IN THE UPPER TRIBUNAL Case No  HS/1371/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before:

 

Mr Justice Walker CP

Upper Tribunal Judge Ward

Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

 

 

Attendances:

 

Mr Allard in person, accompanied by Mr S Simington, owner and director of Eccles Hall School Limited

 

No attendance by Mrs B or by Suffolk County Council.

 

Decision:

 

(A)  Mr Allard failed to comply with the witness summons dated 30 April 2010.

 

(B) In the exercise of the powers conferred upon it by section 25 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal orders Mr Allard to pay a fine of £500.

 

(C) Payment must be made within 28 days of service of this decision (subject to any successful application under (D)).

 

(D) Mr Allard has liberty to apply to the Upper Tribunal, before expiry of the period referred to in (C), for that period to be varied and/or for provision to be made by the Upper Tribunal for the fine to be payable by instalments.

 

(E) Acting under section 16(3) of the Contempt of Court Act 1981 the Upper Tribunal  specifies a term of imprisonment which will apply if payment is not made within the  period specified at (C)(subject as above).  In that eventuality, Mr Allard is sentenced to a term of imprisonment of 7 days.

 

REASONS FOR DECISION

 

1. This is a reference to the Upper Tribunal by the First-tier Tribunal (Health, Education and Social Care Chamber) under rule 7 of its rules of procedure (SI 2008/2699, as amended) (“the HESC Rules”).  It concerns Mr Richard Allard, who is the headmaster of the New Eccles Hall School (“the school”). Mr Allard did not attend a hearing of the First-tier Tribunal on 25 May 2010 when a witness summons had been served on him requiring him to do so.

 

The facts

 

2. The school is an independent school, owned by Eccles Hall School Limited, a company of which Mr Simington is the sole shareholder.  It has two directors.  Mr Simington is the only executive director, carrying out a role of bursar.  Until 1996 he was the headmaster.  It is a small school, with around 140 pupils.  It offers both day and boarding provision. It prides itself on the encouragement it can provide for young people who have difficulties with learning. Some 90 of its pupils have statements of special educational needs.  Others may have special educational needs, but without statements.  It is however, a mainstream school, not a special school. Mr Allard is the current headmaster.  Both Mr Allard (with a four year gap) and Mr Simington have been involved in the school since 1976.  They share responsibility for strategic matters affecting the school.

 

3. On 28 January 2008, the school was visited by Mrs B and her son A, then approaching the age of 10, with a view to his possible admission. While there may have been some further contact between the school and Mrs B and/or Ms W, a “supporter” assisting Mrs B meanwhile, the next development of significance occurred in September 2009 when A visited again. On that visit, Mr Allard told Mrs B that the school could offer A a place.  This, at any rate on the school’s part, was intended to be as a day pupil. It appears that Mrs B  emailed to indicate that she wished A to attend the school and on 2 October 2009 Mr Allard wrote to her recording her wish and providing a summary of the school’s observations on assessing A  and a description of how the school proposed to meet his needs.

 

4. The school has had a long-standing policy of not becoming involved in tribunal proceedings. The policy was not formally documented. The rationale was variously explained to us as being that the school did not wish to (as it perceived it) take sides in the context of a dispute between parents of a child and the local authority; that the school trusted the local authorities to decide whether it was right for a child to attend the school, about which the local authorities knew a great deal; that the staff of the school were employed to teach young people and were neither permitted nor equipped by their training to appear in a tribunal; and that  the school felt that to appear in the tribunal would compromise its integrity.  The school was fully prepared to co-operate with requests (including from tribunals) for information in writing and had done so in the past.  Mr Allard says, and we have no reason to doubt it, that he would have told Mrs B in both January 2008 and September 2009 of this policy.

 

5. In around early November 2009 Mr Allard was approached by Mrs B to complete a form required by the tribunal.  On 11 November 2009 he signed it.  It was in the following terms (emboldening and grammar in original):

 

“SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL

PROVISION OF PLACE AT SCHOOL PROPOSED

 

[The child, local authority and school were named]

 

An appeal has been made to the Special Educational Needs and Disability Tribunal and The New Eccles Hall School has been proposed as the appropriate placement for [A] born [in 1998] and should be named in a statement of special educational needs.

