An important judgment in an education case brought by CCLC sets out the law and procedure which should apply when applications for costs are made in the First Tier Tribunal.
In the case of MG v Cambridgeshire County Council (SEN) [2017] UKUT 0172 (AAC), CCLC represented the parent of a child with special educational needs in a case in the Upper Tribunal (UT). The case is important because, having successfully appealed against various sections of the child’s education, health and care plan (EHCP) before the First Tier Tribunal (Special Educational Needs and Disability) (FTT), CCLC made an application for costs against the respondent local authority. This is the issue that ultimately became before the UT for a decision.
The parent was eligible for legal aid and so we were advising and assisting her with her appeal before the FTT and our costs would normally have been paid by the Legal Aid Agency. In this case however, we believed that the LA had acted unreasonably in defending the appeal from 9.6.15 and so we made the application asking the FTT to direct that the LA should pay our costs from that date. The LA did not agree and so it opposed our application. Although costs orders are rare in the FTT, on 15.5.16 the adjudicating judge agreed that the LA had acted unreasonably in defending the appeal from 9.6.15 and directed that the LA pay our costs but not in the amount we had original said were payable.
We notified the FTT that we intended to appeal against the decision. The judge who dealt with that set aside the previous decision and considered our application afresh on 25.7.16. That judge decided that the date from which the LA had acted unreasonably in defending the appeal was in fact a much later date – 24.2.16 and so the costs that judge directed be paid were much lower than the first decision and the rates used to calculate those costs were also lower. We applied to appeal against that decision. The FTT refused to give us permission to appeal but the UT granted us permission to appeal on 7.11.16.
Essentially our appeal focused on the judge’s calculation of our costs. The FTT judge used a legal aid rate from the Legal Aid Agency’s old 2010 Payment Annex rather than the inter partes rates which is used in most civil proceedings. We said this was wrong. The UT judge agreed with us and set the FTT judge’s decision aside. The UT judge then went on to consider the application costs completely afresh and like the previous judges agreed that the LA had acted unreasonably in defending the appeal that our client (the child’s parent) brought to the FTT about the child’s EHCP. The UT judge said that the LA’s conduct was such that it justified making an order for costs because the LA’s conduct led to us having to incur significant and unnecessary costs in continuing to deal with the FTT appeal case.
The UT judge’s decision is detailed and can be read in full here. It is important because the judge has carefully set out the law and procedure which should apply to these sorts of applications for costs in the FTT and also offered guidance on best practice. The judge said: “it may be helpful if I were to give some guidance on the approach to be taken by the First-tier Tribunal in assessing the amount of costs under rule 10 of the 2008 Rules.”
The case can be found through this website.
The full tribunal decision is here.
