Speech and Language therapy decision quashed over reasoning of Tribunal

In AWZ v Hertfordshire County Council (Tribunal practice and procedure: statements of reasons) [2026] UKUT 301 (AAC) (04 August 2026), Upper Tribunal Judge Jacobs remitted the case back to the First-tier Tribunal.

The case first came before the First-tier Tribunal in July 2024. It dealt with speech and language therapy for AWZ's son.

In explaining how it assessed the evidence, the tribunal recorded in paragraph 34 of its written reasons that it did “not agree to the wording proposed by [witness 1] as we note that he did not actually meet” AWZ's son.

AWZ applied for permission to appeal to the Upper Tribunal.

The application came before Tribunal Judge Southby. In January 2025, the judge remitted the case to the tribunal. The purpose of the remittal was to:

1. specify the written evidence that was available to the panel when the Tribunal deliberated, and
2. consider the issue of Speech and Language Therapy.

The case came back before the same panel and it made its decision in June 2025. It accepted that it had made a mistake in paragraph 34 by saying that witness 1 had not seen AWZ's son.

It then dealt with a joint report written by witness 2 and witness 3. The tribunal accepted the evidence in that report and gave five reasons for doing so. The first reason began:

[Witness 2] confirmed that she assessed [AWZ's son] and that she administered a formal assessment using an assessment tool. As part of that assessment, she administered the SPLINGO Receptive Language Assessment ...

AWZ's first ground of appeal was that this reasoning contained a mistake of material fact in that witness 2 had never met or assessed her son and could not have administered the SPLINGO Receptive Language Assessment.

Upper Tribunal Judge Jacobs gave permission to appeal on that and other grounds.

Considering the case, Judge Jacobs said: “I am grateful to [counsel for the local authority] for clarifying the type of reports that are written by witness 2.

“The form of report depends on her involvement with the child. She writes on her own behalf when she has assessed the child, but only as joint author when she has not herself assessed the child. As the report in this case was a joint one, the tribunal was wrong to find that she had assessed AWZ's son and administered the SPLINGO [Receptive Language Assessment].”

In appeal ground 3, AWZ said that witness 2 told the tribunal that she had not directly worked with AWZ's son.

Judge Jacobs said: “I have not checked that statement, so I do not rely on it to make my decision. However, if that is what witness 2 said to the tribunal, it is all the more surprising that the tribunal made the mistake that it did.”

Considering whether the tribunal’s decision should be set aside, Judge Jacobs applied the following approach commended by Neuberger LJ (later Lord Neuberger) in HK v Secretary of State for the Home Department [2006] EWCA Civ 1037.

45. “... Where a fact-finding tribunal has decided to reject evidence for a number of reasons, the mere fact that some of those reasons do not bear analysis is not, of itself, enough to justify an appellate court setting the decision aside. In such a case, the appellate court has to decide whether it would be just to let the tribunal's decision stand. That question will normally be answered by considering whether one can be tolerably confident that the tribunal's decision would have been the same on the basis of the reasons which have survived its scrutiny. In the present case, as I understood it, both counsel accepted that that was the right test, and that seems to me to be correct.

46. “... the issue cannot be resolved simply by asking how many of the Tribunal's reasons survive. The issue has to be determined partly by reference to the probative value of those reasons, both in absolute terms and by comparison with the rejected reasons, and objectively, but also subjectively, in the sense of seeing what weight the tribunal gave to the various reasons it gave. The issue also has to be determined bearing in mind the overall picture including reasons which a tribunal would have had, but which were not expressed. An example would be the impression made by a witness (a factor which is not, in my view, high in the hierarchy of cogency, especially in an asylum case which will normally involve an appellant from a very different cultural background from that of the Tribunal).”

Judge Jacobs said: “The mistake that I have found relates to one part of the tribunal's reasoning. It gave five reasons for accepting the evidence of witnesses 2 and 3. The mistake I have found removes one of those reasons. The tribunal did not explain how witness 2's personal involvement contributed to its overall assessment of the joint report with witness 3. It must have had some significance because the tribunal made a point of stating it as one of its reasons. It was not merely a background fact. And the tribunal added to what it had said about witness 2 in the original decision, which must also be significant.

“The tribunal also gave as two of its other reasons that witness 3 had been working with AWZ's son and that she liaised with staff in school weekly. That makes three out of the five reasons that mention some degree of personal involvement. And the remaining two reasons both refer to witness 3's evidence. I conclude that witness 2's personal involvement with the assessment was a significant factor in the tribunal's reasoning, although by no means the dominant one or a decisive one.”

He continued: “The tribunal went on to give ten reasons why it preferred the report of witnesses 2 and 3 to that of witness 1. It had accepted the mistake in relation to his contact with AWZ's son, but did not explain how that contact was relevant to its assessment overall. It did, though, mention it as background to, or part of, some of its reasons for preferring the evidence of witnesses 2 and 3. That aside, the reasons consist largely of short comments on the limitations in witness 1's evidence, supported by quotations from his report. The tribunal did not, though, bring those points into a focus to show their combined effect, nor set up a comparison with the favourable points it listed for the joint report.  

“It may be possible to discern why, taking the evidence of all three witnesses as a whole, the tribunal preferred the evidence it did. But that is not the purpose of a tribunal's reasons. Taking account of the factors I have set out as a whole, I consider that the test set out in HK is met and the decision must be set aside.”

The case was remitted to the First-tier Tribunal.

Lottie Winson