Council secures re-hearing after automatic barring in SEN case over failure to provide paper copy of bundle

Upper Tribunal Judge Stout concluded that the First-tier Tribunal's refusal to reinstate the local authority was “perverse”, noting that barring and strike-out are “measures of last resort”.

In the proceedings, the council sought to challenge, by way of an application for judicial review, a decision of the First-tier Tribunal from April 2026.

The First-tier Tribunal's decision was made on an appeal brought by the respondent parent (DMS) under section 51(2)(e) of the Children and Families Act 2014 in respect of Sections B, F and I of her son's (C's) education, health and care plan.

By that decision, the First-tier Tribunal treated the local authority as barred from participating in the proceedings, refused to lift the bar, excluded the council's representative from the hearing and proceeded to make a decision in relation to the appeal in the absence of the local authority.

Considering the case as a rolled-up hearing, Judge Stout determined the following issues:

• Whether permission to apply for judicial review should be granted;
• If not, whether the Upper Tribunal has power to convert the application to an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) and, if so, whether it should exercise that power;
• If permission to appeal is granted, to consider the substantive merits of the case and make a final determination in the matter.

The background to the case is that in September 2025, a Tribunal Officer for the local authority sent an electronic version of the Hearing Bundle to the First-tier Tribunal, copying in DMS.

By email a week later, DMS wrote to the First-tier Tribunal, copying in the council, apologising for the late submission of her Case Review Form and stating: "I have not received a paper bundle from the LA as yet. I understood it to be mandatory?"

The next day, the local authority's Tribunal Officer replied: "I would be happy to arrange for a paper copy of the hearing bundle to be delivered to your home address. We usually provide a paper copy only upon request, as most parents find the electronic version sufficient. Please let me know if you would still prefer a paper copy, and I will organise delivery as soon as possible."

DMS replied by attaching a letter to the First-tier Tribunal, together with a copy of the First-tier Tribunal's Case Directions.

The letter had DMS's home address at the top. The letter stated that the council had not provided a paper bundle, that according to the First-tier Tribunal's directions the local authority was therefore barred from the appeal process and could not be represented.

Upper Tribunal Judge Stout observed: “Although DMS had made clear that a paper bundle had not been provided, I observed at the Upper Tribunal hearing that she had not specifically responded to the LA's question as to whether she required a paper copy in addition to the electronic version. At this hearing, DMS replied that she believed this was because she had around this time had a conversation with the LA's representative and told them that she had printed her own copy.”

The First-tier Tribunal treated the local authority as having been automatically barred for failing to send the parent a paper copy of the bundle as well as an electronic copy.

The Tribunal refused the local authority's application for reinstatement and excluded the local authority's representative from the hearing.

Considering whether permission to apply for judicial review should be granted, the Upper Tribunal first found that the appropriate route for challenging the First-tier Tribunal's decision was an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007).

Judge Stout said: “DMS has suffered no material procedural prejudice as a result of the route adopted by the LA. Because this is a meritorious appeal, if it had taken the correct procedural route, it was always likely to succeed.

“In the event, by dealing with the case on a 'rolled-up' basis as I have done, the overall delay for the parties has been minimised. DMS received notice of the LA's challenge, provided a full response and has had the opportunity to address both the procedural question and the merits. Any delay attributable to the LA's mistake does not outweigh the strong merits of the appeal or the significance of the First-tier Tribunal's error.

“I therefore waive the procedural irregularities under rule 7(2). I convert the application for permission to apply for judicial review to an application for permission to appeal under section 11 of the TCEA 2007. I remove the First-tier Tribunal as a respondent to these proceedings, and make DMS (who was an "interested party" in the judicial review) the respondent to the appeal. I grant permission to appeal.”

Turning to the substantive merits of the case, the Upper Tribunal observed that where a case management direction provides that the local authority will be automatically barred if it fails "without reasonable explanation" to comply with the direction, it does not have the effect of automatically barring a local authority that fails to comply: a judicial determination must first be made as to whether the local authority had a reasonable explanation for the failure.

“Automatic barring directions in this form under rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 are misleading and should be avoided in future. In standard case management directions, it is likely to be preferable to use the discretionary barring power in rule 8(4)(a).”

The Upper Tribunal found that the First-tier Tribunal's direction in relation to the provision of a paper bundle had, with effect from 15 July 2025, been superseded by paragraph 53 of the Practice Direction on Procedure for the Preparation of Bundles in the Special Educational Needs and Disability and Disability Discrimination in Schools jurisdictions of the Health, Education and Social Care Chamber.

Accordingly, a paper copy only needed to be supplied if it was "specifically and reasonably requested". No such request had been made, so the First-tier Tribunal had erred in treating the local authority as having failed to comply.

The Upper Tribunal found that the First-tier Tribunal's refusal to reinstate the local authority was also perverse, adding that barring and strike-out are “measures of last resort”.

The discretion to make them, or to refuse to reinstate, needs to be exercised in accordance with the overriding objective, taking into account the nature and extent of the default and whether there is any prejudice to the other party or the fairness of the hearing that cannot appropriately be remedied by way of an order for costs or other case management direction, the Upper Tribunal found.

Judge Stout concluded that in the present case, the fairness of the hearing had not been affected because the parent had the electronic bundle and had printed her own paper copy nearly seven months before the hearing.

Any prejudice to the parent as a result of having to print her own copy could have been remedied by way of a costs order, if the Tribunal considered that appropriate.

She said: “I conclude that the decision of the First-tier Tribunal involved material errors of law. I set that decision aside and remit the case to the First-tier Tribunal for re-hearing before a different Tribunal panel. As always, however, the parties are encouraged if possible to reach agreement. If they are able to do so, they should notify the First-tier Tribunal as soon as possible.”

Lottie Winson