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
		15th July 2004

Thursday, 15th July 2004

1. MR JUSTICE MCCOMBE: I have before me an application for permission to apply for judicial review brought on behalf of two severely disabled children.
2. The proposed claim is brought on their behalf by their mother and litigation friend. The two children are aged 16 and 12 and have Christian names beginning with the letters H and F, respectively, and I shall call them "H" and "F" in this judgment.
3. I interpolate to add that nothing must be published that is calculated to permit identification of either H or F without further order of the Court.
4. The proposed claim for judicial review is against the London Borough of Wandsworth, which I shall call "Wandsworth". On behalf of H and F, it is contended in carefully drafted grounds of appeal that Wandsworth has:

"i. unlawfully failed to provide the aids and adaptations to their home which are necessary for them to be properly and safely cared for and

ii. unlawfully failed to assess the claimants' needs and provide a level of care consistent with their needs".

5. There is also a claim for interim relief encapsulated in paragraphs 2 and 3 of a draft order presented to me by Mr Wise on behalf of the claimant.
6. By that revised form of application, the claimants asked that Wandsworth be ordered to provide the claimants with two carers for 12 hours for each day of the school holidays, commencing 16th July 2004 until determination of the application or further order and that the defendant be ordered to provide the claimants with two carers for seven hours for each Saturday and Sunday until the determination of the application or further order.
7. By an order of Newman J made 8th July, it was directed that these applications should be listed for oral hearing on notice to Wandsworth during the current week and it was directed that Wandsworth should serve and file grounds of opposition to the application.
8. Such grounds were provided by way of a witness statement of Mr Julian Wooster, the Assistant Director of Social Services at Wandsworth, together with a helpful skeleton argument from Mr Sheldon, who appeared on behalf of Wandsworth.
9. The salient facts of the case can be stated thus. The first claimant, H, is 16 years old. He suffers from a neurotransmitter disorder and has a global learning disability. He is dependant on support for all his functions and has to be moved by wheelchair. He needs assistance with dressing and feeding and toileting and his needs are such that he needs constant care throughout the day. He wakes most nights and needs support, such as help with his bed clothing and obtaining drink.
10. He attends a special school for children with severe difficulties aged between 11 and 18 on a daily basis. He started at this school in February 2001.
11. The most recent statement of Special Educational Needs made on H's behalf describes him as being globally delayed in his development. He has severe and complex learning difficulties which compound his physical needs. He is following a multi sensory curriculum and working towards level 1, National Curriculum. He is at the pre-verbal stage of development and has no speech, sounds or words that convey meaning, and communicates his likes and dislikes through facial expression, as laughing or crying.
12. The second claimant, F, is 12 years old. He was born with a diaphragmatic hernia and an oesophagal restriction and other disabilities, such as tightness of limbs and restricted movement. He is also autistic. He needs help in dressing and other daily activities. He is unsteady on his feet and needs a wheelchair for longer outings. Due to learning and physical difficulties, he needs adult supervision at all times.
13. Like H, he attends the same school, which I have already mentioned. F started at that school in October 2001. His most recent Statement of Special Needs records that although he knows the words to some songs, he usually speaks in single words. The statement goes on to say that he enjoys sharing books with adults, but is at a pre-reading stage. He is also at a very early development stage of drawing and cannot recognise his name in print or any of the letters of the alphabet. He is, however, reported to be able to count up to 20.
14. The statement continues that F is working towards level 1 in all areas of the National Curriculum and most of his skills appear to around the aged three to four level.
15. H and F live with their parents in Wandsworth's local authority area. It is not in dispute that both parents are very committed to the welfare and care of their children and that for many years they have looked after their needs without assistance from public authorities.
16. Some support began to be provided in January 2002. I do not believe that it is disputed that the parents genuinely consider that Wandsworth have not provided adequate care arrangements for H and F, having regard to the stresses imposed upon them by the very difficult responsibilities which they have in caring for their two children.
17. By May 2002, however, the parents found it necessary to make formal complaint to Wandsworth, alleging that it was acting contrary to statute in the following respects:

"(a) no individual core assessments for H and F in accordance with section 17 Children Act 1989 have been undertaken; and

(b) no individual carers assessment in accordance with the Carers and Disabled Children Act 2000 has been undertaken; and

(c) [the family] has never received the full package of care they were assessed as needing;

(d) the suggested care packages do not meet the boys' assessed level of need;

(e) [the family] has been left without services during the school holiday periods; and

(f) the proposed care plans have ignored [the parents'] wishes in relation to care arrangements and respite; and

(g) the occupational therapists recommendations have been ignored by social services; and

(h) there have been unacceptable delays on behalf of the local authority in formulating an appropriate care plan and service provision for [the family] and in providing a resolution to this matter".

18. In making is that quotation, I have made certain alterations to anonymise the family's name.
19. The complaint that led to core assessments being conducted by Wandsworth for the needs of the two children: I propose in dealing with the issues that confront the Court on this application to deal with the care issues first before dealing with questions of equipment and adaptations to the home.
20. The assessment that I have mentioned was concluded by a report of a Miss Carol Brown. By that report, in an annex which appears at page 253 of the bundle before me, an assessment of care was given.
21. The care package there described, again leaving out the names and making appropriate alterations, reads as follows:

"1. The main aim of this care package is to support the parents ... in caring for H and F at home.