 

As headteacher of that school, I confirm that the school has agreed to admit [A] and that a place will be… held for his admission until Sept 2010.”

 

6. Mrs B’s appeal, which was against Parts 2, 3 and 4 of the statement, first came on for hearing on 24 March 2010.  Mrs B was not represented. The hearing was adjourned because the tribunal considered there was insufficient information provided to enable it to determine the school to be named in Part 4 of A’s statement. The adjournment notice also recorded that a witness summons was to be issued for Mr Allard to attend on 25 May 2010 when the hearing would resume.  The decision to issue a summons was taken by the tribunal of its own motion.

 

7. On or around 25 March, a local authority officer, Ms Stanley, had telephoned Mr Allard and left a message with his secretary. The message evidently alluded to the likelihood of a witness summons being issued and prompted a letter in response from Mr Allard to the local authority’s educational psychologist saying:

 

“I believe that Helen [Ms Stanley] was placed in a very difficult position. It would appear that the Tribunal now wish to set a date and call one of our staff to present evidence. Our school has long held the view that it will not represent either parents or Local Authority at tribunal.  The suggestion from the Tribunal via Helen was that I would be subpoenaed.  This is not a suggestion that I relish.  I reiterate that I would not attend a Tribunal subpoenaed or not, nor would I permit a member of staff to be put in that situation.”

 

8. It was not until 7 May 2010 that Mr Allard received the witness summons.  It was in the following form (emboldening in original):

 

“WITNESS SUMMONS

 

[Mr Allard’s name and professional address are correctly set out and A’s name and the case reference are given]

 

We will be holding a hearing to consider an appeal against Suffolk Local Education Authority’s decision about [A’s] special educational needs.  You must attend the hearing as a witness at 10 00am, on 25 May 2010 at the address below [then given].

 

If the hearing is adjourned, you must also attend the rescheduled hearing.

 

When you attend, you have to answer any questions you are asked relating to the appeal.

 

If you do not attend and do not have a reasonable excuse, you may have to pay a fine or may be imprisoned.

 

You can apply in writing to the tribunal to request to have this summons varied or set aside. If you have any queries please contact SENDIST [address then given]

 

You can claim back your travel expenses and a fixed amount for loss of earnings, from the Tribunal.  Please find attached explanatory notes and a claim form.”

 

The summons was signed pp Judge John Aitken, the Deputy Chamber President of the Health Education and Social Care Chamber, First-tier Tribunal with responsibility for the Special Educational Needs jurisdiction.

 

The explanatory notes and a claim form were enclosed. Those documents were in the Upper Tribunal bundle.

 

9.  On 13 May 2010 Mr Allard wrote to Judge Aitken:

 

“Thank you for your invitation to attend a tribunal for [A] to be held on 25 May 2010 at 10.00am in Norwich.  We found the tone of the letter unnecessarily threatening and intimidating.”

 

Reference was then made to the school’s policy, including that the school:

 

“does not expect, nor does it allow, its employees to argue the case for, or against, in a court of law for a particular child to be funded in this private school.”

 

It went on also to refer to the other commitments of the staff. The letter indicated that the school had provided in writing all information that had been requested, that, although there now appeared to be a query in relation to boarding, what it had offered was a day place and that the school had already informed Mrs B that whilst it would provide factual information for the tribunal, it was not prepared to attend one.  It concluded:

 

“In order to be of assistance to all parties we would be happy to answer any further questions in writing as we have always done in the past.  If this is not sufficient we will be left with no option other than to withdraw the offer of a day place for [A] for all the reasons stated above.”

 

This was the first time that the school had communicated its threat to withdraw the place if required to attend the tribunal. 

