[2025] UKUT 191 (AAC)

Whilst the process has been long, during its course, most disputes between the Council and Mrs X have been resolved. For example, the Council now accepts that it will maintain X’s IDP (see paragraph 32 of the ETW Decision); and the ETW Panel resolved the model and amount of SALT and OT, which neither party appeals.

However, as the Council’s first ground of appeal, Ms Shepherd submitted that the ETW Panel erred in concluding that the SALT and OT should be included in Section 2B as well as, or instead of, Section 2C of the IDP. Although, by section 14(10)(a) (quoted at paragraph 11 above), where a local authority maintains an IDP (as does the Council in this X’s case), it “must secure the [ALN] described in the plan”, section 21(5)(b) (quoted at paragraph 17 above) explicitly disapplies the need for the local authority to secure provision where it is to be secured by an NHS body. Therefore, provision which is to be secured by an NHS body should be specified in Section 2C, but, given that Section 2B only relates to the body which maintains the IDP (paragraph 23.38 of the ALN Code, quoted at paragraph 19(i) above), not in Section 2B. In short, it was submitted that Section 2B should include only the ALP for which the local authority was responsible, and to place ALP for which an NHS body is responsible in Section 2B would be contrary to the legislative intent to make NHS bodies responsible for some ALP.

Furthermore, it was submitted that it would cause confusion if the same provision was specified in both Sections 2B and 2C as public bodies would not know who is responsible for securing the ALP.

However, I do not agree with the premise upon which this analysis is built. Like the ETW Panel in its Decision (paragraph 48), I consider the true effect of the statutory scheme to be unambiguously clear from the wording used in the scheme.

As I have described (and as required by the 2018 Act), the ALN Code makes clear that Section 2 of the IDP is required to set out (so far as relevant to this case):

Section 2B expressly includes all ALP identified as being required. Whilst paragraph 23.38 of the ALN Code correctly states that: “The body maintaining the IDP has duties about securing the ALP set out in it (see Chapters 11-17 of the Code)…”, nothing in that paragraph or Chapters 11-17 of the Code suggests that Section 2B should or can omit any ALP, e.g. on the basis that the statutory scheme allows or requires that particular provision be made by someone other than the local authority. Therefore, as the ETW Panel concluded (paragraph 48 of the ETW Decision), where ALP is described in Section 2C as being the responsibility of an NHS body, that does not affect or reduce the requirement to describe in Section 2B all ALP that is identified as being required by the child.

This construction does not arguably frustrate the legislative intention to make NHS bodies responsible for some ALP. If, following the process dictated by the statutory scheme, ALP is described in Section 2C as being the responsibility of an NHS body, then that is the responsibility of that NHS body and not the responsibility of the local authority because of section 21(5)(b) (quoted at paragraph 17 above). For the same reason, I see no arguable source of confusion in that construction: it is clear beyond peradventure that ALP described in Section 2C is the responsibility of the NHS body and not the local authority and, in any event, Section 2B requires identification of the organisation/service to provide each specific element ALP and, where that is an NHS body, then that body (and not the local authority) should be identified there.

For those reasons, I do not consider that the ETW Panel erred in respect of this point of principle.

In respect of the OT, that disposes of this ground of appeal: the OT was correctly placed in both Section 2B and Section 2C of the IDP.

However, the ETW Panel’s application of the principle to the SALT requires further consideration. The ETW Panel found – as they were entitled to do – that SALT Plan A would meet X’s needs, and Plan B would not, so the provision included in Plan A should be identified in Section 2B and provided. Having heard evidence from the Health Board therapist relied on by the Council, they then found that “the Health Board is unlikely to agree to provide the direct weekly speech and language intervention we have found necessary to meet X’s needs”, i.e. the provision in Plan A. But, as I understand it, the Health Board were never asked whether, despite their preference for Plan B, if the ETW concluded that the appropriate SALT was that in Plan A, would they agree to provide that in Plan A. In any event, in the light of the ETW Panel conclusion, on 10 January 2025, in an internal email later copied to the Council, that same therapist set out the SALT the Health Board agreed to supply in terms of Plan A; and the Health Board have been providing SALT to X in accordance with Plan A since. On this evidence, which was before me, it is my understanding that the Health Board, subject to the usual reviews of the therapy from time-to-time, have agreed that the Plan A SALT is a treatment or service that is likely to be of benefit in addressing X’s ALN; and they have agreed that they can and will provide X with that SALT.

In my view, the ETW Panel ought to have asked the Health Board in terms whether it would be responsible for Plan A SALT provision if the Panel determined (as, in the event, they did) that that provision would meet X’s needs, and Plan B would not. We now know that the Health Board would have confirmed that, in those circumstances, they would have done so. However, had the Health Board given that confirmation, then, given that an NHS body cannot be made responsible for ALP unless it agrees to do so, the Panel ought to have made a recommendation to the Health Board under section 76 and paragraph 33.21 of the ALN Code that they should be responsible for providing SALT in accordance with Plan A to which the Health Board would have been required to respond within six weeks (see paragraph 19(iv) above). If they had then not agreed to provide that SALT, the responsibility for providing it would have remained with the Council.

However, given that the Health Board have now accepted responsibility for making the Plan A SALT provision for X, I can simply order that the IDP be amended to describe the SALT provision which the Health Board have agreed to provide in Section 2C, and also to show in Section 2B that that provision is to be provided by the Health Board (and not the Council).

To that extent, and that extent only, the appeal is allowed.