England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		17th August 2004

Tuesday, 17th August 2004
1. MR JUSTICE CRANE: This is a claim for judicial review on behalf of Stephen Alloway, a young man of 19 with disabilities. He is profoundly autistic. He has severe learning difficulties and he suffers from petit mal epilepsy. Until recently Stephen was placed by the defendant, the London Borough of Bromley, at Purbeck View School in Dorset, a boarding establishment operated by the Hesley Group. It is accepted by all concerned that now his time at Purbeck has come to an end a placement is needed for him on a 52 week basis, a placement which is suitable for him.
2. His parents wish him to go to Hesley Village & College in Yorkshire, an establishment operated also by the Hesley Group. The defendant does not agree. The defendant authority say that Stephen should go to Robinia Care at their premises at Horndean, and at least at one stage were saying he could go to the Solent Residential Homes at Lee on Solent.
3. Although there is no dispute that the defendant authority should provide for Stephen's care at a suitable establishment, it must be borne in mind that the purpose of these proceedings is to review the legality of the defendants decision-making. It is not for the court to reach a decision of its own about what is best for Stephen. In these circumstances it is relevant to have in mind the legal framework, although there is little dispute in this case about the law.
4. Section 47(1) of the National Health Service and Community Care Act 1990 reads as follows:

"Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority -

(a) shall carry out an assessment of his needs for those services; and

(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."

5. I note in passing that subsections (5) and (6) provide in certain circumstances for a temporary placement.
6. In subsection (8) "community care services" is defined as having the same meaning as in section 46, if one refers to section 46(3) "community care services" means services which a local authority may provide or arrange to be provided under certain provisions.
7. The relevant provision here is in Part III of the National Assistance Act 1948. Section 21(1) as amended reads as follows:

"[Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing] -

(a) residential accommodation for persons [aged eighteen or over] who by reason of age, [illness, disability] or any other circumstances are in need of care and attention which is not otherwise available to them..."

The remainder of Section 21(1) is not relevant.

8. Section 21(2) reads:

"In [making any such arrangements] a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."

9. Section 21 goes on to provide for local authorities to provide the relevant accommodation. Section 26 permits the provision of accommodation in premises maintained by voluntary organisations.
10. An element of choice by the person to be accommodated is recognised by the National Assistance Act 1948 (Choice of Accommodation) Directions 1992. In this case the parents of Stephen have expressed a clear preference to which I shall refer in a moment. But assuming, as I do, that the preference can be expressed by the parents, the accommodation still needs to be, by virtue of paragraph 3 of the Directions, suitable. Section 7(1) of the Local Authority Social Services Act 1970 provides as follows:

"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."

11. I have been referred to two paragraphs of what is described as the Laming letter, dated 14th December 1992, and conveniently quoted in paragraphs 32 and 33 of the judgment of Leveson J in R on the application of S (by her mother and next friend Sandra Branch) v Leicestershire County Council [2004] EWHC 533 (Admin). However, as I have indicated, the legal duty of the defendant to provide for the care of Stephen is not in dispute.
12. I have been referred to certain authorities relating to the entitlement of the local authority to take into account, in deciding what provision should be made for certain categories of people, their resources.
13. The first is R v Gloucestershire County Council and Another, ex parte Barry [1997] AC 584. In that case the House of Lords was considering section 2(1) of the Chronically Sick and Disabled Persons Act 1970, and the House of Lords reached the conclusion that in assessing an applicant's need for a service, the degree of that need, and the necessity to make arrangements to meet it, a local authority had to balance the severity of the applicant's disabling condition against the cost of those arrangements and the availability of resources which might accordingly be a proper consideration.
14. However, in a subsequent case, R v East Sussex County Council, ex parte Tandy [1998] AC 714, the House of Lords, considering section 298(1) of the Education Act 1993, distinguished the case of Barry on the basis that in section 298 a consideration of what was "suitable education" did not admit of any discretion, and that therefore the resources of the relevant authority could not be taken into account in deciding what was "suitable education".
15. The present case turns on section 47 of the 1990 Act and section 21 of the 1948 Act. Lord Lloyd, in a dissenting opinion in Barry at page 601, referred to section 47. However, if the defendant were ultimately relying on the lack of resources it would, in my view, be necessary to examine, in much greater detail than has been possible or necessary in this case, the nature of the powers and duties of the local authority under sections 47 and 21. Those powers and duties have not been explored in argument in order to enable a decision to be made, if it were necessary, whether the conclusion in Barry or the conclusion in Tandy applied to the present circumstances.
16. It is to be noted that Lord Browne-Wilkinson, in Tandy, at page 747, said this:

"For these reasons as a matter of pure construction I can see no reason to treat the resources of the L.E.A. as a relevant factor in determining what constitutes 'suitable education'. But I should make it clear, as did Keene J and Staughton LJ in their judgments, that if there is more than one way of providing 'suitable education', the L.E.A. would be entitled to have regard to its resources in choosing between different ways of providing suitable education."