 

10. The letter of 13 May was not intended by Mr Allard to be an application for the witness summons to be set aside  However, a tribunal judge decided (to the possible advantage of Mr Allard) to treat it as such. The decision on that

application, communicated by a letter dated 19 May 2010, pointed out that the purpose of attendance was to assist the tribunal, rather than to “argue the case for, or against” a particular party, and mentioned in general terms the perceived limitations of the material thus far available to the tribunal. While regretting any inconvenience to Mr Allard, the judge therefore refused the application.

 

11. After setting out the decision, the letter concluded:

 

“The First-Tier Tribunal Judge has refused your request to set aside the witness summons, as such you, or your representative, have

the right to “renew” your application for the witness summons to be set aside to the Upper Tribunal.

 

To do this you need to contact the Upper Tribunal at the following address [The correct postal address, switchboard and fax numbers for the Administrative Appeals Chamber (“AAC”) of the Upper Tribunal were then set out.]

 

We return to the contents of this paragraph at [26] below.

 

12. The school received the letter of 19 May on Thursday 20^th or Friday 21^st.  Mr Allard claims to have rung the office of the Upper Tribunal on the Friday and to have been told that the necessary form would be emailed to him.  There is no record of his call, but we are prepared to accept that he did so.  He did not receive the form. On Monday 24th he claims to have made a further call, but that the phone rang unanswered. Again, we are prepared to assume this in his favour, although the switchboard is in general staffed continuously during office hours.  There is no evidence that Mr Allard made any further attempt to contact the Upper Tribunal.  He did not make any attempt to obtain the necessary information via the internet (which would have provided it), as it had not been drawn to his attention that there was a relevant website. He rather phoned the office of the First-tier Tribunal at Darlington and informed them that he was withdrawing the place for A and would not be attending the tribunal. The person at the other end of the phone appeared to go off to consult with someone and on returning informed Mr Allard that the matter would be referred to the Upper Tribunal.

 

13. At no stage did it occur to Mr Allard to ask the office in Darlington if the witness summons could be suspended or the hearing delayed to enable him to make the challenge before the Upper Tribunal he had been trying, so far unsuccessfully, to make; nor did it occur to him to attend on 25 May and make the point to the First-tier Tribunal.  At no stage did Mr Allard or the school take any legal advice.

 

14. On 24 May, still one day before the hearing, Mr Allard wrote to Mrs B confirming that the offer of a place was withdrawn and copying in the local authority. On 25 May Mr Allard did not attend the hearing, which had to be adjourned again, this time until 14 July, and a direction was made for the referral of his non-attendance to the Upper Tribunal. The referral was duly made by letter dated 2 June 2010.

 

The law

 

15. The power to make Tribunal Procedure Rules is conferred by section 22 of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”):

 

“(1) There are to be rules, to be called “Tribunal Procedure Rules”, governing–

(a) the practice and procedure to be followed in the First-tier Tribunal, and

(b) the practice and procedure to be followed in the Upper Tribunal.

 

(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.

 

(3) In Schedule 5–

Part 1 makes further provision about the content of Tribunal Procedure Rules,
Part 2 makes provision about the membership of the Tribunal Procedure Committee,
Part 3 makes provision about the making of Tribunal Procedure Rules by the Committee, and
Part 4 confers power to amend legislation in connection with Tribunal Procedure Rules.

 

(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing–

(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,

(b) that the tribunal system is accessible and fair,

(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,

(d) that the rules are both simple and simply expressed, and

(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.

 

(5) In subsection (4)(b) “the tribunal system” means the system for   deciding matters within the jurisdiction of the First-tier Tribunal or the   Upper Tribunal.”

 

16. Further provision is made by Schedule 5 of the 2007 Act, of which it is only necessary to refer to part of paragraph 10:

 

“(3) Rules may make provision, where the First-tier Tribunal has required a person–

(a) to attend at any place for the purpose of giving evidence,

(b) otherwise to make himself available to give evidence,

(c) to swear an oath in connection with the giving of evidence,

(d) to give evidence as a witness,

(e) to produce a document, or

(f) to facilitate the inspection of a document or any other thing (including any premises),

for the Upper Tribunal to deal with non-compliance with the requirement as though the requirement had been imposed by the Upper Tribunal.

