[2023] UKUT 177 (AAC)

The matter came back before the Tribunal for the review hearing on 3 September 2022.There was no oral hearing and the matter was considered on the papers in the light of additional evidence and the parties’ written submissions.

The panel noted that it had received a number of documents in advance of the review hearing:

“4.

The Tribunal panel received the following documents in advance of the review hearing on 3 September:

(a)

Review submissions from Westminster City Council dated 22 August 2022;

(b)

Written submissions from [A’s parents] dated 22 August 2022;

(c)

Letter dated 9 March 2022 to [her parents] from Mr Markwell;

(d)

A’s updated Education, Health and Care (EHC) plan dated 9 March 2022;

(e)

Email correspondence between [her mother] and Ms Hayley Short, senior EHC/AR coordinator, dated 29 July 2022;

(f)

The Tribunal panel’s decision dated 23 February 2022;

(g)

Letter to the Tribunal from HCB Solicitors, on behalf of [A’s parents], dated 1 September 2022; and

(h)

A letter from Mr David Corcoran of I Support Behaviour Ltd, dated 31 August 2022.”

Mr Wolfe KC drew particular attention to Mrs Welby-Delimere’s original report of 9 June 2021 which stated that

“A struggles with holiday periods, without the structure of a school day she is unable to follow a routine, organise herself, or to get going on things, as result her mood dips and she hits what she describes as a “slump”. Her sleep pattern deteriorates, she becomes withdrawn, retreats into binge watching TV series and loses her motivation to engage with anything. She also struggles with the transition to holidays and then back to term time, needing time to adjust.

Over the past year, A has become increasingly keen to work towards independence, ultimately wanting to move out of home. She feels that at 20, she still lacks many of the life skills that she needs and is keen to gain these, she understandably does not want to be so dependent on her parents. She is increasingly open to ideas/strategies to support her in moving forward, however finds these hard to implement. She is also increasingly keen to make friends and to broaden her life experience, she is extremely aware of how far behind she is both socially and academically. She has a very good therapeutic team around her, all of whom are supporting her with understanding herself and working on strategies with her, however, A’s ASD means that she finds it hard to generalise strategies outside of the therapy room, as well as to remember what she is meant to be doing and to implement it, largely due to her poor executive functioning and her difficulties with planning and organising her thoughts and actions, as well as staying focused. This applies not only to her life skills in the home and the outside world, but also to her academic studies. She will need support on a daily basis to manage her independent work outside of lessons, to learn how to prioritise and organise, as well as to stay focused.

A requires a mentor who can support her on a daily basis in putting strategies into place in the “real” world, to enable her to generalise them in different situations, as well as regular repetition in order for them to become automated. A is also vulnerable due to her lack of experience of the “real” world, relationships etc, she will benefit from building a relationship with a mentor who can safely guide her. This support will be required both within and without the home, so that she can acquire the life skills that she requires, in order to become more independent and to reach her potential. This will need to be continued during the holiday periods, so that A can be supported in maintaining a structure to her day and to continue putting the strategies into practise”.

He also relied on the email from Mr Corcoran dated 31 August 2022 which said

“Often people that are autistic/have significant executive functioning difficulties are ‘blind’ to time and are unable to use time to plan and to function. Difficulties with executive functioning leads to a specific cognitive profile and will lead to significant challenges with managing day-to-day life, daily living skills, and learning. The impact of this is an increased likelihood that a person will be anxious and avoidant of tasks and engaging in aspects of life that require the ability to utilise executive functioning skills. A, as has been mentioned, has significant executive functioning difficulties, has extreme avoidance, and both generalised and social anxiety.

Day-to-day skills and Activities of Daily living would normally be taught as part of the school curriculum. A requires her programme to be funded fully on a full-time basis, and not just in term time. It is essential that all aspects of functional living skills are covered as part of A’s ongoing education. To remove this support outside of term times would be to remove the very foundations that are required for A to learn, to develop, and to function on a day-to-day basis. The programme offered by I Support Behaviour and the Autism Mentors enables A to continue to work on these areas of cognitive deficit throughout the year, to bridge the gap between her current performance in these areas and her peers of a similar age group.

To remove the package of care and support outside of term time will mean that A will not maintain skills that have been learnt to date. Her performance will deteriorate, and time will need to be spent covering areas of functioning that have been taught previously. It is well established that Autistic individuals learn differently from their typically developing peers, require significantly more repetitions of learning, will require opportunities to generalise learning, and will require a consistent programme of maintenance to minimise any degradation in skills acquisition. The generalisation of key concepts in typically developing/neurotypical individuals is a key part of overall cognitive performance. Learning for the neurotypical brain includes the ability to generalise from concepts, class, feature, function and to apply this learning to functionally similar or related activities. It is essential that generalisation is programmed for in autistic learners, and those opportunities for maintenance are provided. To offer this package of support to A on a term time basis, at a point where she is significantly behind her age-related peers, would mean that A would not be afforded the opportunities to learn and develop key skills”.