17. As I understand the position of the defendant in the present case, they are not pleading a lack of resources in order to escape from any duty to make suitable provision for Stephen. Their case involves saying that they are entitled to have regard to resources, if necessary, in choosing between different ways of providing suitably for him. But they say that the provision sought by the parents of Stephen is not, in any event, suitable. They are not relying on a lack of resources. They are simply making the kind of judgment, at most, which Lord Browne-Wilkinson was referring to.
18. I turn to the history. Stephen was born on 17th April 1985. He was the subject of a statement of special educational needs. He was placed first at the junior section, and then in the senior part, of Purbeck View School. That school cared for him for 38 weeks each year. He went home during the holidays. But by 2002 it was clear that his parents were no longer able to cope with Stephen throughout the holidays. As I understand it, his father was not at home during the week on a regular basis,and the caring therefore mainly fell on Stephen's mother. She had health problems. At the same time, as Stephen became older he became inevitably stronger and more difficult to control should any restraint be required. In the light of that, respite care was arranged at 44 Bromley Road on 3 days per week during his holidays, a placement, I should say, which seems to have been a successful one.
19. In May 2002, Mark Smith, of the defendant authority, commenced an assessment, an assessment designed to comply with section 47. Mr Smith was a member of the Community Adolescent Transition Team within the local authority. His assessment was ultimately completed in March 2003. Prior to the completion of the assessment, the Adult Panel of the local authority had already agreed, in principle, that a 52 week placement was required. That remains common ground.
20. I go next to the assessment of Mark Smith. It dealt, in fact, both with where Mr Smith was recommending that Stephen be placed, and also, and indeed essentially, assessment of Stephen's needs. It is not necessary for me to quote the whole of that lengthy assessment, but I go to certain key passages.
21. Under a heading "Behavioural and Emotional" the assessment says this:

"There are significant difficulties in managing Stephen's behaviour, which are a result of Stephen's autism. Stephen has inflexibility of thought, which means accepting change for him is difficult. Due to Stephen's communication difficulties when Stephen finds a situation difficult to deal with he will choose to opt out or become confrontational due to his anxieties and/or reluctance to participate in an activity. Please see summative report (Appendix 7) from key professionals in his school, which highlights behavioural issues in more detail."

22. Under "Context and Frequency" the assessment said:

"Over recent years Stephen has been displaying more confrontational and aggressive behaviour, on a daily basis. Professionals and his family believe he has become more aware of his strength and has learnt to assert himself in order to gain greater control over his environment. Stephen is often demanding, needing a routine, which is in place at school, with staff recognising triggers for challenging behaviour, which decreases Stephen's maladaptive behaviour.

His behaviour is often dependent on his mood. Key issues, which trigger behaviour that challenges, are the following:

• Having to wait for favoured activities.

• Staff trying to motivate him in activities, which he judges to be being boring.

• Not being provided or having to wait something he enjoys, such as tea.

• At times his behaviour is unpredictable, with no obvious triggers, which makes Stephen difficult to manage, especially when accessing community activities."

23. Under the heading "Any Habitual Routines? (that either help or hinder function)" the assessment said:

"Stephen benefits from having a structure to his day. He has a planned routine to his day when at school, which he appears to gain security from. Despite him not having awareness of time, when an activity (especially one which he enjoys) is changed Stephen can become very annoyed. He is someone who likes and benefits from having a clear idea of what is happening in his day. For example if he has to wait for a long time, it is best to explain to Stephen prior to the activity if possible. Staff are aware they need to be firm, especially in cases where Stephen needs to accept issues beyond people's control.

"Stephen has obsessions, which do hinder his function. If left to his own devices Stephen would rewind the same video continually, spending little time actually watching it, therefore it is very important he [has] a range of activities for Stephen to be engaged in to prevent him regularly reverting to this obsession."

24. In relation to "Communication" the assessment said this:

"Stephen will usually use single words to make his needs known, however, if encouraged, Stephen will repeat sentences such as "I want tea". Stephen is not motivated to speak more than he has to. If asked a question he will often repeat a single word previously heard.

...

Stephen will often mumble his words, which makes it difficult for people to understand him, even those that know him well. It is especially difficult when Stephen becomes agitated."

25. In the "Conclusion" the assessment said this:

"Stephen requires a placement, which is able to recognise and work proactively with Stephen's needs in relation to his autism and severe learning disabilities whilst meeting his health needs. Staff need to be sufficiently trained in appropriate behavioural approaches, autistic specific training and have the skills to train Stephen to develop in every day living skills and participate in community activities of his choice. He will need a home which is secure as Stephen can be unpredictable and can run off if he sees something of interest to him with him having little awareness of danger. Due to these issues Stephen needs 1:1 support out in the community and needs this level of support to develop in relevant daily living skills. He requires a significant amount of motivation to engage in some activities otherwise he can be very lethargic. An appropriate age mix of similarly aged people would be beneficial as well as a need in acknowledging Stephen's sensitivity to noise."

The assessment went on to repeat that a 52 week placement was needed.

26. Those are, I think, sufficient references to the part of the assessment dealing directly with Stephen's needs. That is what is required by section 47. But the assessment document in fact went on to assess a resource which was regarded by Mark Smith as appropriate. That resource was Hesley Village & College. The assessment noted that the college had completed an assessment of Stephen and had offered him a place in May 2003. It went on:

"Hesley Village is a campus based setting, with a number of facilities on site. There is a mixture of accommodation, including a large 18-bedded hall with individual bedrooms, as well as one, two and three bedroomed houses. I will be recommending that Stephen be based in one of the smaller homes."

27. The assessment considered other possible options including the option of Robinia about which this was said:

"Robinia/Elifar have a number of community homes, which have availability, however, are awaiting the authority's request to complete an assessment. Due to concerns regarding their suitability (as all the homes are community based and urban/suburban areas) an assessment has not yet been requested."

A number of other alternatives were referred to.

28. Under the heading "Reasons for Choosing the Proposed Resource" Mark Smith wrote this:

"A key issue in recommending this option [that is Hesley] was regarding the on-site facilities, which can be offered, as opposed to community settings, which do not offer these resources. I have been involved in considerable discussion surrounding Stephen's ability to cope in a community based setting with school, respite carers, his parents and future providers."

