QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
(A child by her litigation friend, VD)
|- and –
|Isle Of Anglesey County Council
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Sheren Guirguis (instructed by the solicitor for the Defendant) for the Defendant
Crown Copyright ©
SECTION A: INTRODUCTION
(a) In that C is a child in need, section 17 (1) of the Act of 1989 imposes upon the local authority a general duty to promote her welfare and, so far as is consistent with that duty, to promote her upbringing by her family, by providing a range and level of services appropriate to her needs.
(b) In that C is disabled, the local authority, by virtue of section 17(2) and paragraph 6 of Schedule 2 to the Act of 1989, have a duty to provide services designed to minimise the effect upon her of her disabilities and to give her the opportunity to lead a life which is as normal as possible.
(c) In that, as is accepted, the conjunction of C's needs and the mother's illness prevents the mother from providing her with suitable accommodation or care, as a result of which she requires accommodation, the local authority, by virtue of section 20 of the Act of 1989, have a duty to provide it.
(d) Before providing such accommodation the local authority shall, by virtue of section 20(6) of the Act of 1989, so far as is reasonably practicable and consistent with her welfare, ascertain her wishes regarding such provision and give due consideration to them having regard to her age and understanding.
(e) By virtue of section 23(8) of the Act of 1989, the local authority have a duty, so far as is reasonably practicable, to secure that the accommodation provided for C, as a disabled child, is not unsuitable to her particular needs.
(f) In that C is a disabled child in relation to whom the local authority have functions under Part III of the Act of 1989, section 2 of the Chronically Sick and Disabled Persons Act 1970 applies: see section 28A of the Act of 1970. Section 2 provides:"(1) Where a local authority … are satisfied in the case of any person … who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely -…(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience; …then… it shall be the duty of that authority to make those arrangements…"
(a) It provides for C to spend four nights a week at school during term time. There is no doubt that, although that she has said that she would like to spend two nights a week at school, C has at all times quickly added that she would not wish to spend four nights a week at school. She has offered two main reasons for not wishing to do so: first that she would be the only child at the school spending four nights a week there and that she would not want thereby to be singled out as the only child unable for some reason to return to a family environment for the amount of time for which all other pupils do so; and second that it would preclude her staying during term time with Mr and Mrs R, of whom she is very fond and of whose family she considers herself part.
(b) The mother cannot sustain the degree of care expected to be provided by her to C under the plan. This point obviously relates in particular to periods of school holiday. Recognising, as she does, the quantity of support for her to be provided by professional workers under the plan and also the provision for respite on one weekend a month at Bryn Hwfa, the mother, supported by C, says nevertheless that in a sense such provision misses the point; and that what the mother, with her chronic fatigue syndrome and her other medical difficulties, needs is a complete break from the heavy duties of attending to C. She says that it is not the function of support workers to provide anything other than "support" and that they cannot be expected (and do not expect) to assume primary responsibility for C when they are at the mother's home. She adds that in any event, when support workers are present in the home, C naturally gravitates towards her for physical and other assistance rather than to a professional worker. The argument on behalf of C is that, during holiday periods, it would be impossible for the mother to sustain her general care at home notwithstanding the volume of support, the attendance at the club and the monthly weekend respite.
(c) The plan wholly fails to address an important part of C's need, namely her need to be with the family which has become her second family, namely that of Mr and Mrs R. During the last two years C has been staying in that home for about five nights each week; yet the proposal is that she should stay there no more. Why, ask the mother and C, should the local authority be proposing to provide a mass of expensive professional assistance to support C in the mother's home when C's second family, in need of a substantially lesser degree of professional support, is waiting nearby to continue to have her to stay with them on an extensive respite basis? Insofar, say the mother and C (supported in all these submissions by Mr and Mrs R), as there are physical problems about C's staying with Mr and Mrs R in their present home, Mr and Mrs R, as its owners, would be prepared to sell it and to move into other more suitable accommodation in the same area with the five other family members to whom I have referred. I will address the detail of their proposal to move in paragraph 32 below; but it is important to note that it does not inevitably involve substantial financial assistance from the local authority.
