[2025] UKUT 191 (AAC)

At paragraph 49 of its Decision, the ETW Panel said:

“If the approach of advocated by the [Council] was correct, then following a recommendation of the Tribunal if then the Health Board refused to secure the provision, a parent may have to resort to the lengthy, expensive and uncertain (in this context) remedy of judicial review to ensure that provision was delivered.”

Ms Shepherd submitted that the ETW Panel erred in taking into account the means of enforcement, which was an entirely irrelevant consideration to the construction of the statutory scheme.

I do not consider that this ground has any force. As a tenet of construction, it is not inappropriate to consider whether one interpretation of provisions leads to a result which the legislature could not have intended. That is not the same as taking into account an irrelevant consideration when (e.g.) exercising a power or discretion. In any event, the key analysis of the ETW Panel is found in paragraph 48 of its Decision which, as described above, construes the relevant provisions correctly. Paragraph 49 is not material to that analysis: it simply points out that the (already rejected) alternative construction proposed by the Council would have curious and unhappy consequences.

Of course, for the reasons set out above, those consequences do not flow from the statutory provisions properly construed: there can be no “lacuna of responsibility” for ALP which is identified as being required to meet identified ALN. Any dispute as to responsibility is a matter between the local authority and an NHS body which refuses to accept responsibility for ALP. Unless and until it does accept that responsibility (or is found to have acted unlawfully in not agreeing to do so), then the local authority will remain responsible for making the provision.

For those reasons, the appeal on Ground 2 is dismissed.