29. A number of highlighted key benefits were set out for a placement at Hesley Village. They can be summarised as follows: a very high staffing ratio; a campus setting; access to the community could be a problem but was available; staff at Hesley Village have significant training in autism spectrum disorders; it provided in-house psychology support and speech and language therapy, which are crucial to Stephen's development.
30. A cost breakdown was included and Hesley Village was said to cost £3,725 per week, which included one-to-one support for waking hours. The assessment recommended that the children's panel be approached, following a decision from the adult panel, with a request for funding up to 18 and a half years of age, and said that a request for conditioning care assessment had been sent to Bromley Primary Care Trust with a response being awaited.
31. Thus, the assessment by Mark Smith recommended early placement at Hesley Village from May of 2003. Although it appears to have been impossible to convene the adult panel, there was a meeting of officers of the defendant authority, and it is clear that a decision was taken, at the very least, not to sent him to Hesley Village at that stage. He was to continue at Purbeck, with respite care. The decision not to send him to Hesley Village at that stage is now a matter of history. It is not directly attacked in these proceedings, and is not characterised by counsel on behalf of Stephen as unlawful. But clearly further consideration was going to be needed about what would happen in August 2004 beyond which Stephen could not stay at Purbeck.
32. Equally clearly, in fairness to the council, consideration was in fact given to what should happen, including a search for placements. I shall return later to the question of their attitude to sending him to Hesley Village. But, for example, there were visits to possible other placements in October and November 2003 by officers of the defendant council and Robinia was, at about that time, identified as a possible placement.
33. It is right to note that following the decision of the defendants not to send him straightaway to Hesley Village, there were complaints by Stephen's parents dealt with by an independent investigator, and later by the local authority ombudsman. It appears that some energy on both sides was expended in dealing with those complaints. But with those complaints I am not directly concerned.
34. I move on to March 2004 when, on 9th March, the annual review was held in relation to Stephen, the last annual review, as he was about to become 19. Those contributing to the review are listed in the minutes. They included Stephen's parents, a number of officers of the defendant authority, and specialists such as Debbie Onslow, his speech and language therapist, and also an assistant psychologist.
35. It is clear from those minutes that the review revealed certain changes in Stephen's behaviour and developments, recorded under the heading "Behaviour". On the other hand, there were certain developments recorded in the report of his speech and language therapist. It is particularly encouraging to note that Stephen was, within his limitations, making progress in relation to speech and language, progress which had not been foreshadowed in the assessment.
36. Plainly, as a matter of common sense, anybody planning Stephen's future had to take into account up-to-date information: on the one hand, changes in his behaviour which might lead to difficulty, and on the other hand, his ability to develop, which plainly required attention and encouragement. The parents' comments, at the end of the review were as follows:

"Mr and Mrs Alloway feel the improvement in Stephen's behaviour is attributed to small group settings, both in Class and Care. They expressed pleasure about the progress made over this period. They feel things need to be very carefully balanced for Stephen as the situation can quickly deteriorate.

"The family have visited Solent Care and found the accommodation excellent but have severe concerns about its appropriateness for Stephen. There currently appears to be a conflict between Mr and Mrs Alloway's expectations and that of the Authority."

37. Under the heading "Authority's Comments" is set out the following:

"Troy O'Neil [the group manager of the Adult Learning Disability Team] explained the need for a range of providers to provide assessments from which the Authority creates a placement profile of care.

"He was unclear about what the next stage would be, or who would be assessing Stephen."

38. If one bears in mind that this was 9th March 2004, that his current placement lasted only until the end of July of this year, and that it had been apparent to the authority for some time that consideration of what was to happen to Stephen after July would need to be properly considered, I have to say that those comments on behalf of the authority are wholly mystifying.
39. On 22nd June the claim form seeking permission to apply for judicial review was filed. The parents, acting on behalf of Stephen, contended in the statement of grounds that the defendant was acting unlawfully, or had erred in law, by refusing to place Stephen at Hesley Village & College on the basis of cost alone. In the absence of other suitable placement, the local authority, it was said, was unlawfully fettering its discretion.
40. The grounds went on to contend that: the council were in breach of their statutory duty under section 47(1); that they had delayed inordinately and unreasonably in not securing a post-19 placement for Stephen; that they had unlawfully persisted in arranging assessments for purported placement providers who did not or could not meet the criteria of needs described in the assessment of Mark Smith; and, in all the circumstances, were acting unreasonably or irrationally in refusing to place Stephen at Hesley Village & College.
41. There was also, I have to say, a complaint that they had failed to make a referral to the Learning and Skills Council for the funding of a place at Hesley Village & College. That is a reference to the fact that Hesley Village & College is not approved by the Learning and Skills Council. But, I say in passing, that it does not seem to me that it is a matter for the defendant to take up the cudgels on behalf of Hesley Village & College in relation to the decisions of the Learning and Skills Council.
42. Following the filing of the application, on 30th June Stanley Burnton J considered an application for urgent consideration. He directed the defendant to file its acknowledgment service by 9th July, and that the court should consider the application as soon as possible thereafter. There was a request by the claimant for some delay, but on 12th July the defendant did in fact file its acknowledgment of service.
43. On 21st July the claimant filed an amendment adding to the grounds in the following terms:

"9. The Local Authority's offer dated 5 July 2004 of residential placements with Solent Residential Homes or Robinia Homes is unlawful in that it fails to provide the Claimant with services meeting his assessed needs: these proposed care packages do not provide the necessary structured environment, or any educational component."

"10. The Local Authority has failed to take into account the Claimant's challenging behaviours, and his assessed need for 'specialist support with a high level of staffing'."

44. The reference to the 5th July letter is a reference to a letter of that date from the local authority signed by Ross Parkin to Stephen's parents. It is an important letter and it reads as follows:

"I am writing to confirm that the local Authority has identified two suitable 52-week placements for Stephen when he finishes school in August.

"You are aware that the Local authority has approached Robinia Care (Durlands Road, Horndean) and Solent Residential homes (Montserrat Road, Lee-on-the-Solent), among other providers, with a view to providing a placement for Stephen.

