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Neutral Citation Number:	2010 UKUT 348 AAC
Reported Number:
File Number:	HSW 2001 2010
Appellant:	Carmarthenshire County Council
Respondent:	MW & JW
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	20/09/2010
Date Added:	06/10/2010
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	other
Secondary Category:	Special educational needs
Secondary Subcategory:	Other
Notes:	Reported as [2011] AACR 17. Tribunal procedure – criteria for suspension of effect of tribunal decision The parents of a boy diagnosed with autistic spectrum disorder appealed to the Special Educational Needs Tribunal for Wales. The parties were agreed that the current placement was not suitable. The tribunal accepted the parents’ argument that the child needed a waking day curriculum and a residential placement. The authority applied to the tribunal for permission to appeal to the Upper Tribunal on 6 August 2010. As the tribunal has no power to suspend the effect of its own decision, the authority applied to the Upper Tribunal for a suspension under rule 5(3)(m) of the Tribunal Procedure (Upper Tribunal) Rules 2008, which gives the Upper Tribunal power to suspend the effect of a decision, but only in an appeal or an application to the Upper Tribunal for permission to appeal. In the meantime, the authority offered several temporary options to the parents, which would provide additional support. On 20 August 2010 an Upper Tribunal judge waived the requirement in rule 21(2)(b) that would have prevented an application to the Upper Tribunal unless the tribunal had refused or not admitted an application and accordingly treated the application for suspension as an application for permission to appeal. On 2 September 2010, the judge gave the authority permission to appeal and suspended the effect of the tribunal’s decision. On 3 September 2010, the parents applied for the suspension to be set aside, arguing that none of the temporary options offered by the authority was acceptable. Held, refusing to set aside the direction, that: 1. applying Department for the Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257, the questions to be decided were: have solid grounds been put forward by the authority for the effect of the tribunal’s decision to be suspended, and if so, on balance should the effect of the decision be suspended (paragraph 17); 2. the strength of the authority’s appeal cannot be a threshold criterion as the power to suspend may have to be exercised before the grounds of appeal are known, but it can be taken into account as the background or context of the balancing exercise that must be undertaken or in the exercise of the tribunal’s discretion (paragraphs 20 and 21); 3. insofar as there was a need to find solid ground as a threshold criterion in this case, it existed in the need to act at all times in the best interests of the child (paragraph 26); 4. the public interest is always a relevant factor in the balancing exercise to the extent that suspension is not automatic and while in some cases there may be additional public interest considerations, it did not have any additional significance in this case where the focus must be on the child and his education (paragraphs 27 and 28); 5. delay may be a relevant factor and is certainly relevant if it has any effect on the interests of the child. However in this case there had not been undue delay by the authority and, despite the undoubted impact that the uncertainty had produced for the child, the delay was a relative minor factor in the overall balancing exercise (paragraphs 29 to 31); 6. the issue in this case was how to keep the disruption caused by the inevitable change to a minimum and it was better for the child to avoid the considerable disruption in all the matters involved in a residential placement unless that was necessary and, since there could be no ideal solution until the child’s ultimate placement was known and the options offered by the local authority provided appropriate short-term provision to protect his interests, on balance it was in his interests for the suspension to remain (paragraphs 35 to 43). The judge gave directions for concluding the case as quickly as possible.
Decision(s) to Download:	[2011] AACR 17ws.doc