The Education Tribunal for Wales Regulations 2021

After the hearing E+W

Application or proposal for review of the Tribunal’s decision E+W

53.—(1) A party may apply to the Secretary of the Tribunal for the decision of the President or the tribunal panel to be reviewed on the grounds that—

(a) the decision was wrongly made as a result of a material error on the part of the Tribunal administration,

(b) a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear,

(c) there was an obvious and material error in the decision, or

(d) the interests of justice so require.

(2) An application that a decision of the President or the tribunal panel is reviewed must be made—

(a) in writing stating the grounds, and

(b) no later than 28 days after the date on which the decision was sent to the parties.

(3) The President may—

(a) on the application of a party or on the President’s own initiative, review and set aside or vary any decision made by the President on a ground referred to in paragraph (1), or

(b) refuse an application for a review of the President’s decision in accordance with paragraph (6).

(4) The President or the Chair of the tribunal panel which decided the case may—

(a) on the application of a party, or on the President’s or Chair’s own initiative, review and set aside or vary any decision made by the tribunal panel on a ground referred to in paragraph (1), or

(b) refuse an application for a review of the tribunal panel’s decision in accordance with paragraph (6).

(5) The Chair of the tribunal panel which decided the case may order a rehearing before the same or a differently constituted tribunal panel.

(6) An application for a review may be refused in whole or part by the President, or the Chair of the tribunal panel which decided the case, if in the President’s or the Chair’s opinion the whole or part of it has no reasonable chance of success.

(7) Unless an application for a review is refused in accordance with paragraph (6), the review must be determined after the parties have had an opportunity to be heard—

(a) by the President, where the decision was made by the President, or

(b) where the decision was made by a tribunal panel, by the President or the tribunal panel which made the decision or by another tribunal panel appointed by the President.

(8) If the President or the Chair of the tribunal panel which decided the case proposes, on the President’s or the Chair’s own initiative, that a decision is reviewed—

(a) the Secretary of the Tribunal must serve notice on the parties no later than 28 days after the date on which the decision was sent to the parties, and

(b) the parties must have an opportunity to be heard.

(9) In determining an application or a proposal for a review under paragraph (3), (4) or (7), the President or the Chair may give directions to be complied with before or at the hearing of the review.

(10) If a party fails to comply with a direction made under paragraph (9), the tribunal panel may take account of that fact when determining the review or deciding whether to make an order for costs.

(11) The President or the Chair may on the application of a party, give permission for that party to change a witness for the purpose of the review hearing.

(12) An application made under paragraph (11), must be received by the Secretary of the Tribunal and served by the applicant on the other party, no later than 14 days before the review hearing.

(13) The President or the Chair must give the parties the opportunity to be heard on any application made under paragraph (11).

(14) If a decision is set aside or varied following a review under this regulation the Secretary of the Tribunal must alter the entry in the Register and must notify the parties accordingly.

Commencement Information

I1 Reg. 53 in force at 1.9.2021, see reg. 1

Review of Tribunal’s decision not to extend the period in which proceedings must be commenced E+W

54.—(1) A decision by the President not to extend the time for submitting an appeal application under regulation 14 may be reviewed under regulation 53 on the application of a person as if the person was a party to the appeal.

(2) Where the President decides not to consider a claim which is out of time, under paragraph 4(3) of Schedule 17 to the 2010 Act, that decision may be reviewed under regulation 53 on the application of a person as if the person was a party to the claim.

(3) If an application for review is made under paragraph (1) or (2), the Secretary of the Tribunal must serve a copy of the application on the local authority, FEI governing body or the responsible body together with a notice inviting written representations within a specified period.

Commencement Information

I2 Reg. 54 in force at 1.9.2021, see reg. 1

Application for permission to appeal to the Upper Tribunal E+W

55.—(1) A party seeking permission to appeal on a point of law under section 81 of the 2018 Act or paragraph 6AA of Schedule 17 to the 2010 Act (appeals from the Education Tribunal for Wales to the Upper Tribunal) must make a written application to the Education Tribunal for permission to appeal.

(2) An application under paragraph (1) must be sent to the Secretary of the Tribunal no later than 28 days after the latest of the dates that the Secretary of the Tribunal sent to the party making the application—

(a) notification of the decision,

(b) notification that an application for the decision to be reviewed has been unsuccessful, or

(c) notification that the decision has been varied following a review.

(3) An application under paragraph (1) must—

(a) identify the decision to which it relates,

(b) identify the alleged error or errors of law in the decision, and

(c) state the result the party making the application is seeking.

(4) The President or Chair may give directions in relation to the determination of the application, and may make its decision on the application with or without a hearing.

(5) On receiving an application for permission to appeal to the Upper Tribunal the President or the Chair of the tribunal panel which decided the case must first consider, taking into account the overriding objective in regulation 4, whether to review the Tribunal’s decision in accordance with regulation 53 unless the President or the Chair have already reviewed the decision or decided not to review the decision.

(6) If the President or the Chair decides not to review the decision, or reviews the decision and decides to take no action in relation to the decision, or part of it, the President or the Chair must then consider whether to give permission to appeal in relation to the decision or that part of it.

(7) The Secretary of the Tribunal must send written notification of the President or Chair’s decision on the application to the parties as soon as practicable including details of any decision to give permission to appeal made under paragraph (6).