"It is the opinion of the Local Authority that both placements can fully meet Stephen's needs. Of the two, the Authority's preference is for the Robinia Care placement. However, as there are two suitable placements, the Authority would invite you to express your preference as to which provider you would like to see care for your son.

"I am aware that you have already visited the placement called 'Solent', and I had sent you information on Robinia Care in my letter to you dated 10th May 2004. In the case of Solent Homes your independent social worker Mr Clive Yeadon has also visited and reported back to you. I believe that he has also very recently visited the Robinia placement and by now you may have received his observations.

"You are invited to view these establishments if you so wish, as part of the decision-making process. In order to facilitate the transition process I would be grateful if your decision or views could be relayed to Karen Lingard, Senior Care Manager...

"Should you have no clear preference then the Local Authority will place Stephen at Robinia Care".

Then details are given of the managers at the two placements.

45. The Hesley option, I should say, is now in fact open until 31st August. Following 5th July, and the filing of the amendment on 28th July, Collins J refused an application for an interim order. On 3rd August Henriques J granted permission and directed that the matter should be listed before 31st August.
46. Matters have in fact apparently moved on even since then because, on 27th July, the defendant in a letter to the court said this at paragraph 6:

"As offers have been received by the Authority one with Robinia Care has been accepted on Stephen's behalf and is available from the 6th August. Stephen finishes school on the 3rd August in the meantime respite care is available at Bromley Road. Once there Stephen's transition will be facilitated to take up the place at Robinia."

47. I turn to consider the council's attitude towards Hesley Village & College. At the forefront of the claimant's case is the submission that the defendant ruled out Hesley Village & College, either on costs grounds alone, or on a combination of costs grounds and the view that the facilities were more than Stephen required. The defendant denies that costs considerations have been uppermost, although they acknowledge that the costs considerations have been taken into account.
48. I have been referred to certain correspondence during the earlier part of this year. On 28th January 2004 Margaret Howard, the Assistant Director - Adults, of the defendant authority, wrote to the parents' solicitors saying inter alia this:

"You will know that Stephen does not have to leave school until July 2004. You will also know that the Department has not accepted that Stephen should be placed at Hesley College. The care management staff continue to work with Stephen and Mr & Mrs Alloway to locate an alternative placement for Stephen when he leaves school that both meets his needs and is cost effective."

49. In a further letter from Margaret Howard to the claimant's solicitors, dated 9th February, a number of questions asked by the solicitors were dealt with. But in the last paragraph of the letter Margaret Howard said this:

"I understand that Mr & Mrs Alloway are unhappy that the borough will not fund a placement for Stephen at Hesley and that they believe this is to be the best option for him. I do need to reiterate here, however, that the Borough will not fund Hesley at £3,275 per week and that we remain committed to finding him a placement that can meet his assessed needs and which is also cost effective."

50. In a letter from the senior lawyer of the defendant to the claimant's solicitors dated 28th May 2004, the writer said inter alia this:

"... my Council will not agree to your request that Stephen will be placed at Hesley Village College as at the 31st May, and in return would request that your Clients co-operate fully in the assessment process."

51. On the evidence it is, in my view, clear, particularly in relation to the letter dated 9th February, that the defendant had ruled out consideration of Hesley and the defendants were not considering Hesley as a possible option. I note that the defendants were not saying that they lacked resources, they were saying that it was a placement that was unnecessarily expensive for Stephen's needs.
52. That assertion has continued in the documentation annexed to the acknowledgment of service, and the summary of the defendants grounds for contesting the claim. There is a document described as a placement assessment by Bill Wright, Senior Care Manager of the Assessment and Commissioning Team of Bromley Social Services. I should say that it is clear that this was not intended to be an overall assessment of alternative placements. It was plainly intended as a view of the appropriateness of Hesley Village & College for Stephen.
53. Mr Wright pointed out that another service user had been placed at Hesley College who was regarded as having severe challenging behaviour, in other words, worse behaviour than Stephen's.
54. A number of criticisms are made of the placement assessment of Mr Wright on behalf of the claimant. It is said that in describing the other service user as having "severe challenging behaviour", that was downgrading the challenges presented by Stephen's behaviour, though it is right to say that the term "severe" was never used of Stephen's challenging behaviour until the latest report of Mr Yeadon, to which I shall return. But it is plainly to some extent a matter of degree.
55. What is, in my view, of greater concern, is that Mr Wright appears to have been mistaken in relation to the cost of Hesley Village. The paragraph in his assessment dealing with that reads:

"I also believe that the weekly fee of £3,725.00 that Hesley Village are asking for is extremely high for Mr Alloway's assessed level of need, and would suggest a forensic level of service. I understand that Hesley Village use that figure as their base-line fee, with anything extra charged for in addition. If that were the case then I would expect the service users accessing the placement to be of the most severely challenging nature."

56. But it appears that Hesley Village's quotation of a weekly fee of £3,725 is in fact, as counsel for the claimant submits, an all in figure, and indeed, some things which other placements do not include in their fees, are in fact included in Hesley Village's fees.
57. Nothing seems to have come of the possibility that the relevant health care trust would contribute to the cost of sending Stephen to a facility such as Hesley. Arguably, at least, speech therapy would be something to which the health care trust might be expected to contribute. Plainly it is not possible for me to give a definite ruling in relation to that, I have heard no detailed argument about it, but plainly it was considered and plainly it happens in relation to some individuals.
58. I acknowledge, however, that there are some arguments against Hesley Village. It is not accredited, as I have indicated, by the Learning and Skills Council. Hence there would be no monitoring by that council of the educational aspect of Stephen's care, and no possibility, it seems, of assistance in that respect with funding. But, as I have said, it is unrealistic to expect the defendants themselves to challenge that.
59. It is worth noting what educational provision means in the present context. The main component, as I think everyone agrees, is detailed everyday supervision, encouragement and guidance in everyday activity, in order to enable Stephen to develop and control his behaviour in a better way.
60. There is also the specific aspect of the speech therapy. What is abundantly clear and not in dispute, is that Stephen, in several directions, including his speech, continues to develop and has the capacity to develop further. Quite plainly it would be a tragedy if he was merely managed and controlled, because there would be, and again I think there is no dispute about this, a danger that he would regress.
61. In this respect I note at paragraph 21 of the second and latest report of Mr Clive Yeadon, a consultant in social policy and social welfare, the independent social work report already referred to. At paragraph 21 the way he describes one of the key issues from Stephen's assessment under the heading "Teaching and Supporting Socially Competent Behaviour" is as follows:

