MG v Cambridgeshire County Council (SEN) - [2017] UKUT 0172 (AAC)

An interesting case providing clarity on when an order of costs can be made.

It is hoped that the decision will deter local authorities (LA) from prolonging appeals which should rightly be concluded swiftly because they have no prospect of a reasonable defence. This would avoid unnecessary delays in the child/young person accessing the provision they require and avoid unnecessary stress and costs.

Costs in the First-tier Tribunal (FTT) are rare. In this case the appellants applied for costs because they believed that the LA had acted unreasonably in defending the appeal.

The case

The Upper Tribunal (UT) disagreed with the method used by the First-Tier Tribunal (FTT) in calculating costs and set aside the FTT’s decision on costs. The UT judge considered the application costs completely afresh and agreed that the LA had acted unreasonably in defending the appeal that the appellants brought to the FTT about the content of their child’s Education, Health and Care Plan (EHCP). The UT judge said that the LA’s conduct justified making an order for costs because their conduct led to significant and unnecessary costs in continuing to deal with the FTT appeal case. The fact that the appellant was in receipt of public funding (legal aid) made no difference to their rights to costs. The appeal was allowed – the LA had acted unreasonably in defending proceedings and an order for costs was made.

The case is significant because the judge has 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 UT decision is an important case for legal aid lawyers who have cases before the FTT. It may also possibly have broader application in other areas of law which are dealt with by the FTT – such as the immigration and asylum and welfare benefits.