BT & Anor, R (On the Application Of) v London Borough of Barnet

Recommendations by the First-tier Tribunal on social-care matters in an EHC Plan are non-binding, but a local authority must ordinarily follow them or give sufficiently detailed and cogent reasons for departing from them. The reasons must address the substance of the recommendation and identify the alternative provision, where relevant. A purported acceptance that in reality rejects the recommendation is not a compliant response. The Administrative Court may quash unlawful decision letters and require reconsideration, but will not itself determine the merits of the care package or supervise the authority’s continuing performance.

AT, a child with autism, appealed to the First-tier Tribunal against aspects of his EHC Plan. The Tribunal recommended social-care provision, including weekly overnight respite outside the family home. The local authority did not respond within the five-week period required by regulation 7 of the Special Educational Needs and Disability (First-Tier Tribunal Recommendations Power) Regulations 2017.

Later letters offered overnight care at home, while purporting to accept the Tribunal’s recommendation, and gave reasons for rejecting other elements of the recommended respite care. The claim challenged the failure to respond lawfully, the adequacy of the reasons and the lawfulness of the resulting care assessment.

1. Outcome. The claim succeeded on the principal ground. The purported decision letters of 12 September and 11 November 2019 were quashed. The local authority was required to reconsider the recommendations and provide a fresh response.
2. Regulation 7 of the Special Educational Needs and Disability (First-Tier Tribunal Recommendations Power) Regulations 2017 requires a written response within five weeks. The response must state what steps, if any, have been decided upon and give reasons for any decision not to follow all or part of the Tribunal’s recommendation. Although the recommendations are non-binding, they are made by a specialist tribunal which has heard evidence and argument. Cogent reasons are therefore required for departing from them, and the reasons must be especially cogent where the recommendation concerns an important element of the proposed provision.
3. The January 2019 letter was not a valid response because it merely postponed the decision. The later letters were capable of being out-of-time responses, but they failed to engage properly with the recommendation. In particular, the November letter purported to accept weekly overnight respite while offering only care within the home, although the Tribunal had recommended care outside the home. That was a substantive rejection without reasons.
4. A local authority may take account of resources when assessing need under section 17 of the Children Act 1989. Cost may affect the nature and extent of provision, but lack of funds cannot justify refusing all provision where some form of necessary overnight respite care is identified. The child’s needs may include the direct consequences of the parents’ exhaustion.
5. The court was not required to decide whether specialist residential care at BS or a link-foster arrangement was preferable. Its function was to review the legality of the discrete decision under challenge, not to determine the care package or monitor the authority’s performance.
6. Section 31(2A) of the Senior Courts Act 1981 did not prevent relief. It was not highly likely that the outcome would have been substantially the same, because a lawful fresh decision could not simply reproduce the existing misleading and inadequately reasoned response.