009, naming a school different from that requested by the claimant and his mother. The claimant’s mother appealed on 28 April 2009 and the appeal was to be heard by the Health, Education and Social Care Chamber of the First-tier Tribunal on 4 November 2009. The claimant had been out of school since 3 April 2009. There is no statutory provision in the Education Act 1996, tribunal rules or elsewhere for interim relief pending hearing of an appeal against a decision taken by a local authority to name a school in a statement, in distinction from decisions to cease to maintain a statement, which are suspended pending an appeal. At the end of July the claimant’s mother applied to the Administrative Court for judicial review seeking expedition and the case was referred to the Upper Tribunal to be dealt with under its judicial review powers under sections 15–18 of the Tribunals, Courts and Enforcement Act 2007. The relief sought was that the defendant provide funding for a placement at the school the claimant had attended between September 2008 and April 2009 or for home tuition. Held, granting permission but dismissing the claim, that: 1. the Upper Tribunal in exercise of its judicial review jurisdiction has power to order interim relief pending the decision of the First-tier Tribunal (R(G) v The London Borough of Barnet [2005] EWHC 1946 (Admin); [2006] ELR 4 considered) (paragraph 26); 2. however, since the statutory structure clearly envisages that amendments to statements of special educational needs take effect forthwith despite any appeal, so that the general position is that pending hearing of an appeal a pupil will not be getting the educational provision that those acting for him consider he should receive, the jurisdiction to order relief to the same effect in judicial review proceedings should be exercised with considerable restraint and only where there are exceptional circumstances (paragraphs 27 to 29) ; 3. compared with judicial review, which looks at the methodology of a decision taken in the past and in respect of which circumstances may have moved on, the route, established by statute, for challenging statements of special educational needs by appeal has a number of advantages as the matter will be looked at by a tribunal with members with relevant expertise and with the benefit of any further evidence that has become available up to the date of hearing and in the light of the circumstances prevailing at that time (paragraph 30); 4. the circumstances of this case, including the time periods involved and the severity of the claimant’s condition, were not exceptional in the context of pupils with special educational needs sufficiently severe to require a statement, and so this was not a case where relief should be granted (paragraphs 32 to 37); 5. while there were undoubted defects in the original decision–making process, those could, to the extent that they were relevant to what the First-tier Tribunal would have to decide, be corrected using the powers to correct any deficiency in the statement under section 326(5) of the 1996 Act (paragraph 41).
Decision(s) to Download:	[2010] AACR 11 bv.doc