 

(4) Rules may make provision for the payment of expenses and allowances to persons giving evidence, producing documents, attending proceedings or required to attend proceedings.”

 

17. Thus it is that rule 16 of the HESC Rules provides:

 

“(1) On the application of a party or on its own initiative, the Tribunal may—

(a) by summons require any person to attend as a witness at a hearing at the time and place specified in the summons; or

(b) order any person to answer any questions or produce any documents in that person's possession or control which relate to any issue in the proceedings.

 

(2) A summons under paragraph (1)(a) must—

(a) give the person required to attend 14 days' notice of the hearing, or such shorter period as the Tribunal may direct; and

(b) where the person is not a party, make provision for the person's necessary expenses of attendance to be paid, and state who is to pay them.

 

(3) No person may be compelled to give any evidence or produce any document that the person could not be compelled to give or produce on a trial of an action in a court of law.

 

(4) A summons or order under this rule must—

(a) state that the person on whom the requirement is imposed may   apply to the Tribunal to vary or set aside the summons or order, if they have not had an opportunity to object to it; and

(b) state the consequences of failure to comply with the summons or order.”

 

18. Enforcement is addressed by rule 7 of the HESC rules:

 

“(3) The Tribunal may refer to the Upper Tribunal, and ask the Upper Tribunal to exercise its power under section 25 of the 2007 Act in relation to, any failure by a person to comply with a requirement imposed by the Tribunal—

(a) to attend at any place for the purpose of giving evidence;

(b) otherwise to make themselves available to give evidence;

(c) to swear an oath in connection with the giving of evidence;

(d) to give evidence as a witness;

(e) to produce a document; or

(f) to facilitate the inspection of a document or any other thing (including any premises).”

 

19. Provision is made by rule 7 of the Tribunal Procedure (Upper Tribunal) Rules 2008 SI 2008/2698 as amended (“the UT Rules”) as to what should happen on such a reference:

 

“(3) Paragraph (4) applies where the First-tier Tribunal has referred to the Upper Tribunal a failure by a person to comply with a requirement imposed by the First-tier Tribunal—

(a) to attend at any place for the purpose of giving evidence;

(b) otherwise to make themselves available to give evidence;

(c) to swear an oath in connection with the giving of evidence;

(d) to give evidence as a witness;

(e) to produce a document; or

(f) to facilitate the inspection of a document or any other thing (including any premises).

 

(4) The Upper Tribunal may exercise its power under section 25 of the 2007 Act (supplementary powers of the Upper Tribunal) in relation to such non-compliance as if the requirement had been imposed by the Upper Tribunal.”

 

20. Section 25 of the 2007 Act is in the following terms:

 

“(1) In relation to the matters mentioned in subsection (2), the Upper Tribunal–

(a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and

(b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session.

 

(2) The matters are–

(a) the attendance and examination of witnesses,

(b) the production and inspection of documents, and

(c) all other matters incidental to the Upper Tribunal's functions.

 

(3) Subsection (1) shall not be taken–

(a) to limit any power to make Tribunal Procedure Rules;

(b) to be limited by anything in Tribunal Procedure Rules other than an express limitation.

 

(4) [not material].”

 

21. Finally, it is necessary to refer to section 11(2) of the 2007 Act:

 

“(2) Any party to a case has a right of appeal, subject to subsection (8).”

 

Sub-section (8) is not material.

 

Conclusions

 

22. Thus it is that we find ourselves considering whether Mr Allard’s non- attendance should be punished as a contempt of court, as would be the issue for the High Court. We do so however not against a background of the provisions of the Civil Procedure Rules and associated Practice Statements which would apply in the High Court, nor of statutory provisions such as section 36(4) of the Senior Courts Act 1981, whose impact we consider to be confined to the High Court.  Rather, we consider that in passing the 2007 Act, Parliament was intending to confer upon the Tribunal Procedure Committee the power to make the necessary provisions to regulate the issuing of witness summonses by the First-tier Tribunal and the conduct of references to the Upper Tribunal.  It would be in our view both surprising and undesirable – not least in view of the aims stated in section 22(4) of the 2007 Act - if it was necessary to apply a raft of measures from other sources, so that one could not take at face value what was stated in the Tribunal Procedure Rules.

