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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> BT & Anor, R (On the Application Of) v London Borough of Barnet  EWHC 3404 (Admin) (12 December 2019)
Cite as:  EWHC 3404 (Admin),  ELR 62
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
| THE QUEEN
on the application of AT and BT
(by their father and litigation friend CT)
|- and -
|LONDON BOROUGH OF BARNET
Jon Holbrook (instructed by HB Public Law) for the Defendant
Hearing dates: 3 December 2019
Crown Copyright ©
Philip Mott QC :
i) Failure to respond to the FTT recommendations.
ii) Failure to make a transparent decision and to have and apply policies and criteria.
iii) The Defendant's Short Breaks Policy is unlawful because it purports to cap the financial cost and includes no eligibility criteria for accessing overnight provision.
iv) The care plan for AT is perverse and unreasonable.
v) The refusal to provide respite outside the family home in unlawful and unreasonable.
The FTT Decision
"His skills are significantly delayed in all areas of development, particularly in the areas of communication and learning to learn skills. He engages in behaviours that challenge and put him and others at risk of injury (and in fact he has on a number of occasions bitten, scratched and pinched those around him). He has recently started to become destructive of the fabric of his family home and he has started to lash out when he has become frustrated. He sleeps badly and is often awake for long periods at night. He has been taking medication for insomnia for some years. He exhibits what is described as "pica" behaviour, namely he puts inanimate objects and other things in his mouth such as glue, dirt, and, latterly, his own faeces. He has recently started smearing his own faeces on the walls of his home."
"[AT] has a diagnosis of Autistic Spectrum Disorder (ASD). He is a little boy who presents with significant and severe communication difficulties and social interaction difficulties, significant attention and sensory difficulties and a history of motor mannerisms and repetitive behaviours. He has difficulty sleeping.
[AT]'s needs are complex and having a direct impact on the entirety of the family and its functioning.
In the home setting [AT] is constantly on the go. He has a very strong need for sensory input and his behaviour is difficult to manage. [AT] frequently climbs onto the furniture, and when he goes into the garden he moves between swinging, climbing and trampolining after a couple of minutes at each. Sometimes he runs into the house, swings on the patio door, and runs out again. He requires constant supervision as he shows limited awareness of danger or impulse control. He frequently pulls at his parents or attempts to bite them. He recently managed to open the front door and get out of the house.
[AT] has significant sensory needs in the areas of movement (the vestibular system) and touch (the tactile and proprioceptive systems) and some auditory sensory processing difficulties. He has difficulty filtering information from the environment and can become overwhelmed by sensory stimulation around him and then can have difficulty calming down.
He has frequent meltdowns which are unpredictable, unmanageable and can last for up to an hour.
[AT] presents as sensory seeking (making sounds, biting, continually moving, swinging, jumping). He also appears to avoid some sounds. His difficulty with sensory regulation is having a significant impact on his ability to attend and engage in activities. His sensory difficulties can result in considerable difficulties for him in regulating his behaviour, so that excessive movement, reduction in verbal communication, refusal to cooperate with adult requests, and tantrums can result. These behaviours are also triggered when [AT] is not motivated to comply with adults' requests, or when he has to transition from one activity or location to another.
[AT] presents with behaviours including aggression, hyperactivity, irritability, features of anxiety and frequent temper tantrums. He is very hyperactive and it is difficult to monitor his safety. He has no safety awareness.
[AT] engages in behaviours that challenge which put him and others at risk of injury. He has ongoing behavioural challenges both at night and during the day.
His sleep difficulties are severe and disruptive to himself and the family and not responsive to first- and second-line interventions. Despite referral to the Evelina Sleep Clinic last year there is still no clear improvement."
i) In paragraph 56 it notes the statement of Ms Baylis that "respite provision tends to be allocated to children with profound difficulties and only after alternatives have been explored. This is because for any child (and particularly a very young child) being away from their parents can be distressing and this is compounded when the child has Autism". The FTT sought further explanation of that argument, but it was not forthcoming (paragraph 57).
ii) An unsigned, undated and unattributed document produced by the Defendant set out the offer of short breaks provision, including support worker assistance in these terms (paragraph 58):
"[AT] is also receiving Disability Living Allowance of approximately £327 per week. This equates to around 7 hours of support worker assistance. The local authority propose an additional 3 hours support worker assistance at a direct payment rate of £12.02 per hour to allow for [AT] to receive support for 10 hours per week. This equates to 1 overnight respite for [AT]. This arrangement is only until [AT] returns to education or the sleep clinic concludes (whichever of these occurs sooner)."
