“[D] was diagnosed with Autism Spectrum Disorder (‘ASD’) when he was two years old. He is described in his EHCP as having a severe and complex learning disability. He also has significant communication difficulties.”
“The LA also will provide to the Tribunal the final version of the working document, any additional evidence of the parties as referred to in the previous paragraph and the proposed recommendations regarding Health and Social Care matters.”
“…I haven’t seen [the school risk assessment] but I would imagine that if there are 3 adults attending a community event, then if [D] attempted to run away more than 1 person would help and support. All physical intervention training that I am aware of would require 2 people to support someone who is eloping in the event that this occurs… The data collected during a baseline observation of the community with a family member indicated that he pulled away (and harness was used to restrain) 62 times during a 70 minute observation (see the October 21 skybound tribunal report for details). The risk assessment is based upon the reports that [D] has eloped from school, has eloped from home and has required restraint in the community (in the form of a harness and being physically supported away from roads etc) in order to keep him safe and walking with a caregiver. Additionally he has attempted to board buses and take items from shops and may cause damage to others and property in the community and there have been reports that he has run out in front of cars. This information regarding his behaviours has informed our decision that he would need 2:1 in the community to ensure his safety. Given that this is the information we have regarding his behaviour in the community and given that these [sic] behaviour could result in death, serious life changing injuries to himself or others or that a vulnerable person could become lost or unattended among community members etc, we must based [sic] our risk assessment on this and therefore before our team would be permitted to enter the community with him they would need at least 2 staff present in order to support if needed to ensure safety. At present the staff member who delivers his 1:1 ABA sessions in the home is not permitted to take him into the community alone and as such sessions have not occurred in the community. We are hoping that once we are able to enter the community and practice the safety skills he has learned at home then this ratio could be faded over time, however we wouldn’t be able to begin practising these skills in the community without ensuring he is safe to practice and 2:1 would be essential to ensure he is safe to practice these skills in the community without ensuring he is safe to practice and 2:1 would be essential to ensure he is safe to practice these skills in the community. This ratio would be reviewed on a regular basis by reviewing the incident forms of how often 2 people were needed to support in each community location. …a harness is used by the family as the safety measure, the Skybound team would not be able to use a harness as we are not trained in harness use and due to his age and size we would not be able to support our team in using a harness as this is likely to cause injury to staff members and himself.”
“ABA tutorand additional Assistant (no requirement for this additional person to be ABA trained, they do require training in restraint) for 2:1”
“The parties agree to record in the EHCP that [D] has no traffic awareness or understanding of how to keep himself safe outdoors. The Tribunal had before it a risk assessment prepared by Skybound Therapy, dated25 August 2021 supporting 2:1 “…..to ensure that if [D] does run away, two people are available to use fluid restraint and/or two-person escort techniques to keep him safe. [D] is almost 15 years’ old and is overweight. He cannot be restrained or escorted safely by one person. Indeed, when his mother walks with [D] in the community, she is forced to use a Houdini harness. The use of ongoing physical restraint of this sort is undignified and unsafe, as per para 6 of the Skybound Therapy Report regarding 2:1. It is important that, moving forwards, [D] is able to access the community without physical restraints being used.” (Parent submissions)”; (c). made the following findings about D’s need to access the community, as part of his education, and related provision: “14…We found that 2:1 adult support is needed when [D] is out in the community, but we also approved the LA’s wording for 6 weekly risk assessments to investigate if it remains appropriate so as to ensure the right level of protective support is in place. However, we determined that the number of hours – 15 – was excessive and should be limited to 5, as no persuasive evidence was provided that it should take place on every teaching day. The parties agreed that as a Key Stage 3 child it is right that [D] experiences the wider world, but we found that 5 hours used flexibly across a teaching week (notwithstanding additional social care time relevant to accessing outdoor experiences) is adequate to meet his needs, within the context of the teaching time each week. We determined 2:1 support is required for 5 hours per week to access the community safely and participate in education related outdoor activities. 15…We determined that the LA’s italicised wording [in WD 16] should be included, i.e. the second person does not need to be an ABA Tutor, but can be an Assistant with training in restraint. This determination is because the evidence on the point does not refer to need for a second ABA Tutor, just someone “……..trained in the same physical intervention skills and showing competence at application of the Behaviour Support plan…..” (Skybound Therapy Report of4 April 2022 )”; (d). in relation to nutrition, stated: “18. Page 26 [of the WD] – the deletion of content regarding nutritional advice is not shown as agreed. The Tribunal found this was properly recorded in section G, as health provision, not educational, and we determined it should be removed from section F.”; (e). in relation to assessment for sleep difficulties and ADHD stated: “22. Section G (page 28) [of the WD] - Assessments by a Paediatrician, regarding sleep difficulties and for ADHD are not, in the opinion of the Tribunal, health provision reasonably required for [D’s] learning difficulties or disabilities identified in section C and we make no recommendations regarding those proposed by the Parents…”; (f). in relation to Ms Long’s documentary evidence, stated: “23. Section D (page 10) [of the WD] – the Tribunal found the Child in Need (9 February 2021 ) and Family Assessments by the LA, thorough, whereas that from the independent Social Worker, Ms C Long (16 April 2021 ), to have context around anticipated school attendance, which now has been superseded. We found and determined in consequence that the LA’s italicised wording accurate from the evidence, which should be included, and the bold wording from the Parents to be of opinion and therefore inappropriate as content for this EHCP.”