 

23. This is not a case where the issue of the witness summons was compromised by the sort of difficulties which concerned the Upper Tribunal in MD v Secretary of State for Work and Pensions [2010] UKUT 202 AAC  The summons was properly addressed, gave details of the hearing, gave the requisite notice, indicated the right to apply to have the summons set aside or varied and stated the consequences of failure to comply, all as required by rule 16 of the HESC Rules. Mr Allard may have found the tone “unnecessarily threatening or intimidating” but that may have been because he misguidedly viewed it as an “invitation” rather than the requirement which it actually was. In our view, no criticism can be made of the language of the summons: it merely set out, in clear English appropriate to the seriousness of the matter, what rule 16 required.

 

24. The Tribunals Service operates a scheme of expenses for witnesses, which makes provision for public transport or a mileage allowance and for payment of a fixed amount for loss of earnings (equal to that paid for jury service) where earnings have indeed been lost.  It is the Tribunals Service itself which pays, against a valid claim.  Mr Allard takes no point in relation to the scheme of allowances and we hold that the terms of rule 16(2)(b) were sufficiently complied with. In MD the Upper Tribunal drew attention to the likely extent of the financial loss incurred by a doctor called to give evidence. This should not be understood as suggesting that a doctor is entitled to be recompensed for that financial loss.  Rather, the potential for financial detriment to a doctor (and possibly others) in attending is a relevant factor to the tribunal’s decision whether to issue a witness summons in the first place (to which we return below).

 

25. We consider that the tribunal judge was fully entitled to treat the letter of 13 May as an application for the witness summons to be set aside.  To do so was compatible with the overriding objective of dealing with cases fairly and justly, in particular by “avoiding unnecessary formality and seeking flexibility in the proceedings” (rule 2(2) (b)). But once a decision had been taken that the witness summons was not to be varied or set aside, how else, if at all, could it be challenged further?

 

26. Section 11(2) of the 2007 Act only confers a right of appeal on a party to a case.  Mr Allard was not such a party.  Sub-section 11(8) enables the Lord Chancellor by order to make provision for a person to be treated as being a party to a case for this purpose, but no such order has been made.  Accordingly, Mr Allard did not have a right of appeal to the Upper Tribunal. Nor, despite what is said in the First-tier Tribunal’s letter of 19 May, was there any right – as such - to renew his application to have the witness summons varied or set aside before the Upper Tribunal.  What however he could have done was to make an application for permission for judicial review of the decisions to issue the witness summons and not to vary it or set it aside. Such an application would fall within the terms of the Lord Chief Justice’s Direction on Classes of Cases specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007, as being (under paragraph 2(b) of the Direction):

 

 “Any decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal and that decision is not an excluded decision within paragraph (b), (c), or (f) of section 11(5) of the 2007 Act. “

 

We are not concerned here with such an excluded decision.  Consequently such an application would fall to be made to the Upper Tribunal.

 

27. Judicial review is an appropriate route to challenge a decision to issue a witness summons. The Upper Tribunal would have the opportunity to consider, among other matters, both the terms of the tribunal’s direction leading up to the issue of the witness summons and the grounds on which an application to vary it or set it aside had been refused (which we would expect, as here, to be a reasoned decision.)  There are mechanisms within the Upper Tribunal for such an application to be considered urgently where necessary. As regards special educational needs and other matters allocated to the AAC these mechanisms are currently set out on the “Forms and Guidance”  page of the AAC website.

