NK v London Borough of Barnet (SEN): [2017] UKUT 265 (AAC) [2017] UKUT 265 (AAC)
UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
[2017] UKUT 265 (AAC)Case No HS/1320/2016
Between
NKAppellantLondon Borough of BarnetRespondent
Before
Upper Tribunal Judge RowlDate 22 June 2017Category: Tribunal procedure and practiceSubcategory: Tribunal procedure and practice other
[1]This is an Application by the Appellants for an order for costs incurred in their appeal to the Upper Tribunal and in the prior proceedings before the First-tier Tribunal. I have received written representations on the Application from Mr David Lawson of counsel, instructed by John Ford Solicitors, on behalf of the Appellants and from Ms Laura Palmby, solicitor of EMW LLP (who has been instructed only on this Application), on behalf of the Respondent.[2]The proceedings before the First-tier Tribunal were an appeal brought in the Health, Education and Social Care Chamber by the Appellants under section 326 of the Education Act 1996 against the contents of an amended Statement of special educational needs in respect of their son, Christopher, who was then aged 8 and is now aged 10. It is unnecessary to set out the whole of the background to the case but it is necessary to set out some of it in order to explain the context in which this Application is made.[3]Christopher has a diagnosis of Autistic Spectrum Condition and other complicating conditions that, as the First-tier Tribunal found, “impact on all areas of Christopher’s development”. His parents had long been concerned about the lack of educational progress their son appeared to be making and they wished him to attend X School which had experience of teaching children with autism and had a specialist unit for such children. When an amended Statement was sent to them on 17 July 2015, that school was not named on the ground that Christopher’s admission to the school would be incompatible with the efficient education of the pupils already there. The parents promptly lodged their appeal on 22 July 2015, seeking both the naming of that school in Part 4 of the Statement and amendments to Parts 2 and 3 to give more detail as to Christopher’s special educational needs and to the provision to be made in respect of those needs. However, a place became available at the school when another child left and so Christopher was able to attend the school from October 2015, albeit not in the specialist unit. The Appellants remained dissatisfied as to the level of support being provided to Christopher and arranged for further reports to be made by Ms Heather Forknall, an educational psychologist, and Ms Miri Horowitz-Cohen, an occupational therapist, who had both already made reports for the Appellants earlier in the year, and by a behavioural optometrist.[4]By the time of the hearing of their appeal, the Appellants had decided not to press their case for Christopher to be admitted to the specialist unit but they still sought amendments to Parts 2 and 3 of the Statement. At the hearing, the NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 2 Appellants were represented by Mr Lawson. He called Ms Forknall and Ms Horowitz-Cohen to give oral evidence at the hearing, and also Christopher’s mother. The local authority was represented by a non-lawyer official, who called the head teacher and deputy head teacher (who was also, I think, the SENCO although the First-tier Tribunal appears to have understood the SENCO to have been a different person) of X School to give evidence. There were, in addition, several written reports and witness statements, the hearing bundle amounting to over 900 pages when late evidence and the “Final Working Document” were added.[5]The First-tier Tribunal made a number of amendments to both Part 2 and Part 3 of the Statement, but did not accept all of the arguments of either side. It is unnecessary for me to say anything about the amendments to Part 2. The Appellant’s appeal to the Upper Tribunal was based on the amendments to Part 3, the submission being that the First-tier Tribunal had erred in failing to include specific and quantified provision in respect of literacy and numeracy skills and in respect of direct occupational therapy.[6]The background to the decision in respect of literacy and numeracy skills is to be found in the First-tier Tribunal’s summary of the evidence of the deputy head teacher and the head teacher – “16. [The deputy head teacher] said Christopher had been at [X School] since October 2015 and the school were happy with his progress. He was beginning to work more independently once he had been assisted to start a task. [She] said Christopher was generally working at a Year 2 level. The school were using a number of strategies to support Christopher, such as a visual timetable, learning breaks and keeping his levels of anxiety low. Christopher was coping very well in his interactions with other children although there were arguments from time to time.[17]The Tribunal were also told by [the deputy head teacher] that Christopher had received support from a Speech and Language Therapist and he was currently part way through a six week block of therapy which involved weekly sessions of 30 minutes on an individual basis. There was also a speech and language therapy programme in operation.