“Ground 1 – failure to consult before amending final version of Working Document 29. Essentially, this ground argues procedural unfairness in proceedings before the FtT. The Appellants argue that they were taken completely surprise by significant post-hearing amendments made by the local authority to the Working Document, and subsequently adopted by the FtT. The first they knew of the amendments, argue the Appellants, was when they received the FtT’s final decision. I have already recounted how, on30 March 2022 , it was decided that D would be educated at home, not at school. 30. The SOR [statementofreasons], para. 1, records that “following the hearing [on1 April 2022 ] the parties provided the attached working documents being version 16 identifying to the Tribunal the content at issue”
“Half termly multi-agency meetings with BCBA A combination of PEAK, supervisor/lead tutor attendance to ensure multi-disciplinary team working to support [D’s] needs”. 35. The only predecessor Working Document supplied to me is version 11 (dated30 March 2022 and therefore drafted on the basis that S would attend school). It contains no obvious counterpart to the provision described in paragraph 33(a) above but did mention largely unagreed provision for daily supervised exercise as well as struck out provision for at least 1:1 adult ‘attention’ in the community. I have not identified any provision akin to the risk assessment provision described above in paragraph 33(b). Regarding the matter in paragraph 33(c) above, version 11 included a local authority amendment for daily supervised exercise to be performed by ‘ABA tutor’ and a parental amendment indicating that this was to be done by “Social Services”. 36. I recognise that I may not have the full history before me (due to the absence of Working Document versions 12 to 15, and any Tribunal direction or other instrument about the post-hearing management of the appeal). However, on the material that is available to me, I am persuaded that the Appellants have an arguable case. If the Appellants had no opportunity to make submissions on local authority proposals for the amount of weekly 2:1 community support, six-weekly risk assessments and the qualifications and expertise required by those providing 2:1 community support, arguably proceedings before the FtT were conducted unfairly. I grant permission to appeal on that ground, which henceforth is to be referred to as the first ground of appeal. It may be that the FtT was anxious to ensure that the recent fundamental change in D’s educational circumstances did not unduly delay the appeal proceedings. While delay is always to be avoided as much as possible, that cannot be at the expense of fairness 37. I also grant permission to appeal on the ground that the FtT arguably erred in law by ordering provision for multi-agency meetings that was so unclear as to be unenforceable (this is the Appellants’ PEAK argument). This is to be the second groundofappeal. … Ground 6 – restraint / restraint-only training 66. This ground concerns provision, within section E, that, of the two individuals providing D’s 2:1 community support, one could be “an Assistant with training in restraint” and need not be an ABA tutor (paragraph 23, SOR). This was justified by the FtT by reference to part of a Skybound report which stated that, alongside the ABA tutor, the second person should be “trained in the same physical intervention skills and showing competence at application of the Behaviour support plan”
“When I walkI will go outside without needing to wear a Houdini harnessor running awayand I will not run awayfrom the person with me. I will be less reliant upon family members for my care and support.” 68. This suggests that the parties had agreed that D should not wear a Houdini harness when accessing the community. Assuming the harness-exclusion was retained (the SOR does not say otherwise), what sort of restraint was anticipated, and for which the additional support worker required restraint training? On the face of it, arguably the EHC Plan anticipated restraint in the form of laying hands on D to inhibit his movement. If a harness was out of the equation, how else could he be restrained in the community? 69. The FtT papers include an email sent by Skybound to the local authority dated29 April 2022 (this is one of the unindexed and unpaginated documents). It refers to Skybound’s observations of D when accessing the community with a family member. A harness was used to restrain D 62 times during a 70-minute observation, in response to him pulling away. Skybound were unwilling to arrange community access unless D had 2:1 support but would review that ratio regularly to monitor the frequency with which two support workers had been needed in practice. But the Skybound team were unable to use a harness due to both a lack of training and the risk of injury to staff and D given his age and size. This is consistent with Working Document 16 which, as just noted, excluded use of a Houdini harness. 