[2025] UKUT 010 (AAC)

The local authority accept that the Working Document was amended by themselves on 6 May 2022 to include the following within D’s required special educational provision:

“Risk assessments to be carried out every six weeks to monitor need for 2:1 during community access for educational purposes”; and

“…additional assistant (no requirement for this person to be ABA trained, they do require training in restraint) for 2:1.”

As a result of those amendments, the Working Document became version WD 16.

The local authority accept that no issue as to the required amount of 2:1 community supervision was raised at the final hearing on 1 April 2022 but for the very good reason, the authority submit that it only became a relevant issue after that hearing, once the Appellant “had confirmed its position on 2:1”.

On 6 May 2022, the local authority’s representative emailed D’s mother’s representative. The email attached WD16, associated written submissions, and stated, “the working document…has been briefly amended to reflect the proposals on behalf of the local authority”. The authority argue it was “incumbent” on the Appellant to read their submissions and WD16. It should have been obvious that the ‘proposals’ would relate to the ‘new 2:1 issue’. Had the Appellant read the authority’s email and attachment and taken issue with anything therein, she would or should have sought the Tribunal’s permission to reply or to adduce further evidence. The Appellant did neither despite the fact that, at this time, she had legal representation.

In the context of this case, the local authority argues there was no procedural unfairness in the First-tier Tribunal’s approach. The Appellant put the authority in the difficult position of having to provide views on a very late amendment, which led to adjournment of the hearing on 1 April 2022. The authority pragmatically decided not to object to the last-minute change in position, but the Appellant was aware that the authority needed to provide its views. The authority’s amendment to the Working Document should not have taken the Appellants by surprise and the authority in fact conceded 2:1 supervision in its WD 16 amendments leaving the only outstanding issue as the number of weekly hours of 2:1 supervision.

If the Upper Tribunal finds that the First-tier Tribunal’s procedure for dealing with ‘this additional evidence’ was unfair, the local authority argue that it should exercise its discretion not to set aside the Tribunal’s decision for the following reasons:

the Appellant argues that she had no opportunity to make submissions on the authority’s proposed six weekly risk assessments for the purpose of reviewing ongoing need for 2:1 supervision. However, the Appellant did provide detailed submissions on why 15 hours 2:1 supervision was required (see the Appellants’ written submissions dated 6 May 2022). The Tribunal permissibly concluded that 15 hours was ‘excessive’. Even if it is assumed that the Appellants were unaware of the authority’s proposal for 5 hours weekly 2:1 supervision, had they been aware of that proposal it would not have changed the Tribunal’s decision;

the Tribunal accepted the need for six-weekly risk assessments because it was appropriate to ‘investigate if it remains appropriate to ensure the right level of protective support is in place for D’. That was consistent with Skybound’s evidence that it would regularly review the 2:1 support worker ratio by monitoring the frequency with which two support workers had been needed in practice. Again, the Appellant’s claimed ignorance of the authority’s risk assessment proposal could not have made a difference to the Tribunal’s decision. It is very difficult to see what alternative the Appellant seeks. No alternative has been suggested nor any explanation provided for the objection to risk assessments either in principle or every six weeks. Such assessments have to be considered in the child’s best interests and were consistent with the evidence before the Tribunal;