Decision of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (dated 3 July 2012 under reference SE919/12/00028) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.
Reasons for Decision
A.	Introduction 
1.	This case concerns the special education needs of William, who was born in December 1995. He had a statement from June 2005. He was offered a place at a college, which I shall call ‘NHC’, from September 2012. The local authority decided that it would cease to maintain his statement, as his needs could be met by NHC. His parents appealed against that decision to the First-tier Tribunal, which allowed the appeal. I gave the local authority permission to appeal to the Upper Tribunal and the parties’ submissions are now complete. 
B.	The legislation and the Code of Practice
2.	Paragraph 11 of Schedule 27 to the Education Act 19096 provides:
(1)	A local authority may cease to maintain a statement only if it is no longer necessary to maintain it.
(2)	Where the local authority determine to cease to maintain a statement-
…
(b)	the parent of the child may appeal to the Tribunal against the determination.
…
(3)	On an appeal under this paragraph the Tribunal may-
(a)	dismiss the appeal, or
(b)	order the local authority to continue to maintain the statement in its existing form or with such amendments … 
as the Tribunal may determine.
3.	The Special Educational Needs Code of Practice for England was issued under section 313 of the 1996 Act. Local authorities must have regard to its provisions. The relevant provisions are:
Ceasing to maintain the statement
8:117 There should be no assumption that, once the LEA has made a statement, they should maintain that statement until they are no longer responsible for the young person. Statements should be maintained only when necessary. But a decision to cease to maintain a statement should be made only after careful consideration by the LEA of all the circumstances and after close consultation with parents.
8:118 The LEA may cease to maintain a statement for a child only if they believe that it is no longer necessary to maintain it. The LEA should consider the results of the recent annual reviews, whether the objectives of the statement have been achieved, and whether the child’s needs could be met in future within the resources of mainstream schools within the area without the need for continuing LEA oversight. The LEA should always, therefore, consider whether, notwithstanding the achievement of some, or even all, of the objectives in the statement, the child’s progress will be halted or reversed if the special educational provision specified in the statement or modified provision which justified the maintenance of a statement were not made.
8:119 The LEA may consider whether the following apply when considering if it is necessary to maintain a statement: 
a	have the objectives of the statement have been met
b	can the child’s needs be met in future within the resources of a mainstream school
c	do the child’s special educational needs no longer significantly impede access to the National curriculum
d	does the child no longer require daily adult supervision or substantial adaptation of teaching materials to access the curriculum fully
e	can the child cope with everyday social interaction at school
f	has the child no significant self-help difficulties that require more provision than is normally available within the school.
C.	The tribunal’s reasoning
4.	After dealing with preliminary matters and setting out paragraphs from the Code of Practice, the tribunal set out the background and turned to the Consideration of Evidence and Submissions with our Conclusions. This section contains its conclusions. Specifically:
•	On paragraph 8.117, the tribunal found that the local authority ‘did not make its decision … after careful consideration of all the circumstances.’ It found that ‘there was no consultation whatsoever’ between the local authority and William’s parents. The authority had not heeded the parents’ wishes and had passed responsibility to a body, which based its decision on the wrong test.
•	On paragraph 8.118, the tribunal found that the local authority had not taken into account William’s most recent annual review, which recorded only slight improvement and stated that the authority should continue to maintain the statement.
•	On paragraph 8.119, the tribunal considered evidence relevant to each criterion and found that the local authority has not ‘fully and properly considered the criteria’ in this paragraph. 
The tribunal then dealt with subsequent procedural paragraphs in the Code before deciding:
Given all of the above, we are not satisfied that the LA followed the correct procedure when it made its decision to cease to maintain William’s statement and accordingly, we do not consider its decision can stand.
5.	This summary shows that the tribunal saw its task as reviewing whether or not the local authority had made its decision to cease to maintain William’s statement in the proper way. 
D.	The application to the First-tier Tribunal for permission to appeal
6.	The local authority applied for permission to appeal on three grounds. They all effectively make the same point: the tribunal failed to have any regard to the provision that could be made for William at NHC.
7.	The first ground was that the tribunal had failed to consider whether NHC could meet William’s needs and, consequently, had not considered the statutory question whether it was necessary to maintain the statement. 
8.	The second ground was that the tribunal had failed to explain why it was necessary to maintain the statement despite the provision available at NHC. 
9.	The third ground was that it was irrational to find that the local authority had not complied with the Code of Practice. This led the tribunal to fail to take any account of the provision that would be available to William at NHC.