 

28. The Upper Tribunal in MD questioned whether the issuing of a witness summons in that case was appropriate. It is important that witness summonses should be appropriately used and we return to this in [29] below.  We stress that neither MD nor the present case gives any encouragement whatever to a mistaken view that a person on whom a witness summons is served can simply sit back, await any reference to the Upper Tribunal and only then argue that the witness summons was not appropriately issued. A witness summons issued by the First-tier Tribunal is to be complied with, unless and until it has been set aside or varied by the First-tier Tribunal under rule 16(4) or set aside by the Upper Tribunal on an application for judicial review.

 

29. Though not necessary for our decision, we observe that attendance at a tribunal will inevitably take up a witness’s time that might have been profitably deployed elsewhere. For a school with a very high proportion of children who have statements of special educational needs, the burden of being repeatedly required to attend the tribunal might be considerable.  It may result in a degree of financial loss to the witness and to the employer.  Tribunals should always consider alternatives to personal attendance available to them under relevant Tribunal Procedure Rules, including the power  under rule 16(1)(b) to order a person to answer any questions or produce any documents in that person’s possession or control which relate to any issue in the proceedings.  There will nevertheless be cases where requiring the attendance of a witness is appropriate. As with other case management decisions, provided that relevant factors have been considered, the Upper Tribunal will be reluctant to set aside a witness summons in the exercise of its judicial review jurisdiction. Relevant factors – none of them intended to be prescriptive – may include the following:

(1) the sequential nature of issues to be determined by a tribunal may make it very difficult for questions to be formulated on one point until evidence has been taken on the others: the special educational needs jurisdiction provides an example of this, as the description of the child’s needs in Part 2 of the statement, the provision required to meet those needs in Part 3 of the statement and the school to be named in Part 4 of the statement have to be decided sequentially.

(2)  Rule 2(2)(c) provides that dealing with a case fairly and justly includes ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. Thus there will be cases where either or both of the parties (or the expert tribunal members themselves) wish to have the opportunity to question the witness about his or her evidence. For example, one piece of the witness’s evidence may generate further lines of enquiry, as those present come to grips with the possible implications of the evidence which has been given.

(3) Because of the nature of their work, many jurisdictions seek to bring cases on promptly, and rule 2(2)(d) provides that dealing with a case fairly and justly includes avoiding delay, so far as compatible with proper consideration of the issues. Special Educational Needs Tribunals rightly make every effort to hear their cases speedily and we acknowledge that there may come a point when the most effective way of doing this, in the interests of the child, is to require the attendance of relevant witnesses, rather than to risk delay while written questions are asked and answered, possibly unsatisfactorily, and a summons then has to be issued in respect of the witness’s attendance anyway. 

(4) There can be great benefits in having everyone with relevant evidence to give sitting around the table together. Tribunals have a wide discretion in case management and it is often a question of balancing competing interests.  Consequently, we would not wish to suggest that every last avenue must always be explored to avoid issuing a witness summons.  Tribunals will, as always, need to be guided by the terms of the overriding objective in rule 2. 

 

30. Mr Allard was undoubtedly in breach of the witness summons by not attending in accordance with it. There is however an unusual feature of this case. An independent school may in general offer places to whom it pleases, subject to laws prohibiting unlawful discrimination (of which no suggestion has been made here). Once Mr Allard had purported to withdraw the offer of a place to A, then was there anything left on which he could meaningfully give evidence as to the provision the school would make for A, were he to attend? We do not consider that Mr Allard can rely on his own act to defeat the materiality of his evidence in these circumstances.  First, he had previously given a written assurance to the tribunal that a place would be available for A until September 2010. That assurance was sought so that the tribunal could feel confident that it was considering a concrete proposal and not wasting its time and public funds considering a possibility which would subsequently evaporate. By purportedly withdrawing the offer, Mr Allard was in breach of that assurance. He asserted that circumstances had changed; yet the only circumstances that had changed were that the tribunal had issued a witness summons with which he, in accordance with his employer’s policy, did not wish or intend to comply. Second, if one assumes that it was a term of any offer of a place that Mr Allard (or other member of the school’s staff) would not be called upon to give evidence at a tribunal, the courts have shown themselves ready to override such provisions where the interests of justice exceptionally so require: see Farm Assist Limited (in liquidation) v the Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC), We add that whether the place had, truly, been withdrawn, and the reasons for withdrawal following the written undertaking to keep the place open, might have been issues that the panel, quite properly, wished to explore. It is for the tribunal, not the person summoned, to determine whether attendance is necessary.