[18]Christopher had also been seen by an Occupational Therapist and the school had been given strategies to support Christopher in the classroom. Christopher’s teaching assistant gave him different exercises during the course of the day. Christopher also took part in weekly Lego therapy at lunch times with the sessions taken by an ASD teacher.[19]In terms of literacy and numeracy, Christopher was participating in a literacy programme “Project X” three times a week with a reaching assistant in a small group. He was also involved in an individual phonics programme “Toe by Toe” on a daily basis for 10 minutes taken by another TA. [The deputy head teacher] said that after the current spring half term Christopher would be following a 12 week numeracy programme “First Class Number” in a small group four times a week.[20]In relation to questions from Mr. Lawson, [the deputy head teacher] said Project X was not a dyslexic specific programme but was for children who had not made satisfactory progress and this might include some children with a diagnosis of dyslexia. The “Toe By Toe” programme was appropriate for dyslexic pupils and NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 3 [she] said the school’s SENCO had done a module on dyslexia. The school were prepared to introduce other programmes if necessary.”[21][The head teacher] said that the school had been asked to take Christopher at very short notice. They had allocated a teaching assistant for him who had experience in delivering individual programmes. Christopher had 3 hours of literacy/numeracy/spelling in the mornings and the school had also fitted in extra lessons for him. [She] said the school had acted very quickly in assessing Christopher and establishing what he could do independently.” In its reasons for not making specific provision for literacy and numeracy and direct occupational therapy, the First-tier Tribunal said – “55. There were a number of proposals made by [the Appellants] to support Christopher with the development of his literacy, numeracy and phonological skills. The existing provision in Christopher’s Statement is already quite detailed, but [the Appellants] were seeking more individual interventions, following the advice of Ms Forknall. Although Cristopher has only been at [X School] a relatively short period of time the evidence from [the deputy head teacher] is that he is making progress with the intervention[s] which are already in place. We therefore consider that while Christopher is making progress the existing interventions should continue, although clearly the situation will need to be kept under review.”[7]Mrs Horowitz-Cohen had specifically recommended a weekly 45-minute occupational therapy session, with a review being carried out after three terms (doc 355), but the First-tier Tribunal said – “63. It is not disputed that Christopher will require some intervention from an occupational therapist given his motor and sensory processing difficulties. The parties have agreed suitable programmes should be in place designed and monitored by an occupational therapist. The occupational therapist will also provide suitable training for staff. In addition to this [the Appellants] seek to add weekly sessions of direct therapy each of 45 minutes in duration, as recommended by Ms Horowitz-Cohen. We again express concern about Christopher being withdrawn from the classroom and the need for him to settle in his new school. The agreed programmes will be delivered by appropriately trained staff as part of Christopher’s daily routine with ongoing oversight from an occupational therapist, this given the present level of difficulty observed by school staff, should in our view be sufficient to meet Christopher’s needs. The occupational [therapist] will be reviewing Christopher’s needs and changes can be made if necessary.[8]In the final paragraph of the statement of reasons, the First-tier Tribunal elaborated on its general approach – “64. Christopher has attended a number of primary schools and it is important that he is now given an opportunity to settle and make progress at [X School]. In order for that to happen there needs to be a good working relationship between school and Christopher’s parents acting in Christopher’s best interests. Christopher does have significant special educational needs for which appropriate provision needs to be in place and it has been agreed he should attend a mainstream school. In considering the proposed amendments to Christopher’s Statement we have sought to maintain a balance between all the interventions which [the Appellants] want included and the ability of a mainstream school, such as [X School] to deliver them NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 4 without undermining the placement. Whilst [the Appellants] have understandably based their proposals on the advice from those professionals who have assessed Christopher, that advice is often only aimed at one particular aspect of Christopher’s difficulties. We have considered the evidence from all the assessments in the light of the information provided from Christopher’s school and reached conclusions as to the provision which can be delivered to meet Christopher’s needs.”[9]In Part 3 of the Statement as approved by the First-tier Tribunal, it was stated that – “Christopher requires intensive intervention programmes in literacy, numeracy and phonics to develop his phonological skills, number skills and literacy skills”, but no specific intervention programmes were identified and, consistently with paragraph 63 of the statement of reasons, nothing was said about direct occupational therapy although there were included requirements to provide therapy programmes and resources recommended by an occupational therapist.