[2024] UKUT 166 (AAC)

Section D:

S is supported by Brent Social Care in accordance with a Child in Need Plan. The 0-25 Disabled Children and Young People Service. The allocated worker will work closely with the family and S to ensure that the appropriate support is in place. This will be reviewed in line with the borough’s Short Breaks process. S is currently in process of receiving 6 hours per week. This is provided through Direct payments which allows flexibility of services for S to access by [S’s mother] choosing which activities S should access. This could be D A R E every Saturday. Alternatively It could be in line with activities of interests or linked to S’s hobbies etc.

Section H2:

S is currently under a Short Breaks structure which allows regular social work visits, and multi professional meeting where the current care package would also be reviewed. Following this, the request of services would then be presented to Disabled Children and Young People’s Resource Panel. S is currently in process of receiving 6 hours per week. This is provided through Direct payments which allows flexibility of services for S to access by [S’s mother] choosing which activities S should access. This could be D A R E every Saturday. Alternatively It could be in line with activities of interests or linked to S’s hobbies etc.

Further context from the tribunal bundle

By way of context, I note the following from the tribunal bundle:

How the tribunal’s decision dealt with the social care issue

At [21], “social care to include both parents” was listed (under the heading, Section D) as an issue between the parties (as was, at [22], under the heading Section H2, the need for regular social work visits and the short breaks structure).

At [30], under the heading Evidence, the tribunal’s decision recorded that [the Appellant] wished to be included in any social care provision; he did not agree that he had been contacted by the social worker. At [32], the decision recorded the social worker’s evidence that she had attempted to contact [the Appellant] but he did not respond; she had not therefore been able to obtain his perspective on the level of support needed. At [35], it recorded S’s mother’s evidence that [the Appellant] refused to be involved with social workers and did not want them to be involved with S.

At [51], the tribunal gave its decision on the sections of S’s EHC plan dealing with social care. It said it deleted [the Appellant]’s allegations about Brent social care because it was not health provision reasonably required by the learning difficulties which result in S having special educational needs (and so did not belong in that section of the EHC plan). It said it had reinstated the Respondent’s description of S's social care needs and his social care provision. It said that no relevant evidence was submitted by the Appellant to contradict the Respondent’s wording in those sections.

Why I have decided there is an arguable error of law with regard to how the tribunal’s decision dealt with this issue

The powers of the tribunal on appeal are, amongst other things, to make recommendation that the social care needs and/or provision should be specified, or amended, in an EHC plan. There is Upper Tribunal authority (e.g. BB v London Borough of Barnet [2019] UKUT 285 (AAC) at [8], and other cases cited there) to say that, in performing this (and its other) functions, the tribunal should give effect to s19.

[the Appellant]’s arguments seemed mostly aimed at showing that the Respondent had failed to give effect to s19; this may or may not be the case, but it does not assist him in showing any arguable error of law on the part of thetribunal.

However, it became clear in the course of the oral hearing that [the Appellant]’s underlying complaint was that the tribunal had recommended that S’s mother be given sole discretion over the social work activities to be undertaken by S.

It seems to me realistically arguable that the tribunal’s decision did not adequately explain at [51] (or elsewhere) why it had decided to make this recommendation, in the face of [the Appellant]’s arguments that he should be involved ([51] does say that the Respondent’s wording was adopted “because no relevant evidence was submitted” by the Appellant to contradict it, but this, arguably, does not address the point, as it is not a matter of “evidence”). One can hypothesise as to why the tribunal took the course it did: given the state of relations between the parents, it perhaps thought that it needed one or other of the parents to make these decisions, and preferred the mother, as, on the face of it, she had been more cooperative with social services. However, the tribunal’s thinking on this is not explained; and it seems to me realistically arguable that the tribunal could have taken other courses in the circumstances, such as:

If there was such an error of law in the First-tier Tribunal’s decision, the Upper Tribunal will then have to go on to consider whether or not to set aside the First-tier Tribunal’s decision and, if it does, whether to remake the decision itself, or remit the case back to the First-tier Tribunal for reconsideration.

Both parties to the appeal must focus their argument on the above issues.

“that the First-tier Tribunal arguably erred in law by not adequately explaining why, in making recommendations as to the content of sections D and H2 of the Applicant’s son’s EHC plan, it recommended giving the son’s mother sole discretion over what social care activities S should access (so rejecting the Applicant’s argument, recorded at paragraph 30 of the First-tier Tribunal’s decision, that he be included in any social care provision).”

Both parties to the appeal must focus their argument on this ground.

It is not readily apparent to me why evidence of what has happened subsequent to the issuance of the First-tier Tribunal’s decision, or indeed any evidence that was not before the First-tier Tribunal, is relevant to the ground as set out above. Any party wishing the Upper Tribunal to rely on such evidence will therefore need to explain (in their skeleton argument and/or in their oral submissions at the hearing, as per the directions below) why they think it is relevant to the ground of appeal.”