John Friel has recently been successful in an appeal to the Upper Tribunal in LW v Norfolk County Council (SEN)  UKUT 0065 (AAC) regarding the proper application of the powers of the First Tier Tribunal set out in section 9 of the Tribunals Courts and Enforcement Act 2007.
Section 9(1) gives the FTT the power to review a decision made by it on a matter in a case (unless it is an excluded decision for the purposes of s11). The application of that provision is supplemented by Rules 47 to 50 of the Tribunal Procedure (FTT) (HESCC) Rules 2008. Where the FTT decides to review its decision, pursuant to section 9(4) the FTT may do any of the following:
(a) correct accidental errors in the decision;
(b) amend reasons given for the decision; or
(c) set the decision aside.
In this case, there was some ambiguity as to whether the reviewing judge was amending the reasons for the decision or had in fact set the decision aside. Fortunately, the parties managed to agree that the review decision was effectively setting aside the FTT original’s decision and had remitted the matter back to the FTT to re-heard. However, the fun did not stop there. On remitting the case to the FTT, the reviewing judge introduced procedural irregularities (discussing the matters to be reviewed with the original panel chair and fettering the scope of the decision to be made by the panel which was to re-decide the matter) which UT Judge Rowley found “of such a magnitude as to cause procedural unfairness and taint the review process to such an extent” that his order could consequently be of no effect. As a result the appeal actually lay against the FTT’s original decision which contained errors of law which had been identified by the reviewing judge and therefore the decision was set aside. The matter has consequently been remitted to the FTT for a new hearing. The case is to be reported in the Education Law Reports.
For more information, please refer to the judgment in LW v Norfolk County council (SEN)  UKUT 0065 (AAC).
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