The Upper Tribunal (Administrative Appeals Chamber) has handed down a significant judgment in the case of London Borough of Wandsworth v DMS [2026] UKUT 426 (AAC) which gives further guidance on the automatic barring provisions of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. The UT finds that the automatic barring provisions in the way that they often operate are misleading, and emphasises that a judicial determination must first be made as to whether the local authority had a reasonable explanation for the failure following case management directions.
The UT also finds that moving forward the discretionary powers under rule 8(4)(a) would likely be preferable than under rule 8(2) at §50-56, in particular:
52. In Denton the Court of Appeal (at [32]) held that particular consideration needed to be given to the matters specifically identified in Civil Procedure Rule 3.9(1)(a) and (b), i.e. the need for litigation to be conducted efficiently and the need to enforce compliance with rules, practice directions and orders. Those two factors are important in the Tribunal context too. However, as I held in MT v Governing Body of A School [2026] UKUT 42 (AAC) (MT) at [31]-[32], in agreement with Martyn Rodger KC, Deputy Chamber President of the Lands Chamber of the Upper Tribunal in Deane v LB of Newham [2024] UKUT 300 (LC) (Deane) at [50]-[55], in the Tribunal context, it is the overriding objective in rule 2 that principally needs to be considered. That, of course, provides (at sub-section (1)) that the overriding objective of the FtT Rules is to enable the Tribunal to deal with cases fairly and justly. The First-tier Tribunal must seek to give effect to that objective when interpreting any rule or practice direction or when exercising discretion under the Rules (sub-section (3)) and the parties must help the First-tier Tribunal to further the overriding objective and co-operate with each other and the Tribunal (sub-section (4)). As particularly relevant in this context, by sub-section (2), dealing with a case fairly and justly includes: (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; and (e) avoiding delay, so far as compatible with proper consideration of the issues.
53. Consistent with those general principles, Upper Tribunal Judge Ward in Enfield emphasised the need to consider the extent of the default both in terms of timing and nature, and whether there was any and, if so, what prejudice to the other party. I would add that the nature and extent of both the default and the prejudice to the other party have to be assessed by reference to their impact on the fairness of the proceedings. Barring, like striking out the whole of a party’s case, is among the most draconian steps the First-tier Tribunal can take. It departs from the fundamental principle that both parties should be heard and must therefore be treated as a measure of last resort. If a fair hearing remains possible on the listed date, without postponement or adjournment, that will ordinarily be a powerful consideration against barring or strike-out.
The UT further confirms that an appeal is very likely to be the appropriate route to challenge to a decision of the FTT, rather than the limited powers of Judicial Review in the UT (AAC) at §28-30.
Finally the case also gives some helpful guidance on the powers of the UT in governing its own procedure, and confirms that the entirety of the permission to appeal process falls under the governance of the procedure rules, and are not part of the statutory jurisdiction of the Upper Tribunal. The only jurisdiction question on an appeal is whether permission to appeal has been granted at §31-39, and in particular:
33. Rules 21(3) and (4) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (UT Rules) provide that an application for permission to appeal must be made in writing and must include the information set out in rule 21(4). There is no requirement to use a specific form, and the information included by the LA in its application for judicial review contained all the information required by rule 21(4). However, rule 21(2) provides that a person may apply to the Upper Tribunal for permission to appeal against the decision of another tribunal only if they have first made an application for permission to appeal to the tribunal that made the challenged decision, and that application has been refused or not admitted. The LA in this case made no such application, but I agree with Upper Tribunal Judge Mark in ZN, BB, JHS v London Borough of Redbridge (HB) [2013] UKUT 503 (AAC) (Redbridge) that the Upper Tribunal has power under rule 7(2) to waive any failure to comply with the Rules if it considers it just to do so. That discretion is to be exercised in accordance with the overriding objective in rule 2.
The headnote of the decision says:
(1) The appropriate route for challenging the First-tier Tribunal’s decision was an appeal under section 11 of the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007). Having regard to section 18(6) of the TCEA 2007 and the Lord Chancellor’s direction under Part 1 of Schedule 2 to the Constitutional Reform Act 2005, judicial review in the Upper Tribunal was not therefore available. However, the Upper Tribunal has power under rule 7(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to waive the irregularities in the way in which the proceedings were commenced and to allow the application to proceed as an application for permission to appeal. It was appropriate to exercise that power in all the circumstances of this case.
(2) Where a case management direction provides that the local authority will be automatically barred if it fails “without reasonable explanation” to comply with the direction, it does not have the effect of automatically barring a local authority that fails to comply: a judicial determination must first be made as to whether the local authority had a reasonable explanation for the failure: London Borough of Enfield v NH and anor (SEN) [2019] UKUT 1 (AAC), [2019] AACR 19 applied. Automatic barring directions in this form under rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 are misleading and should be avoided in future. In standard case management directions, it is likely to be preferable to use the discretionary barring power in rule 8(4)(a).
(3) The First-tier Tribunal’s direction in relation to the provision of a paper bundle had, with effect from 15 July 2025, been superseded by paragraph 53 of the Practice Direction on Procedure for the Preparation of Bundles in the Special Educational Needs and Disability and Disability Discrimination in Schools jurisdictions of the Health, Education and Social Care Chamber. Accordingly, a paper copy only needed to be supplied if it was “specifically and reasonably requested”. No such request had been made, so the First-tier Tribunal had erred in treating the local authority as having failed to comply.
(4) The First-tier Tribunal’s refusal to reinstate the local authority was also perverse. Barring and strike-out are measures of last resort. The discretion to make them, or to refuse to reinstate, needs to be exercised in accordance with the overriding objective, taking into account the nature and extent of the default and whether there is any prejudice to the other party or the fairness of the hearing that cannot appropriately be remedied by way of an order for costs or other case management direction. In this case, the fairness of the hearing had not been affected because the parent had the electronic bundle and had printed her own paper copy nearly seven months before the hearing. Any prejudice to the parent as a result of having to print her own copy could have been remedied by way of a costs order if the Tribunal considered that appropriate.
The link to the judgment is here.
Tom Wilding of 36 Public & Human Rights was instructed by the successful appellant, the London Borough of Wandsworth, instructed by the South London Legal Partnership.
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