"This remains very relevant for Stephen, and will continue to do so over the long term. The implication is that a learning environment is essential. Socially competent behaviour for Stephen remains at a very basic level, in so far as he remains extremely vulnerable to changes in the routines, and activities in which he can be comfortable. The imposition of changes for which there has been neither preparation, or alternatively where there is no ability to understand Stephen's potential to regress would be, in my opinion, nothing short of culpable and disastrous. Stephen's rigidity of thought means that, as in relation to personal support generally, this level of teaching must be professionally informed, monitored, and developed on a continuum at all times."

Plainly that view is one that the local authority need to bear in mind.

62. I infer from the letter dated 27th July 2004 that a decision has been made in favour of Robinia rather than Solent. Even if that is incorrect, and the offer of 5th July is still open, the defendant is offering either Robinia or Solent.
63. I pause to consider whether a further assessment, beyond what Mark Smith assessed, was required. What counsel for the claimant submitted was that if a further assessment was not carried out, then, at the very least, up-to-date information about him needed to be considered before a decision was made.
64. In my judgment it was not necessary for there to be a further statutory assessment, but the defendant was entitled to take into account developments and indeed was under a duty to do so if its decision was to be a rational one. They did note, for example, the report of Claire Callaghan which is provided in the annex, and they did note the progress in relation to language that Stephen had made. They had a further report from the speech therapist. Although it was open to them to reassess in the full sense if they thought fit it was not a requirement, in my view, and although in making their decision they had to have regard to the assessment, those words do not require them to have regard only to the assessment. They can, and indeed should, consider other information if it is relevant.
65. On the merits of the placement mentioned to the court, counsel for the defendant submitted that, on all the evidence, Hesley Village's facilities were not needed. He based that on a reading of the assessment of Mr Smith, and the placement assessment of Mr Wright, and indeed the other information in the papers.
66. Submissions on behalf of the claimant are that Robinia is not suitable, and that Solent is even less suitable. In relation to Robinia, for example, it is pointed out that this particular branch of their facilities is either not yet open or only just opening, and that such matters as Stephen's education are not clearly provided for.
67. I have read, as I have indicated, the two reports of Mr Yeadon.
68. While listening with interest to the arguments, I do not consider that, in the end, they are matters for the court to reach a judgment about. If is not for this court to decide where Stephen should go.
69. I have mentioned criticisms of the local authority's decision-making in relation to the costs apparently to be incurred at Hesley. There are also criticisms of their calculation of the costs at Robinia and Solent, Mr Alloway's latest statement contains some detailed calculations in relation to those costs. It does not seem to me necessary to reach final conclusions about the relative costs and indeed I do not think I have the material to enable me to do so. But what is clear is that there is nowhere in the papers, certainly in the defendant's papers before the court, any clear comparison, like with like, of the costs.
70. One of the difficulties is that, no doubt partly because of the ultimate urgency of the matter, there is no evidence of how the decision that Robinia should be chosen was taken, with a summary of the reasons for that decision. There is, of course, justification of the defendant's case contained in the acknowledgment of service and counsel's helpful skeleton argument, but I repeat, there is no evidence before the court, of how the decision was taken and the court is left to infer matters relating to the rationality or otherwise of the decision.
71. In my judgment, the defendant's decision-making was flawed. The 2003 decision not to send Stephen to Hesley Village at that stage is not, as I have indicated, flawed. But, by at least February 2004, it is clear, in my view, that Hesley had been ruled out as too expensive and not justified, even before any viable alternatives had been identified. Moreover, it had been ruled out as too expensive on grounds that were clearly, at least in part, wrong. I refer to the apparent error, repeated by Mr Wright in his placement assessment, about the possibility of additions to that sum, and also the lack, apparently, of any exploration of assistance from the health care trust for assistance with funding.
72. It is very probable that Hesley, even on an accurate calculation, is the most expensive, perhaps significantly the most expensive, but the evidence is that it does at least cater for Stephen's level of problems. Whether it provides more than he needs is, of course, another matter.
73. In relation to Solent, on the assumption that that placement is still a possibility, there appears to be no plan, certainly no plan in the evidence, for Stephen's care there. There is, in the annex to the acknowledgment of service, a breakdown of the costs in relation to Solent, but although quite plainly they have assessed Stephen and they think that they can manage him, the court really has no basis for forming any view, and nor, on what is before the court, would the defendant have any ability to form a view of the suitability of Solent.
74. In relation to Robinia, they have plainly carried out an assessment. That is included in the annex to the acknowledgment of service. I emphasise that I am not reaching any conclusion that Robinia, or indeed Solent, should be ruled out of consideration, but there is no evidence before the court of an informed decision based on a fair comparison of Robinia (or indeed Solent) and Hesley, including an accurate comparison of costs.
75. In relation to Hesley, my view as to the early ruling out of Hesley, does make it correct to say that the council fettered their discretion.
76. Although a claim that the decision reached by the defendant should be quashed is not included in the remedies listed in the claim form, I bear in mind that at the time the claim form was filed, the decision of 5th July, or if a decision was taken, evidence by the letter of 27th July, a later decision, was not available. The claim form certainly seeks declarations, and it also invites me to make an order compelling the defendant to accept a place for Stephen at Hesley Village.
77. There is clearly some urgency, and I point out that the urgency results from the lateness of the decisions by the authority.
