Q:
If an error in law is made, can social care decisions be challenged at UTT? Would this be considered an error?
LA have an autism plus policy to access the Children with Disabilities team (Level 3). Although the published policy states that children at Level 2 can receive direct payments/short breaks in practice, they can't.
We submitted as evidence the LA response to stage one complaint, which specifically states, "Direct payments is a specialist service that are only available to children who meet the criteria for the children with disabilities team. This is also true of other specialist short break services". In that letter, it also sets out the reason the threshold for CWD is not met as he doesn't have a severe learning disability + Autism. The LA offered an Early Help Assessment. and referred to the Local Offer and the HAF programme as the recommended provision.
This was written by the manager of the CWD team who was the LA witness at the hearing. The appeal was BFI + Social Care but section I was already conceded and he attends a s41 specialist. The LA did not submit any information regarding the social care element of the appeal until five days before when they added this witness and her statement.
I presumed that the purpose of including social care as an extended appeal was so needs and provisions would go into the EHCP, and if LA and I disagreed, the tribunal would make recommendations. Once it became clear that the LA was not responding to that element, I wasn't sure what recommendations the Judge could make.
During the hearing, my position was that the outcome of the Early Help Assessment was already pre-determined. That provision must be based on needs and not which team the child is with. I referenced the Liverpool LGO decision regarding what seems to be an identical practice. I wanted a recommendation for a children's and families assessment.
The Judge said that he would be recommending an Early Help Assessment because the LA is within its rights to apply a policy that children work through the stages starting at level 1. He said that the practice of short breaks/direct payments only being available to children with CWD was a 'miscommunication' even though the witness did not say at any point that children at stage 2 could also be eligible for short breaks.
Would this be classed as an error? Or have I misunderstood? I am thinking now the LGO would have been a better route, but I am presuming that will not be possible now as it's been to SENDIST.
A: SenseCheck
- 0 Yes
- 0 No
- 2 Other
- 15 Dec 2023
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Other ...:
As Sean has said, the difficulty with social care is that the Tribunal can only make non-binding recommendations and therefore if the local authority is opposed to your position on social care, getting a recommendation from the Tribunal will often not be of assistance - because it might not be implemented.
In your case it seems the root of the issue is the policy that is being implemented by the local authority (i.e. that you need to meet certain criteria to access a full care assessment/short breaks), and whether that is lawful. You may wish to obtain legal advice from a community care solicitor about this as it is something that could be challenged via a letter before action. Legal aid is available for community care advice, depending on your financial circumstances.
Caroline Barrett
Rook Irwin Sweeney LLP - 08 Dec 2023
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Too fact specific, I can't generalise.:
This is a detailed question that I politely suggest requires specific legal advice, and this isn't really the forum for this, although others may disagree, and if they do I look forward to reading their contributions.
Any recommendations made by the Tribunal on health and social care aspects of an EHC plan are non-binding, and there is no obligation to adhere to them, but the LA and/or responsible health commissioning body (ICB) are generally expected to do so. These are recommendations put forth by a specialist Tribunal and should not be disregarded or declined without very careful consideration. Any reasons for deviating from these recommendations must be elucidated in sufficient detail and outlined in writing in response to recommendation letters.
It is crucial to note that if an LA or responsible health commissioning body decides not to follow the Tribunal's recommendations, parents and young people have the option to pursue various alternative avenues of complaint. This includes lodging complaints with the Ombudsmen or seeking a judicial review of the decision. If there has been a significant change in circumstances relevant to the Tribunal's recommendations since the decision was made, parents and young people may request a review based on that ground, pursuant to Rule 48 of the Tribunal Procedure Rules.
Furthermore, the Tribunal may be approached for a review of a decision and/or permission to appeal to the Upper Tribunal in the event of a legal error. This encompasses errors related to health and social care matters considered by the Tribunal.
The Tribunal extended appeals lie alongside other health and social care complaint routes. Disagreements about SEND that are not directly related to those parts of an EHC plan that can be appealed to the Tribunal can be resolved via a number of local complaints procedures. Complaints about the way an LA or responsible health commissioner has carried out its statutory duties can be made using the LA’s or responsible health commissioner’s own statutory complaints procedure and escalated to the Ombudsmen (either the Local Government and Social Care Ombudsman (LGSCO) or the Parliamentary and Health Service Ombudsman (PHSO), as appropriate), if necessary. There is also a range of other avenues for complaint in the NHS, depending on which part of the service the complaint refers to. Going to the Tribunal about the health and social care elements of an EHC plan does not prevent a parent or young person also complaining about other aspects of the disagreement through other complaint procedures, something which may be of assistance in your case.
Sean Kennedy
Talem Law
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