E.	The refusal of permission by the First-tier Tribunal
10.	The First-tier Tribunal refused the local authority permission to appeal. The judge, who had not presided at the hearing, commented on the authority’s first ground of appeal:
The LA were found to have essentially ignored the Code of Practice in deciding to cease to maintain William’s statement in no small part due to the concessions to that effect by the LA during the hearing. In doing so the Tribunal allowed the parents appeal. The LA say that the Tribunal should have considered whether his special educational needs can be met at their identified college. This is an entirely false proposition because in order for the Tribunal to consider that, the parents have to have been allowed to engage in the process set out in the Code of Practice which the LA abjectly failed to do as that may have led the LA to form a different view.
F.	The application to the Upper Tribunal for permission to appeal 
11.	The local authority repeated its grounds of appeal to the Upper Tribunal, adding a comment on the passage I have just quoted. After repeating that the local authority had complied with the Code, it added that it does not have to be applied rigidly and that it is only necessary to have regard to it. It ended by repeating that the tribunal had failed to address the correct statutory question of necessity.
12.	I gave permission to appeal saying:
I would put the underlying issue like this. The tribunal set aside the local authority’s decision for failing to follow the correct procedures. What it should have done was to decide afresh whether the authority should maintain a statement in respect of William.
G.	The parents’ response
13.	The parents’ representative made two submissions:
•	The tribunal did not take the wrong approach.
•	If it did, it nonetheless came to the right decision.
14.	The representative argued that the tribunal did not take the wrong approach, saying that it could decide the case without referring to the provision available at NHC and that it can properly be assumed that it did have regard to that provision. As to the specific criticisms in the local authority’s third ground of appeal, the tribunal was entitled to find as it did.
15.	The representative argued that the tribunal came to the right decision in any event, inviting the Upper Tribunal to re-make the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. He argued that a decision is needed urgently and there is no reason to justify remitting the case to the First-tier Tribunal. 
H.	The local authority’s reply
16.	These effectively reassert the grounds of appeal.
I.	Analysis 
17.	The First-tier Tribunal is a statutory tribunal, constituted under section 3(1) of the Tribunals, Courts and Enforcement Act 2007. 
18.	As such it has only the jurisdiction conferred on it by statute.
19.	In this case, its jurisdiction was conferred by paragraph 11 of Schedule 27 to the Education Act 1996. 
20.	That jurisdiction was to decide whether the local authority’s decision to cease to maintain a statement for William was correct in fact and law.
21.	The issue that arose under paragraph 11(1) was whether it was no longer necessary to maintain the statement. 
22.	The tribunal’s powers were set by paragraph 11(3). That provision gives the tribunal only two options. One is to dismiss the appeal, which has the effect that a statement is no longer maintained. The only other power is to order the statement to continue as it stands or with amendments. 
23.	The form of disposal is dictated by the tribunal’s decision on the issue it has to decide. That issue is whether it was any longer necessary to maintain a statement. The local authority was not an independent decision-maker on that issue. Accordingly, the tribunal’s task is to consider that issue afresh on the fact and on the law, on the evidence and on the submissions before it. Its task is not to undertake a review of the decision-making process. 
24.	There may be cases in which the local authority’s decision-making process is so flawed that it can properly be said that no decision has been made. To adopt the language of the Tribunal of Commissioners in R(IB) 2/04 at [72]: ‘there may be some decisions … which have so little coherence or connection to legal powers that they do not amount to decisions’. Those cases are rare, indeed exceptional. The distinction that has to be drawn is between (a) a decision that was taken without following the correct procedure or without following it correctly and (b) a procedure that was so flawed as to prevent any decision having been made. In this case, the tribunal’s reasoning fell within (a) rather than (b). It could not properly have been otherwise. In those circumstances, the tribunal was obliged to decide the statutory issue before it. 
25.	[It is not necessary for me to decide how a tribunal should proceed if it decides that no decision has been given, what form of order it should make, or what the effect of that order might be.] 
26.	It is clear beyond doubt that the tribunal in this case did not deal with the statutory issue before it. Its reasoning and its conclusion, which I have quoted at the end of paragraph 4, show that it concerned itself exclusively with the process by the which the local authority made its decision. I accept that in the following, final paragraph the tribunal did set out the effect of its decision, but that is all. 
27.	Leaving aside the issue of whether or not the local authority had regard to the Code, which is not quite how the tribunal expressed itself, I accept the local authority’s first and second grounds of appeal that the tribunal failed to take account of the provision that NHC could make for William. As I said in my grant of permission to appeal, those are merely manifestations of the tribunal’s fundamental failure to address the statutory issue it had to decide. 
J.	Disposal 
28.	I set the tribunal’s decision aside and remit the case for rehearing. 
29.	I decided not to hold an oral hearing and not to re-make the decision. I did not consider that an oral hearing was necessary, as the issues had been sufficiently explored in submissions from competent representatives for both parties. I did not consider it appropriate to re-make my decision, because that would benefit from the knowledge and experience of the panel members of the First-tier Tribunal, which is not available to the Upper Tribunal. 

Signed on original
on 7 February 2013	Edward Jacobs
Upper Tribunal Judge