[2025] UKUT 010 (AAC)

Following a hearing attended by the Appellant and D’s father, but at which the local authority was not represented, the Upper Tribunal granted permission to appeal against the First-tier Tribunal’s decision on six grounds described as follows in the Upper Tribunal’s permission determination (I have omitted parts of the determination which refused permission to appeal on certain other grounds):

“Ground 1 – failure to consult before amending final version of Working Document

29.

Essentially, this ground argues procedural unfairness in proceedings before the FtT. The Appellants argue that they were taken completely surprise by significant post-hearing amendments made by the local authority to the Working Document, and subsequently adopted by the FtT. The first they knew of the amendments, argue the Appellants, was when they received the FtT’s final decision. I have already recounted how, on 30 March 2022, it was decided that D would be educated at home, not at school.

30.

The SOR [statementofreasons], para. 1, records that “following the hearing [on 1 April 2022] the parties provided the attached working documents being version 16 identifying to the Tribunal the content at issue”. The FtT gave its decision on 15 June 2022. The FtT’s order was drafted by reference to version 16 of the Working Document. I have already noted that much additional written evidence was admitted by the FtT after the hearing on 1 April 2022.

31.

My copy of version 16 includes local authority and parental amendments that are both dated 6 May 2022. Email correspondence indicates that the FtT set a “deliberation deadline” of 4 p.m. on 6 May 2022…

32.

Pausing for a moment, I note that the final hearing of this appeal was atypical. Usually, the parties are required to settle their written case in advance of the hearing, oral submissions can then address the written material and, if further documentary material is allowed to be admitted after the hearing, it tends only to relate to one or two discrete points. No doubt, the course taken by these FtT proceedings was related to the late decision that D was to be educated at home.

33.

The Appellants argue that the FtT adopted the following substantive local authority amendments to version 16 of the Working Document (underlined = agreed; bold = parental amendment; italic = local authority amendment):

(a)

weekly 2:1 support for D to access the community of 5 rather than 15 hours. The related Working Document wording reads, “Full ABA programme…with155hours per week 2:1 to allow [D] to access the community safely”;

(b)

provision for six-weekly risk assessments to monitor the need for 2:1 support when D was accessing the community. The related Working Document wording reads, “Risk assessments to be carried out every 6 weeks to monitor need for 2:1 during community access for educational purposes”;

(c)

one of the workers providing 2:1 support in the community was not required to be ABA trained but did require restraint training. This wording was placed in the ‘by whom’ column of the section F Table alongside provision for a full ABA programme which included weekly 2:1 support for D to access the community the number of hours of support being unagreed. The wording itself read, “ABA tutorand additional Assistant (no requirement for this additional person to be ABA trained, they do require training in restraint) for 2:1”.

34.

The Appellants also complain that the FtT adopted a meaningless version 16 amendment that PEAK, a type of curriculum, should attend meetings, which read as follows:

“Half termly multi-agency meetings with BCBA A combination of PEAK, supervisor/lead tutor attendance to ensure multi-disciplinary team working to support [D’s] needs”.

35.

The only predecessor Working Document supplied to me is version 11 (dated 30 March 2022 and therefore drafted on the basis that S would attend school). It contains no obvious counterpart to the provision described in paragraph 33(a) above but did mention largely unagreed provision for daily supervised exercise as well as struck out provision for at least 1:1 adult ‘attention’ in the community. I have not identified any provision akin to the risk assessment provision described above in paragraph 33(b). Regarding the matter in paragraph 33(c) above, version 11 included a local authority amendment for daily supervised exercise to be performed by ‘ABA tutor’ and a parental amendment indicating that this was to be done by “Social Services”.

36.

I recognise that I may not have the full history before me (due to the absence of Working Document versions 12 to 15, and any Tribunal direction or other instrument about the post-hearing management of the appeal). However, on the material that is available to me, I am persuaded that the Appellants have an arguable case. If the Appellants had no opportunity to make submissions on local authority proposals for the amount of weekly 2:1 community support, six-weekly risk assessments and the qualifications and expertise required by those providing 2:1 community support, arguably proceedings before the FtT were conducted unfairly. I grant permission to appeal on that ground, which henceforth is to be referred to as the first ground of appeal. It may be that the FtT was anxious to ensure that the recent fundamental change in D’s educational circumstances did not unduly delay the appeal proceedings. While delay is always to be avoided as much as possible, that cannot be at the expense of fairness

37.

I also grant permission to appeal on the ground that the FtT arguably erred in law by ordering provision for multi-agency meetings that was so unclear as to be unenforceable (this is the Appellants’ PEAK argument). This is to be the second groundofappeal.

…

Ground 6 – restraint / restraint-only training

66.

This ground concerns provision, within section E, that, of the two individuals providing D’s 2:1 community support, one could be “an Assistant with training in restraint” and need not be an ABA tutor (paragraph 23, SOR). This was justified by the FtT by reference to part of a Skybound report which stated that, alongside the ABA tutor, the second person should be “trained in the same physical intervention skills and showing competence at application of the Behaviour support plan”. No other FtT amendments to D’s EHC Plan mention ‘restraint’ but my provisional view is that the FtT must have anticipated that the need for ‘restraint’ might arise when D’s was accessing the community. Otherwise, there would seem little point in specifying that a care worker should have restraint training.

67.

While ‘restraint’ was not otherwise mentioned in the version 16 Working Document, section F did also include the following:

“When I walkI will go outside without needing to wear a Houdini harnessor running awayand I will not run awayfrom the person with me. I will be less reliant upon family members for my care and support.”