[10]As I have indicated, the Appellants’ grounds of appeal to the Upper Tribunal criticised the lack of specific provision for literacy, numeracy and direct occupational therapy. In relation to literacy and numeracy, they referred to L v Clarke and Somerset County Council [1998] ELR 129 and JD v South Tyneside Council [2016] UKUT 9 (AAC) and also criticised the reasoning in paragraph 55 of the statement of reasons on the ground that there was no detailed “existing provision” and there had been no proper assessment of Christopher’s progress showing a measurable improvement in his skills as a result of what had been only a short period of low-level intervention. In relation to direct occupational therapy, it was submitted that the First-tier Tribunal had not explained why the limited amount of withdrawal from classes was not justified, when there had previously been a larger amount of withdrawal for a programme of speech therapy that had ended and it was also argued that, in the absence of any contrary evidence from an occupational therapist or any particular expertise on the part of the members of the panel, the First-tier Tribunal was not entitled to reject Ms Horowitz-Cohen’s recommendation. I gave permission to appeal on 24 May 2016.[11]Importantly for the purposes of this Application, the original grounds of appeal indicated that the Appellants had been informed since the hearing that Project X had not been in place at the time of the hearing before the First-tier Tribunal, having been introduced nearly four weeks later (although it would have been introduced a week earlier than it was but for Christopher’s absence and the week before that had been half term), and that the Toe to Toe programme had been introduced only one or two weeks before the hearing and that steps were being taken to confirm whether verify the Appellants’ understanding. In the event, it was confirmed that Project X had indeed not been in place at the time of the hearing and proposed amended grounds of appeal were submitted on 12 June 2016 to add to the original grounds the point that the lack of specificity had led the local authority to consider that it could put in place 12-week interventions and then decide what further interventions to make, to add an additional ground to the effect that the First-tier Tribunal’s decision could not stand because it was vitiated by the inaccurate information NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 5 provided to it, to point out that the Appellant’s faith in the school had been undermined and to include an application for costs.[12]The Respondent did not object to the amendments but resisted the appeal, arguing that the Appellants had not made specific proposals for literacy and numeracy provision and submitting that the amendments made were adequate and adequately reasoned. In relation to direct occupational therapy, it was submitted that the First-tier Tribunal was not bound to accept Ms Horowitz-Cohen’s recommendation and that it had given adequate reasons for not doing so. In relation to the information about Project X, the Respondent submitted that, even if the information provided had been incorrect or mistaken, it did not vitiate the decision because Project X was but one of several interventions, it had been in put in place shortly after the hearing and had remained in place since then and it would not have made any difference to the First-tier Tribunal’s decision had it been told that it was about to start rather than that it had already started.[13]I directed an oral hearing of the appeal but, on 8 November 2016, two days before the date fixed for the hearing, the parties reached agreement and submitted a draft consent order that I endorsed. It provided for the appeal to be allowed, the First-tier Tribunal’s decision to be set aside, for the case to be remitted to the Firsttier Tribunal for rehearing and for the case-management of the outstanding costs application in the Upper Tribunal including, if necessary, the obtaining of the Firsttier Tribunal judge’s note of evidence. The Respondent gave me no reason for its concession (although it has since said that it was made on the pragmatic ground that Christopher had been removed from X School) and I gave no reason for accepting it, but the effect of the consent order is that the decision of 4 February 2016 must now be treated as having been wrong in law. The First-tier Tribunal reheard the case on 9 February 2017 and, the parties already having reached agreement as to the contents of Parts 2 and 3 of the Statement and the First-tier Tribunal having indicated its provisional conclusion that another school should be named in Part 4, the parties reached a final agreement and a consent order was made on 13 March 2017.[14]Meanwhile, on 20 June 2016, the Appellants had made, out of an abundance of caution, an application to the First-tier Tribunal for costs. On 24 March 2017, their solicitors wrote to the First-tier Tribunal saying that it might still be necessary for it to consider the question of costs, although the issue was before the Upper Tribunal. The First-tier Tribunal replied, by email sent by the personal assistant to the relevant Deputy Chamber President, to the effect that the question of costs could be determined only by the Upper Tribunal[15]Before I turn to the arguments on this Application, it is convenient first to set out the relevant legislation governing the award of costs. Section 29(1) to (3) of the Tribunals, Courts and Enforcement Act 2007 provides – “29.