70. Unless I have missed something, the Appellants are right that the FtT did not define what it meant by ‘restraint’. I think it is unarguable that the everyday understanding is something like this: individual 1 uses physical force, with or without the assistance of some device or in conjunction with another individual/s, upon the person of individual 2 in circumstances in which individual 2 does not or cannot consent to the procedure. It is also clear that improper use of restraint has the potential for causing significant breaches of an individual’s rights. Bearing that in mind, the argument that the FtT erred in law by failing to define ‘restraint’ or set out permitted types of restraint (other than the excluded harness), has a realistic prospect of success. This is the third ground of appeal. I also observe that, arguably, the need for specificity is heightened in respect of restraint-related provision so that all professionals are left in no doubt as to what is, and is not, permitted, so that the risk of violating an individual’s rights is correspondingly reduced. 71. I also grant permission to appeal on the ground that the FtT arguably gave inadequate reasons for its decision, by failing to explain why it ordered provision involving, or anticipating, ‘restraint’ despite parental submissions that D should be able to access the community without physical restraint being used (see para. 13 SOR). This is the fourth ground of appeal. The Appellants submit that their submission was supported by expert evidence, but the FtT’s reasons arguably failed to engage with the parental case in any meaningful way. As matter of general principle, a fuller explanation than would suffice for other section F provision (provision which does not touch on fundamental rights in the same way as restraint-related provision) is required for reasons for restraint-related provision to be adequate. … Ground 10 – SCP vs. SEP: section 21(5) of the 2014 Act and related arguments 85. The FtT failed, according to the Appellants, to address the second report of a Ms Long, dated22 April 2022 , but focussed instead on her earlier report of16 April 2021 . I note that the second report, styled an addendum report, was dated22 April 2022 , that is after the date of the final hearing, but paragraph 5(c) of the SOR records that it was admitted. A number of other pieces of evidence were admitted and the FtT found that all, including therefore Ms Long’s second / addendum report, contained relevant material. 86. Ms Long’s reports were concerned with social care provision (para. 23 SOR). The FtT preferred the local authority’s assessment evidence to Ms Long’s first report on the ground that it was thorough and the reference point for Ms Long’s report (D being educated at school) had been superseded. In oral argument before me, the Appellants acknowledged that Ms Long’s report did not deal with D’s needs if educated at home, but that was because, in April 2021, it was thought that D would be educated at school. This effectively innocent deficiency was remedied in the22 April 2022 report, but the Tribunal failed to take this into account. 87. Despite the FtT’s social care powers being limited to making recommendations, so that it might be said there is no relevant ‘decision’ for the purposes of an appeal to the Upper Tribunal undersection 11 of the Tribunals, Courts and Enforcement Act 2007 , I am persuaded, for the reasons I am about to give, that the Appellants’ criticisms of the FtT treatment of Ms Long’s report meet the arguability threshold… 88. In admitting Ms Long’s second report, the FtT found that it contained relevant material. The first report had obviously become out-of-date, to some extent, since it was written when the plan was for D to attend a school. That deficiency was remedied, say the Appellants, in Ms Long’s second report, yet the FtT’s reasons say nothing about this report. The Appellant’s have established an arguable case that the Tribunal erred in law in its treatment of Ms Long’s second report by failing to take it into account and/or by providing inadequate reasons for preferring the local authority’s February 2021 assessment. This is the fifth ground of appeal. I should note that, if the extent of the Appellants’ reliance on Ms Long’s second report was limited to those parts referred to in the parental amendments to version 16 of the Working Document (see below), any error might be immaterial. … Ground 11 – HCP vs. SEP 92. The FtT found, at para. 18 of the SOR, that nutritional advice “was properly recorded in section G, as health provision, not educational, and we determined that it should be removed from section F”
“Risk assessments to be carried out every six weeks to monitor need for 2:1 during community access for educational purposes”; and “…additional assistant (no requirement for this person to be ABA trained, they do require training in restraint) for 2:1.”
“Half-termly multi-agency meetings with BCBA and supervisor lead tutor attendance to ensure multi-disciplinary team working to support [the child’s] needs.”
“[the Tribunal’s reasons are] not required to be an elaborate formalistic product of refined legal draftsmanship, but…must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts.”
“matters have moved on in respect of social care provision, with D being assessed by Dr Tamsin Woodbridge, Consultant Paediatrician Community Child Health on01 August 2022 who diagnosed D as having (amongst other matters) a sleep disorder and challenging behaviour with inattention and impulsivity. A plan was made by Dr Woodbridge for a referral to SSCLS (Specialist Service for Children with Learning Disabilities) and for D to be reviewed in one year.”