(a) in term time she should stay at Gogarth for two nights a week, with Mr and Mrs R for the two other weeknights and with the mother for the three nights of the weekend, with, as offered, substantial professional support, the attendance at the club and the weekend residential respite each month; and
(b) during holiday periods she should stay with Mr and Mrs R for the four weeknights and with the mother for the three nights of the weekend, with the same degree of support.
SECTION B: THE HISTORY
"It is quite hard to escape the conclusion that the role of the foster family in [C's] care has been down-played within the assessment process in order to avoid the necessity of dealing with the difficult and possibly expensive issue of providing appropriate facilities for [C.]"
She expressed the hope that the local authority's permanency panel would recognise the importance of Mr and Mrs R for C.
"The current care plan is to formalise a shared care arrangement between [the mother] and Mr and Mrs [R]. This arrangement needs to be supported by the … Permanency Panel.
An assessment of Mr and Mrs [R's] property has been undertaken and work will be carried out, with their agreement, when the care plan has been confirmed by the Permanency Panel.
You should be aware that the Authority has already expended £110,000 in adapting [C's] home. We need to be confident that any further expenditure will ensure that [C's] needs are met in the long term."
"The department feel that the current respite care arrangements are not satisfactory or safe for [C] and even with adaptations the matter of space and time would remain an issue. Also, the Care Standards Inspectorate have raised questions about the space available for all the family including a small home's resident. This has heightened the department's responsibility to everyone concerned in ensuring adequate space, time and safety.
However, the department are extremely grateful for the care which has been provided to [C] over many years and hope to co-work with you to ensure her transition to an alternative placement."
"Clearly, in providing service to [C], we have to be mindful of the quality of the care she receives. Although we appreciate that Mr and Mrs [R] have many positive qualities, we have concerns about their ability to provide comprehensive care to [C] as both permanent foster carers and as owners of a small home."
"… the Local Authority believes it has discharged its duty towards this little girl by entering into arrangements to provide her with a property especially adapted to meet her present and future assessed needs in partnership with the Housing Association. The Local Authority's decision in December 2002 not to duplicate those facilities is considered reasonable. The Local Authority will support [C] being cared for in her specially provided and adapted home either by [the mother] or by Carers."
By way of reply Ms Burton expressed surprise; suggested that his position was different from the social workers who had accepted that the role of Mr and Mrs R in the life of C was significant; and observed that it seemed that the local authority were reneging upon their assurance that they would support Mr and Mrs R in securing an alternative home.
" … [Mr and Mrs R] need to purchase a larger property, equipped to meet the needs and requirements of both their fostering tasks and their responsibilities as small home owners.
The local authority is not able to assist them to purchase a larger property, primarily due to their business status as a private small home.
My initial telephone enquiry with your organisation has also indicated that your position is similar to ourselves, i.e. you would not be able to fund the purchase of a larger home for the couple due to the business status of their home. But I would be grateful for a formal response to the above enquiry."
Ultimately, by letter dated 27 April, Tai Eryri replied to the local authority. It indicated that it was far from clear that it would be unable to contribute to the funding of a home if the only business conducted at it was looking after a young adult, with the result that technically it was a 'small home'. The letter continued:
"Before we would be in a position to formally approve Mr and Mrs [R] for the Homebuy Scheme, we would of course require Anglesey County Council's support for the application and the Welsh Assembly Government's clarification regarding the business use issue."
"Mr and Mrs [R] have worked 'outside of the care plan' with [the mother], i.e. agreed to [C] visiting their home or phoning [C] or returning telephone calls to [C] or [the mother], but have then requested additional payments by the Department for 'these services'. Without a collaborative approach, it is difficult for the Department to accurately monitor a placement or the effect of benefits of sustaining a placement….
It is of concern that they have entered into this type of relationship with [the mother and C] that extends beyond their agreed remit but then feel disgruntled when the Department questions their motives and refuses payment for services that have not been agreed upon."
I have the distinct impression that, seizing upon an inappropriate request for further payment, Ms Neville wrote an unduly negative report about Mr and Mrs R, which failed to reflect what even the local authority had previously conceded about the importance of their role in C's life.
"There is no doubt that [C] and her mother are very dependant on [Mrs R] and that [Mrs R] has always been there to help her. However, [C] is now growing up and this dependency does need to be reduced a little… [C] can still have contact and respite with [Mrs R], but the facilities at [Mrs R's] house does make the care of [C] very difficult there."
