The power to award costs in special educational needs cases should be used “sparingly” but there will be cases where it is justified, the Upper Tribunal has ruled.
Judge Lane was ruling in LW v Hertfordshire County Council (SEN) [2019] UKUT 109 (AAC), in which the defendant council sought costs for the claimant’s unreasonable conduct of the litigation.
Section 29 of the Tribunals, Courts and Enforcement Act 2007 and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 give the Upper Tribunal the power to award costs in cases involving special educational needs.
The tribunal cited the decision of Upper Tribunal Judge Rowley in MG v Cambridgeshire County Council (SEN) [2017] AACR 35, in which he said First-tier Tribunals should apply considerable restraint when considering an application for costs under rule 10.
Judge Rowley said orders should be the exception, not the rule, and should be made only in the most obvious cases. He considered that it was “crucially important… to begin by emphasising that nothing in this decision should be taken as encouraging applications for costs.
“The general rule in this jurisdiction is that there should be no order for costs. Tribunal proceedings should be as brief, straightforward and informal as possible. And it is crucial that parties should not be deterred from bringing or defending appeals through fear of an application for costs”.
Judge Lane said that while there was “much to agree with” in that statement, there were caveats. He explained: “Before the Tribunals, Courts and Enforcement Act 2007, special educational needs decisions from a local education authority were heard by way of judicial review in the High Court. It was not a cost-free regime.
“Parliament chose to continue the power to award costs when these cases moved to the tribunal system. There is no direct comparison with social security cases [now in the First-tier Tribunal (Social Entitlement Chamber)] where there has never been a power to award costs.
“The power to award costs in special educational needs cases should certainly be used sparingly, lest ordinary people are frozen out of the specialist justice forum that tribunals uniquely provide. It will generally be inappropriate in a jurisdiction such this, where parents will often be acting on their own or with representatives who are not legally qualified, to encourage satellite applications for costs.
“But there will inevitably be cases in which the one side or the other abuses the generosity of the system. It is for these that a tribunal’s discretionary power to award costs should be reserved.”
In this case, he found that the claimant had acted unreasonably by delaying her withdrawal of the appeal until a week before the scheduled hearing.
He summarily assessed the costs payable as a result of this conduct at £5,245.