—(1) The costs of and incidental to—(a) all proceedings in the First-tier Tribunal, and(b) all proceedings in the Upper Tribunal, shall be in the discretion of the Tribunal in which the proceedings take place. NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 6 (2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid. (3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.” Rule 10(1)(b) and (5) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699) provides – “10.—(1) Subject to paragraph (2), the Tribunal may make an order in respect of costs only— (a) …; or (b) if the Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings. … (5) An application for an order under paragraph (1) may be made at any time during the proceedings but may not be made later than 14 days after the date on which the Tribunal sends the decision notice recording the decision which finally disposes of all issues in the proceedings. …” Rule 10(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) provides – “10.—(1) The Upper Tribunal may not make an order in respect of costs (or, in Scotland, expenses) in proceedings transferred or referred by, or on appeal from,] another tribunal except— (a) …; or (b) to the extent and in the circumstances that the other tribunal had the power to make an order in respect of costs (or, in Scotland, expenses).”[16]The Appellants seek the whole of the costs incurred in both the original proceedings before the First-tier Tribunal (i.e., before the appeal to the Upper Tribunal – amounting to some £20,300) and in the Upper Tribunal (amounting to some £5,500).[17]Costs in the First-tier Tribunal are claimed on the ground that the First-tier Tribunal’s decision was based on evidence that the Respondent knew, or ought to have known, was inaccurate. Reference is made to Chapple v Suffolk County Council [2011] EWCA Civ 870; [2012] ELR 105 and it is submitted that providing inaccurate information and not correcting it amounts to acting “unreasonably” for the purposes of rule 10(1)(b) of the First-tier Tribunal Rules. It is submitted that section 29(1) of the 2007 Act does not have the effect that the Upper Tribunal has no power to award costs in respect of proceedings before the First-tier Tribunal because section 12(2)(ii) and (4) empowers the Upper Tribunal, on an appeal from the Firsttier Tribunal, to re-make a decision that has been set aside and, in doing so, to make any decision that the First-tier Tribunal could. Section 12 provides – “12.—(1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law. (2) The Upper Tribunal—(a) may (but need not) set aside the decision of the First-tier Tribunal, and NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 7(b) if it does, must either— (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision. (3) …. (4) In acting under subsection (2)(b)(ii), the Upper Tribunal— (a) may make any decision which the First-tier Tribunal could make if the Firsttier Tribunal were re-making the decision, and (b) may make such findings of fact as it considers appropriate.”[18]Costs in the Upper Tribunal are claimed on the basis that the Respondent acted “unreasonably” in opposing the appeal in the Upper Tribunal until the last minute, insofar as the appeal was based on inaccurate information having been provided to the First-tier Tribunal.[19]The Respondent resists the application. First, it submits that section 29 of the 2007 Act has the effect that the Upper Tribunal has no power to award costs in respect of proceedings in the First-tier Tribunal and suggests that the First-tier Tribunal was wrong to say that it did not have jurisdiction, although it is also suggested that it would be in the spirit of the overriding objective for the matters to be dealt with together if permissible. Secondly, it submits that the application in respect of the costs in the First-tier Tribunal was out of time. Thirdly, it is submitted that the local authority’s conduct was not “unreasonable”, both because it denies, or at least does not admit, that inaccurate information was provided and because it submits that it was open to the Appellants to challenge the information if it was inaccurate. Fourthly it is submitted that there is no ground for supposing that any other decision would have been reached if the First-tier Tribunal had known the true position. Fifthly, it is submitted that the costs claimed are excessive, disproportionate and not properly particularised.