"[C] wishes to extend the positive benefits of Gogarth School and try an initial two nights per week residential place with a possible view of extending this to four nights a week."
In light of the fact that, through her advocate, C had made clear that she did not wish to stay overnight at school for four nights a week, it was in my view misleading for the author of the assessment to indicate, as apparently part of C's wish, the possibility of an extension of overnight stays to four nights a week. Such was no part of her wish: it was part only of the local authority's plan. In the summary the author went on to state that Mr and Mrs R had provided a valuable relationship to C and that contact between them could still continue. It was said that the local authority would be willing to assist in relation to contact arrangements when Mrs R and the mother were in a position to enter into negotiations in that regard. It has been a constant recent refrain of the local authority that they have been unable to particularise their proposals for contact between C and Mr and Mrs R because of an alleged refusal on the part of Mrs R and the mother to discuss it specifically. I accept that the pendency of these proceedings will have inhibited discussion of the details of any such radical reduction in C's visits to the home of Mr and Mrs R as the local authority propose; nevertheless I cannot understand why the local authority have been unable to craft specific proposals reflective of what they regard as appropriate.
"Since my first contact with her in September 2003, I have seen [C], at home, at the foster home and at school. [C] appears to be influenced in her thinking to some extent by the adults in her life as any other 14-year-old young person is likely to be. However I am certain that what she has told me on more than one occasion is her own view, whether that coincides with the views of others or not."
SECTION C: CONCLUSIONS
(a) fail to promote her welfare by providing a range and level of services appropriate to her needs for the purpose of section 17(1) of the Act of 1989;
(b) fail to provide her with services designed to minimise the effect upon her of her disabilities for the purpose of section 17(2) of, and paragraph 6 of Schedule 2 to, the Act;
(c) fail, in relation to the proposed accommodation, namely partly at school and partly with the mother but not at all with Mr and Mrs R, to give due consideration to her wishes, having regard to her age and understanding, contrary to section 20(6) of the Act; and
(d) fail to secure that such accommodation is not unsuitable to her particular needs, contrary to section 23(8) of the Act.
The bona fides of the local authority are not in doubt. But, like a computer virus, some demon has, in my judgment, come to infect the local authority's decision-making referable to C in the course of the last two years.
" … it is apparent that Mr and Mrs [R] have not been able to secure funding in order to obtain suitable accommodation and thus they have not been able to fulfil the conditions set by the local authority."
In that the local authority were in breach of their clear promise to write letters of assistance for Mr and Mrs R in attempting to secure funding, the rejection of their candidacy as part future carers for C on that ground was indefensible. In the grounds the local authority go on to refer to the alleged refusal of Mrs R to undertake the necessary hygiene functions referable to C; and I have pointed out in paragraph 47 why that was a misrepresentation of Mrs R's position. They then proceed to refer to one occasion upon which, on arrival at school from the home of Mr and Mrs R, C was wearing soiled underwear. They then articulate the allegation, now withdrawn, about the alleged misuse by Mr and Mrs R of support workers in requesting them to care for S. They then revert to the absence of funding of a more appropriate home for Mr and Mrs R and advert to the alleged complication presented by the registration of their home as a 'small home' for S; but, by the date when the Grounds were filed and served, the home was no longer so registered.
MR JUSTICE WILSON: I am very grateful to Mr Patel for pointing out a stupid error in one paragraph of my judgment. That I have altered. I assume from the silence of Miss Guirguis that although almost the whole judgment will have been unpalatable to her, she did not discern any obvious errors. So, subject to that correction, I hereby declare that this written judgment is my judgment in the matter.
MR PATEL: My Lord, thank you very much. I sent to your clerk this morning an order that we have managed to agree. Unfortunately, we agreed it rather later than we hoped to have done. I did try to get a message to your Lordship last night that we may not need to come before you this morning, but I am afraid that message could not be delivered and we come before you as a matter of courtesy
MR JUSTICE WILSON: Miss Guirguis must have had to get up very early. Thank you. I have fiddled around with it a little bit so I wonder whether at the end of this short hearing you could take this away, make a few alterations. I have suggested that possibly your clerk might take the disk of it to a Miss Day in the Administrative Court Office. Would that be acceptable?