78. In my view it would be appropriate to quash the decision evidenced by the letter of 27th July (and, if necessary, the decision of 5th July to offer Robinia and/or Solent as alternatives). But, in my view, it would be inappropriate to make a positive order ordering the council to accept the placement at Hesley.
79. It is not inevitable that an informed decision, taking into account all relevant factors, including a balanced and informed view of the costs, would necessarily be to send Stephen to Hesley Village. If I were to make a positive order, the court would be substituting its decision for that of the defendant. Plainly a new decision is required with great urgency.
80. I say in parenthesis that if any of the facilities mentioned can be urged to keep open the offers made, then that would certainly be desirable and the court's view about that can be conveyed to them.
81. I note in passing that it would be open to the defendant, if it so wished, to decide that a new assessment was required in all the circumstances, and that it needed to act on a temporary basis under section 47, subsection (5) and subsection (6). A temporary placement could be made in those circumstances. But that, is one of the matters that I simply bring to the local authority's attention.
82. It seems to me, and it is difficult to reach a conclusion about the best way ahead, so far as remedy is concerned, that the only remedy I need to grant is the quashing of the two decisions, if that is what they are, which I have mentioned. It does not seem to me, at the moment, that any declaration is required. In my view the judgment will speak for itself and, subject to counsel's submissions, I would propose merely to make an order quashing the decisions made so far and to leave the judgment to speak rather than to grant declarations. The other remedies sought I refuse.
83. MISS HEWSON: My Lord, in the light of your Lordship's judgment I have just sought, quickly, instructions as to whether it might be appropriate, in view of what your Lordship has said, to make a formal direction to the council as to when its decision should be made, even it is only as soon as possible, because that would at least indicate to the council what it should proceed to do now. There may be practical difficulties, and my friend may need to inform the court as to the likely timetable, because for all I know the people who are needed to make this decision may be on holiday or something.
84. MR JUSTICE CRANE: That is the difficulty. I think I have made it quite clear that I regard the matter as urgent, and certainly, unless there can be any extension of the offer or offers, then time is extremely short. But for the kind of reasons you are just putting forward, it seems to me that to provide a precise timetable is not, probably, going to be possible. As you say, first of all, people are going to be on holiday, and, secondly, without knowing how the council works, as it were, I simply do not know how quickly things can be done, and whether, for example, they would want to do something temporarily. I simply canvas that as a possibility so that it can be borne in mind, but it is a matter for the council. But I have indicated that the matter is extremely urgent.
85. MISS HEWSON: I wonder if it might be possible for my friend and I just to have a moment to see if some agreement could be reached, because clearly if it could that would assist everyone in agreeing the way forward.
86. MR JUSTICE CRANE: Yes, well, let us see.
87. MR DARBY: My Lord, I am attempting to obtain some instructions.
88. MR JUSTICE CRANE: You were perhaps obtaining them while Miss Hewson was addressing me. She was suggesting that you and she might have a word, which I am quite happy that you do. It is really on the question of whether any timetable could be laid down by the court for reaching new decisions. I can see considerable difficulties in that, I must say.
89. MR DARBY: My Lord, I was just having a whispered list of the members of the department who are on holiday, or about to go on holiday next week.
90. MR JUSTICE CRANE: Yes, well I can imagine. Well, I think it might be helpful if you had a moment or two to take instructions, and perhaps then have a word with Miss Hewson. It may or may not take matters forward. As I say, at the moment, subject to any submissions that are made, I would propose to simply make orders quashing in the way I have indicated, and otherwise leave my judgment to speak for itself. Plainly that leaves the council needing to make a new decision of some kind.
91. MR DARBY: Yes.
92. MR JUSTICE CRANE: Whether it is possible to put a timetable on that I am rather hesitant, and I suspect all one can say is that it is extremely urgent. But I will just rise for a minute or two and see if the matter can be taken any further.
93. MR DARBY: Thank you, my Lord.
(A Short Adjournment)
94. MR DARBY: My Lord, may I indicate what the local authority is currently minded to do. I have spoken to a senior member of their Social Services Department. I should also say that Miss Gray who sits behind me today is not, as your Lordship might have thought, of the Borough's solicitors' department. She is the local authority's care manager, and therefore is in a good position to make the necessary decision, or at least give indications which are more likely to be accurate than not.
95. In view of the difficulties which have been caused by this case, and the length of time that has now lapsed since the last section 47 assessment, the authority's view is that it would prefer to place Stephen in temporary accommodation and then carry out a fresh section 47 assessment. If one allows him, say, four weeks to settle into the temporary accommodation, which I hasten to say will not be 44 Bromley Road, because that is purely respite care, it would only be fair to allow him four weeks to settle in before an assessment were to be made.
96. The current timetable is to have that assessment carried out with a view to presenting it for a decision by the Adult Panel on 14th October this year.
97. My Lord, given what is involved in this and the need to allow Stephen time to settle in, I would submit that that is not an unreasonable timetable to adopt. I should also make it clear, because I know that Mr and Mrs Alloway will be concerned about it, that the assessment will not be carried out by somebody who has had any dealing with Stephen before. The current thinking is that Miss Gray herself will do the necessary assessment. She has not been involved in the case before and indeed has only worked for Bromley for the last three weeks or so.
98. So, my Lord, that is the position, and unless there are any other unexpected developments, or something goes seriously wrong, a new decision will be available on 14th October or the day after.
99. MR JUSTICE CRANE: Yes. Well, what do you want to say?
