[2024] UKUT 223 (AAC)

Ground (4) is that SRU needs substantially more care than other children her age need because not all children (i) require continuous [sic] supervision at home, at school, and while attending activities, events, and even friends’ birthday parties; (ii) carry medication everywhere they go; (iii) have a healthcare plan; (iv) have frequent attendance of hospital or medical appointments; (v) have someone ensuring that their medication is taken at the right time every day both day and night; (vi) have their foods specially prepared or monitored for contaminants; (vii) have a designated health or medical staff or a host to watch over them and prevent medical incidences or monitor them for hours or administer medication after a food allergy incident or during an asthma attack.

Ground (4) discloses no arguable error of law, for the following reasons.

Supervision

It was open to the First-tier Tribunal to find that the level of supervision needed is not substantially in excess of what is needed for someone of SRU’s age, especially given that she is of an age to carry her own EpiPen. SRU was still only 12 at the relevant time. She would not be expected to be without adult supervision anyway.

Moreover, the appointee’s evidence was that she “thinks the school nurse stores the inhalers and SRU will then tell the school if she needs it” (paragraph 26). So the evidence was that, even when an inhaler is needed at school, that need is identified not from supervision of SRU but by her bringing the need to the attention of the school.

Carrying her own medication everywhere she goes

It was open to the First-tier Tribunal not to find that SRU carrying her own medication shows any need for attention or for continual supervision (whether beyond that needed by any 12-year-old of her age or at all). It does not show attention or supervision at all.

Having a healthcare plan

The First-tier Tribunal appeared to accept that SRU had an allergy action plan and a care plan (paragraph 34). But the First-tier Tribunal found that she did not have an EHCP (paragraph 44(d)). The existence of the allergy action plan and of the care plan did not show a need for substantially more supervision than is needed for other children of SRU’s age.

“Frequent attendance of hospital or medical appointments”

The number of actual hospital admissions for asthma was not, on further examination of the appointee, as great as she had first indicated. The First-tier Tribunal recorded—

“Summary of oral evidence from OU during the hearing

As to non-admission hospital and medical appointments, it was open to the First-tier Tribunal not to find that they amounted to frequent attention or attention for a significant portion of the day, or that they amounted to supervision substantially beyond what another 12-year-old would need.

Having someone ensuring that SRU’s medication is taken at the right time every day both day and night

The First-tier Tribunal found (paragraph 44(j))—

“We found that SRU may need reminding to take her medication but that degree of reminding was likely to be in keeping with other children of her age (12) who need mediation. We accepted that SRU may need some assistance to ensure that she is using her inhalers properly. We were not persuaded that SRU needed help 4 nights each week due to breathlessness and not being able to sleep during the RP. If that was so we would have expected her to have missed even more school than she did and also that there would have been more medical advice and guidance about these issues.”.

Those findings were open to the First-tier Tribunal on the evidence before it, for the reasons it gave.

Having her foods specially prepared or monitored for contaminants

The First-tier Tribunal found (paragraph 44(h))—

“Although greater care has to be given by her parents around food preparation, most children who are 12 (like SRU was when the claim was made) do not purchase or prepare their own food.”.

That finding was open to the First-tier Tribunal.

As to monitoring of food at school, even if that could amount to frequent attention or attention for a significant portion of the day, or to continual supervision beyond that required by other 12-year-olds, it was not suggested or found that the school does have to monitor SRU’s food. The First-tier Tribunal recorded the following oral evidence from the appointee (paragraph 26)—

“With food, this is prepared by the parents to avoid contaminants which will cause allergy reactions. At school she takes packed lunch but she can eat herself”.

Although the appointee now asserts that there was an incident at school on 16 May 2024, that evidence was not before the First-tier Tribunal, so it did not err in law in not taking it into account. Moreover, that incident post-dates the date of claim, the decision date, the required period and the First-tier Tribunal’s decision. The incident does not on the face of it shed light on the forward look that had to be taken by the Secretary of State’s decision maker and would not satisfy the test in Ladd v Marshall [1954] EWCA Civ 1, [1954] 1 WLR 1489.

Having a designated health or medical staff or a host to watch over SRU and prevent medical incidences or monitor her for hours or administer medication after a food allergy incident or during an asthma attack

The evidence did not support that staff or a host had to watch over SRU substantially more than they had to watch over other 12-year-olds.