MR PATEL: My Lord, I am well familiar with that process so, yes.
MR JUSTICE WILSON: Mr Patel, I have put in, I think in accordance with my judgment and I hope it is not controversial, that any further hearing hereof be conducted, if practicable, by Wilson J or another nominated judge who is also a judge of the Family Division.
MR PATEL: My Lord, It is certainly acceptable to me.
MR JUSTICE WILSON: Good. Miss Guirguis?
MISS GUIRGUIS: Yes, my Lord.
MR JUSTICE WILSON: Mr Patel, what other matters, if any, are there?
MR PATEL: There are three other matters, my Lord. The first is, obviously, given your judgment and given the care plan now has been quashed, we have now reached the summer holidays and C left school yesterday. We are anxious to have arrangement as to what should happen during the summer holidays. It is our proposal that C should stay with the Rs as she was before these proceedings came about and the care plan came about, for the four or five nights a week and the two or three nights a week at home in the shared care arrangement. I asked my learned friend whether the local authority could undertake that that would be an interim plan to the next plan, as it were. She has been unable to take instructions on it is the main point.
The second point is that there needs to be a planning meeting. As I understand, in order for there to be a care plan, whether it is an interim care plan or a final care plan, there needs to be a planning meeting to take place before the plan can be formulated and agreed. That, she has given me an indication, takes place as soon as reasonably practicable, given the number of parties who need to attend that. Not just C but obviously her mother and R will need to attend, and from the Council point of view, the various Social Services department members. I am told that they will try to organise that particular meeting as soon as reasonably practicable. The problem is what we do until then. With the best will in the world, that might be a week or two away and we need to know what will happen from today, effectively. Unfortunately, I do not think my learned friend has been able to take instructions. My concern is that although we can send C to the Rs, because they are more than happy to have her, I do not want them to be prejudiced in terms of any foster care allowance that they would receive because they have done something which is not in the agreement with the local authority.
The second point is to give you a little bit more information as to the application on Tai Eryri. The Rs have been accepted by Tai Eryri. They will receive 30 per cent of the limit which is £102,000.
MR JUSTICE WILSON: Was I wrong about that in my judgment?
MR PATEL: No, it has changed. The information was changed. It is now £102,000 and they will receive 30 per cent of that, which is roughly £30,000, towards the purchase price. They have been told by Tai Eryri to find suitable property and they are actively searching for one as we speak. Once a suitable property has been found, it is likely that they will require more than the £30,000 that they are getting from Tai Eryri in order to purchase a property. They have been told by Tai Eryri that that is not the problem, that they should go and do that, and that the relevant application will be made at that time for a top-up from the National Assembly for Wales. My understanding is that at that time, when the relevant property has been found and an application has been made to the National Assembly for Wales, that the local authority's assistance and support will be required. My instructing solicitor will write to the local authority with exactly what I have just set out and that will be what we ask of the local authority in that regard at the relevant time.
MR JUSTICE WILSON: Good. I do hope that Mr and Mrs R from now onwards will be cooperating constructively with the local authority. I am not suggesting that they have not, but when you say they are looking round for other accommodation, I would hope that presumably through the social worker on the fostering side, who is their social worker as foster carers -- or was until deregistration and now will again become -- that they will be liaising with her, telling her of their plans and so forth.
MR PATEL: My Lord, it is hoped that there will be cooperation between both parties, which is why my instructing solicitor will be writing to the local authority today in order for this matter to be resolved on all fronts. So the local authority can be involved at all stages, no only with C but the Rs as well.
MR JUSTICE WILSON: Let us not kid ourselves. Whatever property Mr and Mrs R find will need to be converted to a greater or lesser extent.
MR PATEL: My Lord, that is correct. One of the suggestions we are to make today is that where it comes to the need for the services of a surveyor, we asked the local authority if they could provide one rather than provide an independent surveyor so that they would be involved at that stage.
MR JUSTICE WILSON: Good.
MR PATEL: It seems to us to be a sensible idea. Obviously, Miss Guirguis has not taken instructions. She has to discuss that matter with her client.
