[2024] UKUT 166 (AAC)

The Respondent submitted that even if the tribunal erred in law by inadequately explaining this aspect of its decision, the error was immaterial because “any alternative proposal would have been fraught with difficulties and impossible to implement in any practical sense”; the Respondent alluded in particular to the difficulty of deciding who should receive the “direct payments” (that pay for social care activities).

In my view, these are assertions about what the tribunal would inevitably have found – but are unsupported by any findings actually made by the tribunal. It is similar to the point made above about the tribunal not having made a finding about the Appellant’s ‘obstruction’ of any social care activity: had such a finding been made, then the Respondent’s point here would have traction. But no such finding was made; nor can it fairly be inferred.

The Respondent made a further argument in the alternative, to the effect that, “in S’s case, Section H2 does not actually identify the provision that S should receive; it only states what he is receiving i.e. it is simply a matter of fact.”

I cannot accept this argument: in law, Section H2 sets out the social care provision reasonably required. This section of S’s EHC plan cannot be said to be a mere description of present circumstances.