Judge criticises council for failure to implement recommendations of First-tier Tribunal

The London Borough of Barnet gave “disingenuous” and “erroneous” reasons for departing from the recommendations of the First-Tier Tribunal (FTT) in a case concerning an autistic boy’s care, a judge has ruled.

Philip Mott QC, sitting as a deputy High Court judge, heard the case brought against the council by brothers AT and BT through their father CT.

AT is aged seven and has autism. His parents disagreed with provisions in AT's educational, health and care plan and appealed to the FTT, which they also asked to make recommendations about the amount of social care provided including short respite breaks.

The FTT agreed with the parents that ‘school T’ was appropriate, and directed amendments to the EHC plan, but could only make recommendations in respect of social care, which in general supported the parents' submissions.

In BT & Anor, R (On the Application Of) v London Borough of Barnet [2019] EWHC 3404 (Admin) Judge Mott said: “These recommendations were incorporated into the EHC plan, but have not been implemented.

“Instead [Barnet] has produced further care assessments…which offers more limited social care provision.”

CT challenged Barnet arguing that it failed to respond to the FTT recommendations, failed to make a transparent decision and that its care plan was perverse and unreasonable.

He also claimed that Barnet’s short breaks policy was unlawful because it purported to cap the financial cost and had no eligibility criteria for accessing overnight provision, and that Barnet’s refusal to provide respite outside the family home was unlawful and unreasonable.

The parents wanted the plan to include some overnight respite care, in part because of the effect AT’s behaviour had on the welfare of his older brother BT.

Barnet argued that its proposed provision was adequate as AT had settled at his new school, which Judge Mott said was ”a fair point” but had no bearing on the need for overnight respite care.

The council also said that following the FTT’s recommendations would be unfair on other service users because of the cost involved.

Judge Mott said: “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.”

He said two letters sent by Barnet “do not show sufficiently cogent reasons for departing from the recommendations of the FTT…the disingenuous claim that the recommendation about weekly overnight respite care is accepted, when it is clear that the FTT was referring to care outside the home and all [Barnet] was prepared to offer was care within the home, means that the reasons for departing from that recommendation are not merely erroneous, they are non-existent”.

He said Barnet should have “honestly and fairly dealt with the recommendations, rather than pretending to accept a recommendation which was in substance rejected” by not offering overnight respites.

Judge Mott quashed the council’s decision and required it to reconsider, dismissing its claim that this would serve no purpose as it would make the same response.

“I consider that course is not open to [Barnet],” Judge Mott said. “It is now apparent that the purported acceptance of the weekly overnight respite care provision is not an acceptance of what the FTT was recommending.

“Any fresh decision letter will have to address this and provide sufficient explanation of why it is not followed, if that is the case.”

Mark Smulian

(c) HB Editorial Services Ltd 2009-2019