68.

This suggests that the parties had agreed that D should not wear a Houdini harness when accessing the community. Assuming the harness-exclusion was retained (the SOR does not say otherwise), what sort of restraint was anticipated, and for which the additional support worker required restraint training? On the face of it, arguably the EHC Plan anticipated restraint in the form of laying hands on D to inhibit his movement. If a harness was out of the equation, how else could he be restrained in the community?

69.

The FtT papers include an email sent by Skybound to the local authority dated 29 April 2022 (this is one of the unindexed and unpaginated documents). It refers to Skybound’s observations of D when accessing the community with a family member. A harness was used to restrain D 62 times during a 70-minute observation, in response to him pulling away. Skybound were unwilling to arrange community access unless D had 2:1 support but would review that ratio regularly to monitor the frequency with which two support workers had been needed in practice. But the Skybound team were unable to use a harness due to both a lack of training and the risk of injury to staff and D given his age and size. This is consistent with Working Document 16 which, as just noted, excluded use of a Houdini harness.

70.

Unless I have missed something, the Appellants are right that the FtT did not define what it meant by ‘restraint’. I think it is unarguable that the everyday understanding is something like this: individual 1 uses physical force, with or without the assistance of some device or in conjunction with another individual/s, upon the person of individual 2 in circumstances in which individual 2 does not or cannot consent to the procedure. It is also clear that improper use of restraint has the potential for causing significant breaches of an individual’s rights. Bearing that in mind, the argument that the FtT erred in law by failing to define ‘restraint’ or set out permitted types of restraint (other than the excluded harness), has a realistic prospect of success. This is the third ground of appeal. I also observe that, arguably, the need for specificity is heightened in respect of restraint-related provision so that all professionals are left in no doubt as to what is, and is not, permitted, so that the risk of violating an individual’s rights is correspondingly reduced.

71.

I also grant permission to appeal on the ground that the FtT arguably gave inadequate reasons for its decision, by failing to explain why it ordered provision involving, or anticipating, ‘restraint’ despite parental submissions that D should be able to access the community without physical restraint being used (see para. 13 SOR). This is the fourth ground of appeal. The Appellants submit that their submission was supported by expert evidence, but the FtT’s reasons arguably failed to engage with the parental case in any meaningful way. As matter of general principle, a fuller explanation than would suffice for other section F provision (provision which does not touch on fundamental rights in the same way as restraint-related provision) is required for reasons for restraint-related provision to be adequate.

…

Ground 10 – SCP vs. SEP: section 21(5) of the 2014 Act and related arguments

85.

The FtT failed, according to the Appellants, to address the second report of a Ms Long, dated 22 April 2022, but focussed instead on her earlier report of 16 April 2021. I note that the second report, styled an addendum report, was dated 22 April 2022, that is after the date of the final hearing, but paragraph 5(c) of the SOR records that it was admitted. A number of other pieces of evidence were admitted and the FtT found that all, including therefore Ms Long’s second / addendum report, contained relevant material.

86.

Ms Long’s reports were concerned with social care provision (para. 23 SOR). The FtT preferred the local authority’s assessment evidence to Ms Long’s first report on the ground that it was thorough and the reference point for Ms Long’s report (D being educated at school) had been superseded. In oral argument before me, the Appellants acknowledged that Ms Long’s report did not deal with D’s needs if educated at home, but that was because, in April 2021, it was thought that D would be educated at school. This effectively innocent deficiency was remedied in the 22 April 2022 report, but the Tribunal failed to take this into account.

87.

Despite the FtT’s social care powers being limited to making recommendations, so that it might be said there is no relevant ‘decision’ for the purposes of an appeal to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007, I am persuaded, for the reasons I am about to give, that the Appellants’ criticisms of the FtT treatment of Ms Long’s report meet the arguability threshold…

88.

In admitting Ms Long’s second report, the FtT found that it contained relevant material. The first report had obviously become out-of-date, to some extent, since it was written when the plan was for D to attend a school. That deficiency was remedied, say the Appellants, in Ms Long’s second report, yet the FtT’s reasons say nothing about this report. The Appellant’s have established an arguable case that the Tribunal erred in law in its treatment of Ms Long’s second report by failing to take it into account and/or by providing inadequate reasons for preferring the local authority’s February 2021 assessment. This is the fifth ground of appeal. I should note that, if the extent of the Appellants’ reliance on Ms Long’s second report was limited to those parts referred to in the parental amendments to version 16 of the Working Document (see below), any error might be immaterial.

…

Ground 11 – HCP vs. SEP

92.

The FtT found, at para. 18 of the SOR, that nutritional advice “was properly recorded in section G, as health provision, not educational, and we determined that it should be removed from section F”. Regarding sleep difficulties, the FtT declined to include a section G recommendation for paediatric sleep and ADHD assessment.

93.

In failing to consider D’s related sleep and ADHD difficulties, except when refusing to make provision for assessment, the FtT failed, argue the Appellants, to address a fundamental part of the parental case. The fact that the cause of D’s sleep difficulties might not have been diagnosed did not prevent it from being a ‘need’ for EHC Plan purposes (SG v Denbighshire County Council and MB [2018] UKUT 369 (AAC) 40.). I am satisfied that this argument meets the arguability threshold. I grant permission to appeal on the ground that the Tribunal arguably erred in law by failing to deal with an issue raised by the appeal. This is the sixth ground of appeal.”