Counsel for the Defendant did not attempt to justify its inclusion of DLA funding, which in any event was £327 per month, not per week (paragraph 60).
iii) In oral evidence Mr Chihwehwete "appeared to accept that one night of respite care, i.e. [AT] being cared for outside the home, was reasonable, but then he resiled from that acceptance" (paragraph 59).
"We were hampered in our deliberations on the amount of care provision that [AT] needs by the absence of a robust and relevant social care assessment of the needs of [AT], his brother [BT], and [their parents]. We therefore did the best we could to make recommendations for social care provision."
i) Section H1 of the EHC Plan (social care provision which must be made under section 2 of the Chronically Sick and Disabled Persons Act 1970). [AT]'s parents are to be allocated 12.5 hours per week (i.e. for Monday to Friday) of support from a carer in the home or in the community during term times, to be used flexibly according to [AT]'s needs.
ii) Section H2 of the EHC Plan (any other social care provision reasonably required by the learning difficulties or disabilities). Overnight respite one night per week during term time, one weekend per month (including weekends during school holidays), plus one week during the summer holidays.
The status of the FTT recommendations
"(a) be in writing,
(b) state what steps, if any, the local authority has decided to take following its consideration of the recommendation, and
(c) give reasons for any decision not to follow the recommendation, or any part of it."
The local authority must send a copy of this response to the Secretary of State (regulation 7(4)).
"Although any recommendations made by the Tribunal on health or social care elements of an EHC plan are non-binding and there is no requirement to follow them, the LA and/or responsible health commissioning body are generally expected to follow them. They are recommendations made by a specialist Tribunal and should not be ignored or rejected without careful consideration. Any reasons for not taking them forward must be explained and set out in writing as explained below.
Responses must be in writing and state what steps the health commissioning body or LA social care commissioner has decided to take following consideration of the Tribunal's recommendations. If a decision has been taken not to follow all or part of the recommendations, the health commissioning body or LA social care commissioner must give sufficiently detailed reasons for that decision."
Events subsequent to the FTT Decision
i) "It is felt that some of the recommendations would not be in the best interest of [AT]"
ii) "It is recommended that until the Evelina sleep clinic can review the effectiveness of the medication the family should be offered additional direct payments with the view that this can be used for a support worker one night a week equating to 10 hours of care for [AT] in the event that he wakes. It is recommended that this respite takes place within the family home in light of [AT]'s age and level of need. This direct payment will be in addition to Disability Living Allowance that the family can utilise as they wish."
i) "[The parents] have repeatedly requested respite stays outside of the home for [AT]. When the social workers have raised concern about the impact that this would have on [AT, his mother] has said it would be fine. Removing [AT] from his home environment will not benefit [AT] and may actually contribute to his anxieties when he is back home. He will be in a strange environment with unfamiliar adults caring for him, different routines and with an ever changing unfamiliar peer group. His level of social understanding is likely to make this a confusing and possibly distressing experience for [AT]. Research by the National Autistic Society 2016, which has included views from adults with ASD. This indicates that children with ASD find the world very confusing and very unpredictable and big changes to their routines can exacerbate anxiety. The same research advises that the need for routines and sameness is very important in providing predictability for the children and reducing anxiety. The social worker acknowledges the concerns of the parents but it is important the solution also meets [AT]'s needs. Therefore the social worker is exploring the possibility of a bespoke respite fostering arrangement. [AT] would go to the same place each time and have one consistent carer he could get to know."
ii) "These parents appear intent on their preference in having [AT] sleep out of the home overnight once a week. [AT] is only 7 years of age and as an autistic child, with some specific sensory needs, will require a quiet and familiar environment. It has been noted by both [AT]'s parents and by his school that progress in [AT]'s behaviour is being made. I am concerned that if [AT] attends the respite provision identified by [his parents] this will be detrimental to this progress and to his future wellbeing. Overnight respite, in my view, is best met in [AT]'s home. If, having tested overnight provision in the home, this is not found to be effective then the Local Authority would want to identify a foster family that could offer respite. This would promote the development of a relationship between [AT] and a family with whom he would become familiar and who would be in a position to meet his emotional needs. I would hope that [his parents] would recognise this as preferable to the likely changing and unpredictable environment in a 'residential' type setting."