100. MISS HEWSON: Well, my Lord, I have two concerns about that. One of which is the indication that your Lordship gave in your Lordship's judgment, which is that a reassessment was not necessary and secondly --
101. MR JUSTICE CRANE: Well, no, I did not say that. I said that the council were entitled to reach the view that an assessment was not necessary. But, in my final conclusions, I indicated that one option would be for the council now to decide, and it would be a matter for them, to reassess and to accommodate temporarily. In other words, I was not of the view that earlier, in not reassessing, they were acting unlawfully. But time has moved on, the court has criticised the decision-making, new matters have come to light, and I specifically say, I think towards the end of my judgment --
102. MISS HEWSON: Yes, I am just rereading the note, my Lord.
103. MR JUSTICE CRANE: -- that considering that would be a matter for them. Now I had not reached a considered view about that, but I just pointed out that that was a possibility.
104. MISS HEWSON: Yes. Our concern, of course, is that because the Hesley placement is only open to the end of this month --
105. MR JUSTICE CRANE: Well, that is of great anxiety, I agree.
106. MISS HEWSON: This is another factor which is effectively going to predecide the issue, because the local authority will then turn round and say, "Well, we do not have to consider it because it is not an option." The local authority has not said in terms what it intends to do to try and maintain the status quo, which is the maintenance of the place at Hesley. We are very concerned about that, my Lord, because this matter has been dragging on for a very, very long time. It cannot be right that the council, as a result of its own legally flawed decision, should create a situation which, in effect, deprives the claimant of the one placement which we say is the most appropriate.
107. MR DARBY: My Lord, all that my --
108. MR JUSTICE CRANE: Just a moment Mr Darby, I will come back to you in a moment. The difficulty I think is this, Miss Hewson. I gave, as you will expect, some thought to the questioning of whether I could properly say, in view of the flawed decision, that as to ruling out Hesley the court could then simply say, "Right, you must rule in Hesley and go for that," as it were, to put it colloquially. But I think the court is in some difficulty. I do not think it is appropriate for me to decide which is best, particularly since, in a number of aspects, the evidence is not entirely clear, particularly on cost, for example. And while I accepted and said that the local authority have, in effect, created the difficulty, unless there is anything you can suggest that the court can do, and certainly in your submissions earlier I do not think suggested it - and I am not blaming you for that, it is a very difficult situation - I do not really see what more the court can do.
109. MISS HEWSON: Well, my Lord, the only other option is a temporary placement at Hesley pending the reassessment.
110. MR JUSTICE CRANE: Well, without expressing a view, that is obviously a possibility. Of course, one does not know whether Hesley would accept that anyway. But I will -- Mr Darby, what about that? I am not expressing a view about it, I am just asking.
111. MR DARBY: Well, my Lord, firstly, the indicated view I have had from the council is that they would not be willing to place Stephen at Hesley on a temporary basis. As I was about to say, I think the most I can say on behalf of the council is that they will certainly use their best endeavours, in conjunction with Mr and Mrs Alloway and those representing him, to keep the place at Hesley open. We do now have a target date to work to, so we are not asking Hesley to keep the place open indefinitely while some open-ended reassessment is taking place. It will be a request to Hesley, in effect, to hold the place until 15th October.
112. MR JUSTICE CRANE: It just occurs to me Miss Hewson, if Hesley would keep the placement open, that would plainly go some way to meeting the parents' concerns.
113. MISS HEWSON: My Lord, what we are concerned about is this: essentially, if Stephen is not provided with some form of properly structured input and support he is going to start regressing very quickly. Now he left school on the 6th, and the parents' concern is that unless he is within a properly skilled environment, where he is getting the proper behavioural programme, and the proper speech and language therapy and so on, he is going to start regressing very quickly.
114. So although the council has decided to adopt the course that it has, it may not necessarily be in his best interests, because we are now looking at a situation where a further two months are going to have to elapse without any prospect of any properly directed care being directed in the meantime. In particular, a programme which is going to maintain his current development and prevent this risk of regression which, as your Lordship rightly observed, would be a tragedy if it were allowed to occur.
115. What I am concerned about is that there does not seem to be any prospect of any expert involvement, which perhaps there should be, to advise both the parents and the council as to what should be done now to protect Stephen from the risk of regression.
116. I entirely accept that to a local authority two months may not seem a very long time, but it could be absolutely critical in terms of Stephen's own risk of regression, and the sooner that there is some expert involvement in planning his care by someone who is expert in the position of autistics, and who can give the council proper advice -- and I am not talking necessarily about a social worker, I am thinking about a medical expert who should be called on to advise both sides as to what could be done now to prevent him deteriorating.
117. MR JUSTICE CRANE: Well, I am not wholly convinced that, as it were, more advice is needed on an urgent basis. It seems to me there is a lot of information available to anyone carrying out a reassessment, and maybe more than has been placed before the court. Things like costs can be more accurately obtained, but that does not require advice. There are available to the council Mr Yeadon's reports. So I am not sure a great deal -- well, one can spend too long getting further advice, as it were, as opposed to gathering the threads together and reaching a decision. On this case it is suggested a further assessment.
118. Well, let us bring it to a point. In the light of Mr Darby's proposed course on behalf of the defendant, what are you asking the court to do?
119. MISS HEWSON: Our concern is, as I understand it --
120. MR JUSTICE CRANE: No, what are you asking the court to do? I follow your concern fully. I fully understand that.
121. MISS HEWSON: My friend has indicated to me that their preferred course is to immediately start a temporary placement at Robinia Care. I am very concerned about that, because Robinia does not have in place a proper programme, or a therapeutic programme, to care for Stephen at all. Our concern is that a situation is going to arise where defacto a placement is going to be decided upon.