[20]I accept the Appellants’ submission that the Upper Tribunal has the power to make an order in respect of the costs incurred in the First-tier Tribunal by virtue of section 12 of the 2007 Act, rather than by virtue of section 29, notwithstanding that I remitted the case to the First-tier Tribunal. I take this approach largely for reasons advanced by Mr Lawson. I accept that, on an appeal to the Upper Tribunal under section 11 (which provides the general right of appeal to the Upper Tribunal from decisions of the First-tier Tribunal), the Upper Tribunal has the power to re-make under section 12 any decision as to costs made by the First-tier Tribunal in respect of costs incurred in that tribunal, including a decision to make no order as to costs. It seems to me that the legislation must be read to the effect that the Upper Tribunal has the same power even if the First-tier Tribunal does not expressly consider the question of costs, which is, of course, the usual position because the limits to the power to make an order for costs have the effect that few applications for costs are made. Moreover, although section 12 no doubt anticipates that usually the Upper Tribunal will either remit the whole case or re-make the whole decision, it does not preclude the Upper Tribunal from re-making the decision on one or more issues and remitting the case for other issues to be determined by the First-tier Tribunal when that is convenient (e.g., in the sort of case where an issue could be dealt with by the First-tier Tribunal as a preliminary issue under rule 5(3)(e) of the First-tier Tribunal Rules). It is therefore open to the Upper Tribunal to re-make the First-tier Tribunal’s NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 8 decision in relation to costs even though it remits the substantive case to the Firsttier Tribunal. In this case, that was the practical effect of the consent order that I endorsed and so the First-tier Tribunal was right to take the view that it should not deal with the issue of costs, at least unless and until the Upper Tribunal decided otherwise. As the Respondent accepts, this makes pragmatic sense in this case.[21]On this analysis, it was sufficient that the question of costs in respect of the proceedings before the First-tier Tribunal was raised before the Upper Tribunal before the substantive decision was made but, in any event, I would not hold against the Appellants the delay in making an application to the First-tier Tribunal, which was promptly made once the grounds for the application became apparent to the Appellants. The time for making an application prescribed by rule 10(5) of the Firsttier Tribunal Rules may be extended under rule 5(3)(a) and it would have been appropriate to exercise that power in this case had it been necessary to do so.[22]I also accept the Appellants’ argument that inaccurate information was given to the First-tier Tribunal by the deputy head teacher. She has made a written witness statement in which she says that she told the First-tier Tribunal that “we offer Project X with literacy needs and that Christopher was timetabled to begin ‘Project X’ shortly”. Understandably, neither the local authority’s representative nor the head teacher can remember exactly what was said, although it is observed that the Appellants had a copy of the current timetable which did not show Project X. The representative does, however, point out that her note shows that evidence about Project X was given immediately after the evidence of First Class Number numeracy intervention had been given and, since it was made clear that the numeracy intervention was due to start later, she concludes – although she does not put it quite like this – that it was probably also made clear that Project X had yet to start. The judge’s note confirms the order in which the evidence was given but, while it confirms that the First-tier Tribunal was informed that the numeracy intervention was due to start after half term, there is (as in the Respondent’s representative’s note) no such qualification in respect of Project X. It is apparent from the statement of reasons that the First-tier Tribunal gained the impression that Project X had already started and I am not persuaded that I should go behind what is recorded in that statement. While I accept that it is possible that the deputy head teacher did say that Project X was yet to start and that there was a misunderstanding by both the First-tier Tribunal and the Appellants, I therefore find, on the balance of probabilities, that the deputy head teacher’s evidence was to the effect that Project X was already in place. On the other hand, it seems likely that this was merely been the result of an imprecision in her choice of words rather than any attempt to exaggerate the provision being made by the school, particularly having regard to the fact that she had made it clear that the numeracy intervention had yet to start.[23]I also agree with the Appellants that it is irrelevant that they could have challenged at the hearing before the First-tier Tribunal the evidence that Project X was already in place. It appears that Christopher’s mother had not heard of Project X until the hearing but it did not necessarily follow from that that it had not been put in place before then and so she had no reason to challenge the evidence until it was subsequently mentioned to her that it had only started when Christopher had returned to school a week late after the half term. But, in any event, as Stanley NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 9 Burnton J said in JF v London Borough of Croydon [2006] EWHC 2368 (Admin), there is a duty on a public authority to provide full and accurate evidence in these sorts of proceedings, irrespective of the possibility of other parties being able to unearth the information themselves.