 

31. We are mindful that Mr Allard was loyally implementing the policies of his employer.  However, he was not in a position where he was powerless to effect change, for he and Mr Simington shared responsibility in practice for strategic issues affecting the school. The reasons why the policy was adopted have been presented to us in varying ways. None takes proper account of the policy of Parliament in this area. In establishing what was formerly SENDIST and now is the relevant part of the Health, Education and Social Care Chamber of the First-tier Tribunal, Parliament intended that decisions about the school provision for pupils with statements of special educational needs should not be left solely to schools, or to local authorities, but that there should be a tribunal to balance the various interests involved.  The proper operation of that mechanism was deliberately thwarted (albeit without giving proper consideration to Parliament’s intention) by the policy adopted by the school and implemented by Mr Allard.

 

32. Mr Allard said, in mitigation, that when he thought of a tribunal he did not think of the law but rather of it as a mediation service between the local authority and parent. We do not entirely accept this as an accurate statement of his position, given that he had earlier written to the First-tier Tribunal that the school:

 

“does not expect, nor does it allow, its employees to argue the case for, or against, in a court of law for a particular child to be funded in this private school.” (emphasis added).

 

In any event, ignorance of the law is not an excuse.

 

33. Of course, in one sense, a tribunal will, in the discharge of its statutory duties, endeavour to find common ground between the local authority and parent.  Perhaps more than many others, tribunals hearing special educational needs cases are at pains to foster a collaborative approach wherever possible, avoiding excessive legalism, recognising that the interests of the pupil concerned are likely best to be served by such an approach to dispute resolution, when parents and local authority – despite, at times, sharp differences of view - are likely to have to continue in a working relationship for many years.  It would, however, be a mistake to infer from their working style that such tribunals are anything other than tribunals applying the law and with the authority of the law.

 

34. It must be acknowledged however that Mr Allard could have been better served by the Tribunals Service.  He was misinformed by the First-tier Tribunal, although the error was a somewhat technical one. We accept that he twice attempted to contact the Upper Tribunal office.  Had those contacts been effective, he would have been in a position to apply for permission for judicial review.  However we also consider that he was too ready to give up after one attempted  phone call on the Monday, given that he was facing a summons to attend the hearing the following day on threat of significant sanctions, including imprisonment. If he was not prepared personally to follow the matter up, or not in a position to do so, he or the school should have instructed lawyers.  In any event, having for whatever reason failed in last-minute attempts to challenge the summons, it was Mr Allard’s duty to comply with it.

 

35. It is also right to record that, towards the end of proceedings in the Upper Tribunal once invited to do so by the Chamber President, Mr Allard offered a full and unreserved apology on behalf of the school and himself, acknowledging the flaws in the approach he had adopted and offering an assurance that he and Mr Simington would review the school’s policy of non-attendance at tribunals.  That was an appropriate, if belated, step and, like the matters in [34], is a point which we bear in mind in considering the sanction to impose.

 

36. We indicated at the conclusion of the hearing that we were not considering imprisonment.  We do consider a fine to be appropriate, given in particular the matters set out at [31] above. In terms of the magnitude of the fine, though we are not bound by it, we derive some assistance from the provisions of section 336(5) of the Education Act 1996 which, in relation to Wales, make non compliance with such a summons issued by the equivalent tribunal in Wales an offence punishable on summary conviction with a fine not exceeding level 3 on the standard scale (i.e. £1000).  There are to some extent mitigating circumstances in the present case and we also consider what may be assumed to be the likely means of the headteacher of a small independent school.  We consider that the appropriate amount is £500.

 

 

 

 

Mr Justice Walker, Chamber President

 

 

 

Upper Tribunal Judge Ward

 

 

 

 Judge Hinchliffe DCP

 

18 November 2010