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Appellant ordered to pay £5k costs after acting unreasonably in SEN appeal

A mother has been ordered to pay Hertfordshire County Council costs of £5,245 after being held to have acted unreasonably over an appeal on her daughter’s schooling, a judgment published this week on Bailii has revealed.

The Upper Tribunal of the Administrative Appeals Chamber heard the First-Tier Tribunal had decided that child K was to attend school RF.

LW then appealed on the grounds that K should under her education health and care plan attend a mainstream school and not RF, which is a pupil referral unit.

Hertfordshire sought costs on the grounds that LW acted unreasonably in delaying her withdrawal of the appeal until a week before the scheduled hearing.

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The council also submitted that LW’s claim that there had been a significant change in K’s circumstances was false.

Upper Tribunal Judge SM Lane said in LW v Hertfordshire County Council (SEN) (Special educational needs - other) [2019] UKUT 109 (AAC) (28 March 2019): “Having read the papers, including over 100 pages of initially unpaginated evidence about K, I cannot see any material, let alone significant change in K’s circumstances.”

The judge went on: “I find that LW’s request for a mainstream school for K was unrealistic and unreal. It was the complete opposite of the case she put to the F-tT; and was plainly a non-runner given K’s known problems with fatigue and her previous inability to cope at a mainstream school.”

Judge Lane found that LW “has not come near to showing” that she raised the issue of mainstream schooling for K at the First-tier Tribunal, and that even if this was wrong “the F-tT would have been more than entitled to refuse [LW’s lawyer’s] request to make submissions on a completely new issue, diametrically opposed to the case LW had run, at the last minute. That would be to abuse of the F-tT’s inquisitorial function.”

The judge said there was no good reason why K could not attend RF and concluded “LW wanted to thwart the F-tT’s decision by whatever means necessary.

“I find that there had been no material change in K’s circumstances at any material time. All that changed was name given to the signs and symptoms described.”

Her conduct was judged unreasonable for the purposes of a costs order.

The tribunal noted that the appellant had the benefit of legal aid and was subject to costs protection in accordance with section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Mark Smulian

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