The letter of 12 September 2019
i) AT had settled at his new school. Although it was known that he would attend this school, it was not known how successful this would be. This is a fair point, but Mr Holbrook could not direct me to any evidence that the overnight disturbance had also settled as a result. If not, AT's settling into his new school is comforting but does nothing to remove the need for overnight respite care.
ii) The FTT had no "robust and relevant social care assessment", which hampered its deliberations. This had now been remedied. That is true, but the new assessments do not provide new evidence to undermine the FTT decision. They merely repeat the assertion which was before the FTT that overnight care outside the home would be distressing for AT.
iii) The Defendant had not been permitted to call evidence from a manager from the 0-25 Disability Team. There is nothing in the FTT Decision to suggest that such an application had been made to it. In relation to another area where the Defendant had failed to provide evidence, its counsel pointed to the standard directions limiting the number of witnesses. The FTT Decision, at paragraph 54, is scathing about this excuse, making it clear that such additional evidence would have been allowed. The same must have been true for evidence about overnight respite care, especially as the FTT itself had asked for elucidation (paragraph 57).
iv) The effect of implementing the FTT recommendation would be unfair on other service users. It is right that a local authority can lawfully take account of its resources when making an assessment of needs under section 17 of the Children Act 1989 (see G v Barnet LBC  2 AC 208; McDonald v Kensington & Chelsea  PTSR 1266). This applies to the provision of services under Section H2 of the EHC Plan, although it would not necessarily apply to services under Section H1. But although the cost of provision may be relevant to its nature and extent, the lack of funds cannot properly be used in a case such as this as an argument to refuse any provision at all. If a proper conclusion here is that some form of overnight respite care outside the home is needed, there must be a way of providing it even if the form is not exactly the parents' preference.
v) The FTT did not expressly state that it was focussing on AT's needs rather than those of his parents. This is wrong. Paragraph 61 makes it clear that the FTT was looking at respite care warranted by section 17 of the Children Act 1989 or by section 2 of the Chronically Sick and Disabled Persons Act 1970. Those require attention to be focussed on the child or disabled person's needs. In any event, the distinction is a nonsense. If the parents are too exhausted to be able properly to care for their child, the child will suffer directly. AT's needs included the needs of his parents.
vi) The FTT did not give reasons why this amount of respite care is reasonable. The reasons appear from a reading of the Decision as a whole. There are descriptions of the behaviour of AT, his extremely short sleeping times, and the effect on his parents. There are the concerns about the risks posed to AT himself and others in the house by his conduct. Ms Morris, a Special ASC Advisory Teacher called as a witness by the Defendant, had written a lengthy report on AT. She stated (as reproduced in paragraph 27 of the FTT Decision), "During the visit I was extremely concerned by the behaviour [AT] was exhibiting, his levels of activity, and by the parental reports.", and later "I felt strongly that [AT] was extremely vulnerable, and that his family were, understandably, struggling to manage his needs. I was concerned about the potential risks to [AT] himself, but also about the impact on the family as a whole … I referred [AT] to social care the same day as I felt that the family were in need of further support, including a need for respite care". As to the amount of care, this was a specialist Tribunal whose members were entitled to use their own skill, experience and judgment.
Further events after 12 September 2019
The letter of 11 November 2019
i) It is not appropriate for AT, at the age of 7, to be removed from his home and family and placed in a respite unit. He would find this confusing and possibly distressing. This is difficult to follow, or at least to accept, since the removal would be limited to holiday periods when AT would not also be removed to school. In any event, by all accounts he settled very well and quickly at T School, so the removal from home cannot be universally negative.
ii) AT is still a young boy who needs proximity to his parents. The same comments apply, since this relates only to holiday respite care.
iii) Respite care would not tackle the underlying cause of AT's sleep issues. That may be so, but it would deal with the danger to AT from his parents extreme sleep deprivation. There is no reason why sleep management (which has been considered since at least the referral to the Evelina Clinic in 2017) should not be looked at alongside the respite care. It cannot be a case or one or the other, but not both.
iv) Respite support in the home should be the first option that is tried. This was an argument put to the FTT and rejected. The effect on the family of AT's sleep disturbance is too great.
v) The proposal is not reasonable when compared to what other service users get. I have dealt with this financial argument above.
The status of the letters of 12 September and 11 November 2019
i) This is not a case like Ermakov dealing with a prescribed statutory regime. Hutchison LJ made clear that the court's decision related only to that particular statutory regime.
ii) The recommendations in Section H2 relating to respite care come under section 17 of the Children Act 1989. That creates a general duty to assess need in children and provide appropriate services. Mr Holbrook rightly draws my attention to the analysis of Lord Neuberger in Ahmad v Newham LBC  PTSR 632, at .
iii) Since Ermakov was decided Parliament has added sub-section (2A) to section 31 of the Senior Courts Act 1981. This requires me to refuse relief "if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred". In considering whether that is so, I am bound to consider the later purported decision letters, as I must the pleadings and arguments before me.