122. MR JUSTICE CRANE: I see those worries. What about this possibility: plainly if there was going to be a temporary placement, whether Robinia or anywhere else, provided the placement at Hesley is kept open, that does not remove all the difficulties or all the possible problems for Stephen, but at least it removes some of them, at least it keeps options open. It seems to me that I would need to hesitate very long before ordering the council in the light of its decision about where the temporary placement should be, to substitute my own view. But I do follow your concerns that the matter is not pre-empted.
123. One possibility that occurs to me is this: if I gave liberty to apply today, and it would be liberty to apply -- well, not later than Friday, because I am only sitting for this week. By then it would be possible to ascertain what the possibilities of keeping options open were, and at least it would be open to you to apply, on short notice, for me to reconsider the question of whether I should make some urgent order. Plainly what you are asking for is an urgent order, if there is going to be temporary placement, that it be at Hesley.
124. MISS HEWSON: Indeed, well, my Lord that might be appropriate.
125. MR JUSTICE CRANE: I am not giving any promises. In other words, if the danger arose that matters would be pre-empted, then I am prepared, at least, to consider giving you the chance to come back to court for a temporary order and to reconsider that. I think I am right in saying, Mr Darby, you are in difficulties later in the week, are you?
126. MR DARBY: I am in difficulties on Thursday and Friday, my Lord.
127. MR JUSTICE CRANE: But somebody else could come if necessary?
128. MR DARBY: Yes.
129. MR JUSTICE CRANE: I suppose I could say tomorrow, but I suggest -- first of all I have a full list, and, secondly, I suspect it might be difficult to find an answer by then.
130. MR DARBY: My Lord, I think if it were listed again tomorrow, that we simply would not have the necessary information to make an informed decision.
131. MR JUSTICE CRANE: We would just be back in the same position. No, I think, Mr Darby -- obviously your absence is -- I am not blaming you, but it does not help because, obviously, it is convenient to have continuity. But I think there is sufficient concern for me to, subject to anything you want to say, to give that degree of liberty to apply. Do you oppose that?
132. MR DARBY: My Lord, may I simply express this anxiety. It then becomes almost a sub-judicial review of a sub-decision about where the local authority places Stephen under the provisions of section 21(5), because the instant a decision is made it becomes a decision which must be capable of review. But we are getting into rather difficulty territory.
133. MR JUSTICE CRANE: I can see that, and that is something to be considered plainly, and I do not pretend I have thought it through yet, but the difficulty is this: I have reached the conclusion that the council have acted unlawfully in reaching the decision they have, and the claimant, or those advising the claimant, clearly have an arguable say that if the court reaches that conclusion that the court retains power to see if it is possible that the claimant gets an adequate remedy.
134. MR DARBY: Well, the claimant's remedy, like remedy in many cases of judicial review, is that the case will be reconsidered and a lawful decision will be arrived at.
135. MR JUSTICE CRANE: Well, those matters might have to be advanced, and I am certainly not guaranteeing what order, if any, I might make, but I am concerned about this. I think that at the moment I would be minded at least to give them the opportunity to come before the court. I am not making any promises because I can see the difficulties that you raise. But I think I am prepared to go that far.
136. MISS HEWSON: My Lord, that would be helpful. Of course we do not want to be in a situation where this matter is going to have to be endlessly litigated before the courts. But equally we do not want to be in the situation where the remedy that we have had today, the quashing of the decision, becomes purely a Pyrrhic victory because de facto --
137. MR JUSTICE CRANE: I follow that. I think Mr Darby has raised some genuine concerns which will have to be thought about, and I have not thought through, and I emphasise that I am not making any promises, but I am prepared, in making the orders I have made today, which I hope will be agreed and put before me for signature, give liberty to apply, on short notice, in view to a hearing before me on Friday in relation to any further remedy that might be granted.
138. MISS HEWSON: Well, my Lord, subject to that the only other matters that remain outstanding are the issues of costs and the fact that the claimant is legally aided.
139. MR JUSTICE CRANE: Well, the last first. Has a certificate been filed?
140. MISS HEWSON: My Lord, the latest has not been because the latest certificate was granted over the phone. Those instructing me will undertake to lodge it --
141. MR JUSTICE CRANE: I see. On the undertaking to file a certificate within 7 days then public funding assessment granted. Are you asking for costs against the local authority?
142. MISS HEWSON: Yes.
143. MR JUSTICE CRANE: Mr Darby?
144. MR DARBY: I cannot oppose that, my Lord.
145. MR JUSTICE CRANE: Very well, granted.
146. MISS HEWSON: I am much obliged. And a formal Legal Aid assessment?
147. MR JUSTICE CRANE: Yes, a detailed assessment in both cases.
148. MISS HEWSON: Yes.
149. MR JUSTICE CRANE: Yes. I would just like, finally, to say two things. The first thing is to thank both counsel for their helpful submissions. But I think what may be even more important is this: what has quite plainly come through all the documentation I have read is, first of all, Mr and Mrs Alloway's concern and love for Stephen, but I should also like to say that although the council may have acted in a way that I have characterised as wrong, in none of the documents that I have seen has there been any indication of a lack of concern for Stephen's welfare. I would like to make that clear. I do not detect, whatever mistakes may have been made, or wrong views taken, or things not considered that should have been, which is what I have characterised, I have not detected any lack of concern for Stephen. I hope one can be confident that the further assessment will be pursued in that light. I would certainly hope so.
150. Very well, the liberty to apply in relation to Friday can be written into the order, but could the court be kept informed of whether that is likely to happen.
151. MISS HEWSON: Yes, indeed.
152. MR JUSTICE CRANE: Because it plainly affects the listing and there are not unlimited numbers of judges available, as you understand, at this time of year.
153. Thank you.