(8) If the President or Chair has refused the application the notification under paragraph (7) must also include—

(a) the reasons for such refusal, and

(b) notification of the right to make an application to the Upper Tribunal for permission to appeal and the time within which, and the method by which, such application must be made.

(9) The President or Chair may give permission to appeal on limited grounds, but must comply with paragraph (8) in relation to any grounds on which it has refused permission.

Commencement Information

I3 Reg. 55 in force at 1.9.2021, see reg. 1

Power to suspend Tribunal’s decision E+W

56.  The President or the Chair of the tribunal panel which decided the case may, on application or on the President’s or the Chair’s own initiative, make an order to suspend the effect of the tribunal panel’s decision pending the determination by the President or the Chair or the Upper Tribunal of an application for permission to appeal against, and any appeal or review of, that decision.

Commencement Information

I4 Reg. 56 in force at 1.9.2021, see reg. 1

Orders of the Upper Tribunal or the Court E+W

57.—(1) If any decision of the Tribunal is set aside, varied or altered in any way by order of the Upper Tribunal or the Court, the Secretary of the Tribunal must alter the entry in the Register to correspond to that order and must notify the parties accordingly.

(2) If the appeal or the claim is remitted to the Tribunal by order of the Upper Tribunal or the Court to be reheard, the Secretary of the Tribunal must notify the parties that, during a period of 15 working days (or a shorter period as agreed by the parties) each party may submit a supplementary case statement and further written evidence.

(3) If an order to strike out the appeal application or the claim application is quashed or set aside by the Upper Tribunal or the Court, the Secretary of the Tribunal must notify the parties—

(a) in the case where the case statement period had not expired before the order to strike out took effect—

(i) that a new case statement period is to commence, and

(ii) that, within the new case statement period, the parties may submit the documentation referred to in sub-paragraph (b) in respect of a case statement or evidence submitted before the strike out took effect, or

(b) where sub-paragraph (a) does not apply, that each party has 15 working days (or a shorter period as the parties may agree in writing) to submit a supplementary case statement and further written evidence.

(4) The Secretary of the Tribunal must send a copy of all case statements and written evidence received from a party during the periods referred to in paragraphs (2) and (3)(b) to the other party.

Commencement Information

I5 Reg. 57 in force at 1.9.2021, see reg. 1

Compliance with tribunal panel orders - appeals E+W

58.—(1) If the tribunal panel, following its decision in relation to an appeal, makes an order under section 71 of the 2018 Act requiring a local authority or FEI governing body to perform the actions referred to in paragraph (2) the local authority or FEI governing body must perform the actions within the time period specified in paragraph (2).

(2) In the case of an order—

(a) against a local authority to prepare an individual development plan, it must prepare and give a copy of the individual development plan to the child, child’s parent or young person within 7 weeks;

(b) against a FEI governing body to prepare an individual development plan, it must prepare and give a copy of the individual development plan to the young person within 35 term time days;

(c) against a local authority to revise an individual development plan, it must revise the individual development plan and give a copy of it to the child, child’s parent or young person within 7 weeks;

(d) against an FEI governing body to revise an individual development plan, it must revise the individual development plan and give a copy of it to the young person within 35 term time days;

(e) to continue to maintain an individual development plan (with or without revisions), with immediate effect;

(f) against a local authority to take over responsibility for maintaining an individual development plan, beginning with the date specified by the tribunal;

(g) against a local authority to review an individual development plan, it must undertake the review and notify the child, child’s parent or young person of the outcome of the review, in writing, within 7 weeks;

(h) against an FEI governing body to review an individual development plan, it must undertake the review and inform the young person of the outcome of the review, in writing within 35 term time days;

(i) to remit the case to the local authority responsible for the matter for it to reconsider whether, having regard to any observations made by the tribunal, it is necessary for a different decision to be made or a different action to be taken, the local authority must do so, and notify the child, child’s parent or young person of the outcome of that reconsideration within 7 weeks;

(j) to remit the FEI governing body responsible for the matter for it to reconsider whether, having regard to any observations made by the tribunal, it is necessary for a different decision to be made or a different action to be taken, the FEI governing body must do so, and notify the child, child’s parent or young person of the outcome of that reconsideration within 35 term days.

(3) If the tribunal panel, following its decision in relation to an appeal, makes an order under section 73 of the 2018 Act requiring a home authority to perform an action referred to in paragraph (4), the home authority must perform that action within the time period specified in paragraph (4).

(4) In the case of an order—

(a) to prepare an individual development plan, it must prepare and give a copy of the individual development plan to the child, child’s parent or young person within 7 weeks;

(b) to revise an individual development plan as specified in the order, it must revise the individual development plan and give a copy of it to the child, child’s parent or young person within 7 weeks;

(c) to remit the case to the home authority responsible for the matter for it to reconsider whether, having regard to any observations made by the tribunal, it is necessary for a different decision to be made or different action to be taken, it must do so and notify the child, child’s parent or young person of the outcome of that reconsideration within 7 weeks.

(5) In each case in paragraphs (2) and (4), unless otherwise specified, the period begins with the first working day after the order was made.

(6) Where an order is made in respect of an FEI governing body, a “term time day” means a day on which the further education institution is due to meet for the purpose of teaching students, provided that day is within a time period in which the further education institution delivers the majority of its full-time courses.

Commencement Information

I6 Reg. 58 in force at 1.9.2021, see reg. 1