My Lord, the other matter I was going to raise is when the local authority plan to formulate another care plan. They have come back with the date of 27th August. My Lord, I think that is realistic and helpful because there is obviously a lot for them to do. We are content with that date. We obviously would not want that date to go any further back because C returns to school on 5th September, so it would be helpful if a plan could be in place and agreed before she returns to school on that particular date. That is a matter, I think, for my learned friend to give you more information on. I suspect it will be a question of having the planning meeting as soon as reasonably practicable and then to formulate a plan and to agree it with Mrs D and Mr and Mrs R.
MR JUSTICE WILSON: Mr Patel, I am sitting as a judge in the vacation here in Court 50 for the two weeks beginning 31st August, the Tuesday. I am desperately hoping that there will be no need for any urgent application but if there was, here I am.
MR PATEL: My Lord, I am grateful for that indication.
MR JUSTICE WILSON: You only have to contact my clerk, give proper notice to the local authority, and we will squeeze the case in.
MR PATEL: My Lord, I am desperately hoping also that we do not have to come back before you and I am sure my learned is as well, but I am grateful you give us that indication.
MR JUSTICE WILSON: Any other points from your perspective, Mr Patel?
MR PATEL: No, my Lord.
MR JUSTICE WILSON: Miss Guirguis, the fact that the child has finished school yesterday or today and that therefore the interim without prejudice arrangement expires today, the fact that something has to happen from now onwards, that is all really rather my fault for having spent a month before producing this judgment. If I had been able to produce it a fortnight ago, there would not have been this sort of crisis as to what is going to happen tomorrow.
MISS GUIRGUIS: My Lord, I do not think anyone can criticise it taking a month to deal with this volume of paperwork, particularly given that I am sure my Lord is extremely busy with other matters. What has happened in the intervening period, a plan was drawn up on the basis of a previous assessment of need which, of course, my Lord, you have made your decision in relation to that. That plan does not incorporate any involvement of Mr and Mrs R. Accordingly, it will have to be looked at again.
I spoke to my instructing solicitor yesterday but unfortunately a number of people that I needed to speak to were not available. The social worker was available and the Head of Service was available, but there is a limited extent to which plans can be drawn up, certainly yesterday. Today the social worker is meeting with my instructing solicitor to try and sort out an interim position until the planning meeting is held. Hopefully that will certainly deal with the weekend, in reality, and then, as soon as reasonably practicable, attempts will be made to hold a planning meeting for the interim position until 26th August when a further care plan can be drawn up.
MR JUSTICE WILSON: Good.
MISS GUIRGUIS: I apologise for the fact it is a very slow approach to getting to an interim plan, but unfortunately as the local authority is based on a different assessment of need, that assessment needs to be revisited.
MR JUSTICE WILSON: Miss Guirguis, it may be that a lawful care plan will come up with a proposal which, while making a proper allowance for the role of Mr and Mrs R in C's life, will not replicate precisely the previous arrangements. But really, as for the position now, it seems to me that the rational approach must be to carry on with some holiday arrangements as they were in previous holidays and previous summer holidays.
MISS GUIRGUIS: My Lord, I will certainly pass on those comments to the local authority. As I say, the decision is taking place today. I would anticipate, although I cannot say for certain, that the decision will be communicated today, and indeed I think it would have to be as the care plan was due to start tomorrow.
MR JUSTICE WILSON: Yes.
MISS GUIRGUIS: In relation to the letter in support of Tai Eryri, obviously that needs to be provided. We would be grateful for as much information to be provided as possible. I am very grateful to my learned friend for providing the information about the current provision from Tai Eryri. Certainly, I would anticipate that Social Services would need to be involved in looking at the potential properties, otherwise it may well be unsuitable. I personally see the sense of the local authority surveyor being involved but, of course, I need to take instructions.
MR JUSTICE WILSON: Thank you.
MISS GUIRGUIS: Can I assist further?
MR JUSTICE WILSON: I do not think you can. Do you have any application to make, Miss Guirguis?
MISS GUIRGUIS: My Lord, no.
MR JUSTICE WILSON: Good. That completes matters. I will give this order to Mr Patel as he is kindly going to make one or two alterations to it. Thank you both very much for your help.