Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 166 (AAC)

Fecha: 08-May-2024

Why I have decided that the ground of appeal is made out

Why I have decided that the ground of appeal is made out

Parties’ main submissions

16.

The Respondent argued that the tribunal had adequately explained why it decided to give S’s mother sole discretion over what social care activities S could access: as the decision stated at [51] (explaining why it reinstated the Respondent’s description of S’s social care needs and his social care provision), the Appellant had not adduced relevant evidence to contradict that wording.

17.

The Appellant pointed to the wording he had sought to insert at Section D of S’s EHC plan (and in the particular the underlined passages below, as supporting his argument that he had provided the tribunal with a positive proposal as to social care):

“S’s safeguarding and welfare issues must be the utmost priority when coming into contact with allocated workers from Brent Social Care. The constant change of support workers and social workers with no experience of working with children who have Autism and learning difficulties has caused emotional and mental harm to S and his sister. The harm that is been done by the current social worker to S and his sister can not be taken lightly. It will not be to the best interest of S for the tribunal to give this social worker the cover to continue to do harm.

The support from Brent social care must be to support S in the generalisation of social, communication and OT skills taught to situations outside of the school and also to support him with his academic progress.

The support that Brent social care provides for S is inconsistent and sometimes not in the best interest of S. Any future support provided must be in consultation with both parents and advice from the professionals that support S at school.

Brent social care claim: ‘The allocated worker will work closely with the family and S to ensure that the appropriate support is in place’. This claim is false. Brent Social Care, as can be seen in their proposal for this EHCP documents and the report submitted as evidence to the tribunal, they have lost sight of working to the best interest of S because of their desire to isolate and marginalise a parent. As stated above, any future support provided must be in consultation with both parents and advice from professionals that support S at school.”

18.

The Respondent contended that the Appellant’s wording “simply sought to criticise the Respondent, with no evidence to support those assertions”; and that the Appellant “did not make any amendments to the working document to identify the social care provision that he believed was required”; nor did he “put forward any evidence or information as to the activities he would like S to access”; the Respondent submitted that, per the evidence before the tribunal, the Appellant “did not want S to access social care provision” (paragraph 16 of their skeleton).

19.

The Respondent’s arguments rested heavily on evidence summarised at [32], in the section of the decision under the heading Evidence, where the tribunal recorded evidence given by the Respondent’s social worker at the hearing to the effect that

“… she agreed that both parents needed to be considered in relation to social care provision. She said that she had attempted to contact the Appellant but he did not respond. She was not therefore able to obtain his perspective on the level of support required.”

20.

The Respondent also pointed to evidence in the tribunal bundle, being the social worker’s “cfa” (child and family) assessment from February 2023, which said (in the “analysis and recommendation” section) as follows:

“A new social work assessment was requested due to S being in Tribunal. The purpose of the assessment was to obtain a holistic perspective from each family member where possible and to ensure that the assessment captures the family's needs well.

Unfortunately this has not been the case as [the Appellant] has not engaged with the assessment process and wishes no social care involvement. [The Appellant]'s perspectives would have been key as he has raised concerns that S would benefit from being within an alternative school provision. [The Appellant] has also shared with the social worker that he does not wish for Social Workers to be involved with his children as he believes it is not positive for S.”

21.

The Respondent contended that because the Appellant had been uncooperative with, and highly critical of, Brent social services, this meant that the Appellant did not want S to access any social care provision – and so, to give him any say over social care provision would be perverse. VS and RS v Hampshire CC [2021] UKUT 187 (AAC) was said to be relevant, as it “accepted that, where a Tribunal does not have sufficient evidence before it to make recommendations in respect of social care provision, then it is reasonable for it not to do so – so long as that is clearly stated”. The Respondent submitted that the Appellant “had a clear objection to social care input” and “did not want to engage with the service”, and so “the only reasonable response” was to give S’s mother, alone, power to choose the activities S should access. The Respondent contended that it would not have been appropriate for the tribunal itself to specify social care provision activities, as this would “unnecessarily have restricted the provision that S could access”. To involve the Appellant in choosing social care activities for S “without any evidence as to what that might look like, would leave the provision at risk of breaking down”, which plainly would not be in S’s interests.