The facts of this appeal are very case-specific, but the important principle established is that a local authority (“LA”) can only be barred by a judge or a registrar, and not as an automatic procedure for failure to follow a direction without any judicial consideration. Whenever a party is barred, proper consideration must be given to whether this is in line with the overriding objective.  

The key events were: 

• 3 April 2018: the First-tier Tribunal (“FtT”) issued case directions requiring, amongst other things, the LA to provide final hearing bundles by 25 May 2018. The directions indicated that “[i]f the LA does not comply with the direction and fails without reasonable explanation to deliver the tribunal hearing bundles by the 25 May 2018 then the further participation of the LA in the appeal shall be automatically BARRED pursuant to Rule 8(2) of the Tribunal Procedure Rules.”  
• 25 May 2018: Deadline for serving bundles passed. 
• 29 May 2018: The LA filed and served the bundle and gave explanation for the delay. Half an hour later, an order was issued by administrative Tribunal staff barring the LA from participation in the appeal but allowed the LA to apply for reinstatement by writing by 1 June 2018.  
• 1 June 2018: Deadline for application for reinstatement passed. 
• 15 June 2018: LA’s representative attended the FtT hearing and applied for reinstatement. The FtT refused the application. The FtT went on to consider the case and allowed the parents’ appeal. The LA appealed to the Upper Tribunal (“UT”). 

 

While the LA had missed two deadlines, the UT found it was disproportionate to have barred them from the hearing: 

 

“14. It is clear that no consideration was given to the Order of 29 May 2018 either by a judge or by a Registrar… The authority was entitled to have the explanation it had put forward in its email of 29 May considered by a person authorised to do it and that did not happen. I note that the possibility of a reasonable explanation is not mentioned on the face of the Order. Whether the original order is to be viewed as not an automatic barring order at all or whether it became one but only once a duly authorised person had considered the explanation offered, the conditions for its applicability were not met. While the existence of the reinstatement procedure would have provided an opportunity, had the true facts been visible to the FtT hearing the case, to have corrected the error, for the reasons given above it does not excuse a failure to meet the conditions for the barring order to become operative in the first place.”  

 

“20. Further, the overriding objective of the FtT’s rules (which the FtT asserted it had considered) is to “deal with cases fairly and justly”, which includes “ensuring, so far as practicable, that the parties are able to participate fully in the proceedings” and it is not evident why it was not practicable to permit the local authority to participate further in the proceedings, notwithstanding the shortcomings in how it had handled the case, which it had subsequently sought to rectify.” 

 

 

As a result, the matter was sent back for re-hearing at the FtT. 

 

The full case report can be accessed here.  

Implications of the decision     This case is an example of why it’s not always a good thing to get the LA barred from participation. The wording in the standard FtT directions led the judge at the FtT hearing to conclude the LA must already be automatically barred because of the missed deadlines; however, the UT made clear that barring a party is a significant step that should only be taken after careful judicial consideration.