[24]It seems to me to be unprofitable to consider in this case whether the conveying of inaccurate information to the First-tier Tribunal, where the party knows, or should know, that it is wrong, necessarily amounts in all cases to acting “unreasonably” for the purposes of rule 10(1)(b) of the First-tier Tribunal Rules or whether in some cases acting unreasonably opens the door to an award of costs that goes beyond the recovery of additional costs incurred as a result of the unreasonable conduct. In the present case, I am content to accept that the Respondent did act unreasonably in providing inaccurate information but I am not persuaded that that was due to anything other than inadvertence and I therefore consider that, whatever the theoretical scope of the power to award costs where there has been unreasonable conduct, it would be inappropriate to award costs in this case other than any additional costs incurred due to the unreasonable conduct. Since the provision of inaccurate information occurred only at the hearing before the First-tier Tribunal, when the costs of the proceedings before the First-tier Tribunal had already been incurred, additional costs were only incurred if the consequence of the unreasonable conduct was that there had to be an appeal to the Upper Tribunal so as to secure the setting aside of the decision of the First-tier Tribunal and remittal of the case to the First-tier Tribunal, resulting in costs in the Upper Tribunal being incurred and the costs in respect of the first hearing before the First-tier Tribunal effectively being thrown away. It is therefore necessary to consider whether the provision of incorrect information to the First-tier Tribunal by itself justified an appeal to the Upper Tribunal.[25]The question whether the provision of incorrect information renders a decision of the First-tier Tribunal wrong in law, either on the ground that the proceedings were unfair or on the ground of an error of fact that amounts to an error of law (see E v Secretary of State for the Home Department [2004] EWCA Civ 49; [2004] QB 1044), turns on whether the First-tier Tribunal might have made a different decision had it been given the correct information (see Chapple and also A v Kirklees Metropolitan District Council [2001] EWCA Civ 582; [2001] ELR 657, which was applied in JF v London Borough of Croydon [2006] EWHC 2368 (Admin)). I emphasise that the question is whether the provision of the correct information might have made a difference, rather than whether it would have done so. Thus, it is for the Respondent to persuade me that having the correct information would not have made a difference to the outcome, rather than for the Appellants to persuade me that it would have made a difference. I accept Mr Lawson’s submission on this point and reject Ms Palmby’s approach to the extent that she suggests the contrary.[26]Nonetheless, I am firmly of the view that knowing that Project X was about to start rather than that it had already started would not have made any difference to the First-tier Tribunal’s decision. I accept Ms Palmby’s submission on this point. It is quite clear, reading the First-tier Tribunal’s decision as a whole and particularly paragraphs 55 and 64 of the statement of reasons against the background of paragraphs 16 to 21, that the First-tier Tribunal was conscious that Christopher had NK v London Borough of Barnet (SEN) (Costs) [2017] UKUT 265 (AAC) HS/1320/2016 10 not been at X School for very long, that it was impressed by the apparent ability of the school to assess Christopher’s needs and to introduce programmes to address those needs and that it considered that the school should be allowed to review the provision as and when necessary. It may have been wrong to take that approach, because more specificity was required in the Statement or because it was inadequately reasoned in the light of the Appellants’ evidence and the lack of objective evidence in the form of formal assessments that Christopher was making measurable progress, but that is not the issue on this Application because, in my view, any errors in the approach were not encouraged by the inaccurate information about Project X. Given its approach to the case, I am satisfied that it is inconceivable that it would have made any difference to its decision if the First-tier Tribunal had been told that, like the First Class Number numeracy programme, Project X was due to start after half term (i.e., after another couple of weeks of school). What would have been important to it was that the need for the provision had been identified and that the provision was to be made.[27]It follows that it is not appropriate to make any order for costs in respect of the proceedings before the First-tier Tribunal. It is also inappropriate to make any order for costs in the Upper Tribunal because the Respondent would successfully have resisted the ground of appeal that relied on the provision of inaccurate information. It is not, and could not be, suggested that the Respondent acted unreasonably in resisting the other grounds of appeal in the Upper Tribunal.[28]I therefore need not consider arguments as to the amount of costs that it might otherwise have been appropriate to award.[29]It is unfortunate that the Appellants have incurred such substantial expense in obtaining a Statement of special educational needs with which they are content, but I am not persuaded that the Respondent must pay any of those costs. No doubt it has also incurred costs, which is also regrettable. Mark Rowland 22 June 2017