One question parents often ask us is: “If I don’t win my tribunal appeal, will I have to pay the local authority’s costs”?
To answer the question, we first have to look at Rule 10, The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 which govern tribunal procedure. This makes clear that a Tribunal can make an order for costs:
if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings
Anyone familiar with other jurisdictions (or courts) will appreciate that this is not the approach universally adopted. For example, the Family Court the rule is an award of costs will generally flow with the result of litigation; the successful party being entitled to an order for costs against the unsuccessful party. In other words, the loser pays.
Having established that cost orders can be made when either the parent or local authority acts unreasonably, what should the approach of the tribunal be when making cost orders?
The recent case of MG v Cambridgeshire County Council (SEN)  UKUT 172 (AAC) (which can be found here) provides an answer. Whilst he also addressed some more untypical cost issues, UTJ Rowley made clear:
- It is crucially important for me to begin by emphasising that nothing in this decision should be taken as encouraging applications for costs. The general rule in this jurisdiction is that there should be no order as to costs. There are good and obvious reasons for the rule. Tribunal proceedings should be as brief, straightforward and informal as possible. And it is crucial that parties should not be deterred from bringing or defending appeals through fear of an application for costs.
- Furthermore, tribunals should apply considerable restraint when considering an application under rule 10, and should make an order only in the most obvious cases. In other words, an order for costs will be very much the exception rather than the rule…..
So, the answer we give to parents is that they can have a cost order made against them, but this is very much the exception rather than the rule and to minimise this small risk they need to ensure that they conduct themselves reasonably throughout the proceedings. This doesn’t mean they cannot make a robust case, rather they should avoid intemperate language and unreasonable behaviour and make realistic, evidence based submissions at all times. That said, it does mean that if the local authority don’t comply with these standards, it would be reasonable for them to at least consider making an application for cost to be made against the local authority.
AKO: 20th December 2017