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  • 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.

    ER H

    07 Dec 2023