2. In creating this care package the aim is to balance:

The needs of H and F, to include time with their parents as well as care needs;

The needs of [the parents], to have a complete break from time to time;

The needs of the family unit, to spend time together without other people.

3. A care package is there to support the family, not to provide total alternative care.

4. An important factor is the accommodation:

The house is not suitable for those with mobility problems as there are multiple stairs. [The parents] prefer not to move to alternative accommodation.

There is still not enough suitable equipment in the home;

These two factors impact on the provision of care -- some agencies will not supply staff to work in the home without suitable equipment.

5. We will continue to try to resolve some of the equipment issues with the Department's Occupational Therapy Section.

6. In meeting H and F's day-to-day care needs, different numbers of staff may be needed at different times. At times, two carers of adequate (carers include parents) and at other times three or four are provided to give more assistance to the family to spend time together.

7. In proposing the package offered, the following points have been considered.

Two carers in addition to parents is required on school day mornings, because of the speed needed to get them both ready on time, this is not so crucial during holidays.

Continuation of the extra two hours on two weekday evenings will allow H and F to pursue leisure activities and for [the mother] to be included in this.

The holiday care offered provides one carer for most of the day to work with a parent, with either two or four hours with two carers, depending on shift pattern.

There is an option to extend this on some days a year to enable the family to go away and to cater for emergency school closures.

Some domestic help is necessary.

No care at weekends, in order to allow family time together as a family.

Recognition of the strain on parents of caring, so regular full respite for them to be provided".

22. For the purpose of the present applications, it is to be noted that the equipment was considered inadequate and that it might impinge on the availability of carers and, accordingly, the recommendations were made.
23. In the body of the report, Miss Brown made the following assessment of the holiday care position in a passage that appears at page 135 of the bundle before me:

"I feel that the temporary increase in the care package may have created expectations for [the parents]. We discussed the holiday care package, which has been agreed at 2 workers for 12 hours a day for the current half term. I asked the parents how they would feel if this level of care was provided for some weeks and not others. During the last school summer holiday [the parents] 'topped up' the care by paying privately for the extra 4 hours. I felt that this would be a way of working in partnership with the Department to address unmet needs. [The father] said that it was impossible for them to do this. Last summer's debts were still on their credit cards. I would point out that their needs during holidays vary according to whether or not [the parents] have time off work. The family holiday regularly in Cornwall (where carers have accompanied them) but say that this is not a break from their caring responsibilities".

24. I think it is clear from the assessment report that at that stage Miss Brown fully took into account the stresses upon the parents and the need to alleviate it so far as possible. She alludes to those factors in various places in the report, some of which that I have quoted.
25. By a report of 18th October 2002, that is contemporaneously with Mr Brown's assessment, a private sector care provider, commissioned by Wandsworth, which was called Nestor Prime Care, made its own proposal for delivering what it described as a "complete care package" for H and F.
26. On page 8 of that report, it was recommended that two carers should be provided in the holidays, each for 12 hour days.
27. In July 2003, a report to the claimants' solicitors by a Mr Stuart Sinclair, an expert in social work, advised holiday provision at approximately a similar level. He also advised weekend care by two carers for seven hours each. He also considered that at some times three carers might be needed for certain additional activities.
28. A further report of 20th May 2004 to the claimants' solicitors by another expert called Chris Wall made similar recommendations for school holiday requirements.
29. On behalf of Wandsworth, at about the same time in May 2004, a Miss Marie Gorman, a social worker of 28 years' experience, provided reports on each child. This was prepared as a review of care arrangements by Wandsworth.
30. The family had been away from London from Cornwall between August and November 2003 and it appears from the papers that a review had also been carried out by a local authority in that part of the country. I was not, however, directed to that review.
31. The opening paragraphs of Miss Gorman's report on H's care read as follows:

"The parents requested the review of the services provided for H. In particular, a request had been made for H to attend a residential boarding school. As there had been two core assessments previously undertaken, October 2002 and October 2003, and the family found this process intrusive, it was agreed that a review of the core assessment would be undertaken. This would focus on H's care needs, the parents as carers and how identified needs could be met appropriately".

32. There is a similar passage appearing at the beginning of the contemporaneous report in respect of F.
33. Miss Gorman recommended holiday care services of eight hours per child per week day and eight hours per child per weekend, to be used at times chosen by the parents.
34. In these circumstances, it is argued on the claimants' behalf that the care plans and assessments were fundamentally flawed.
35. In paragraph 38 of the grounds of claim, the following is urged on the claimants' behalf:

"The latest assessment of H (the May 2004 'review') recognises that he is 'totally dependant on others to carry out all aspects of his personal care needs' and that he is doubly incontinent. The review records under the heading 'parenting capacity' that [the parents] say that they are stressed and exhausted with caring for H, particularly at weekends'. The concluding 'analysis' is predicated on H moving to a residential school. As we know this will not now happen. Importantly however the review does not analyse H's need for support and care whilst in the home at weekends and during the holidays. There is no objective analysis to support the recommendation that of 8 hours care be provided at weekends and 8 hours support each day during the holidays. This assessment fails to consider how H will be looked after during the remainder of the day and night. In short the number of hours support appears to have been arbitrarily determined without the defendant having asked itself the critical question as to what H's needs are, how those needs are to be met and who is to meet these needs. There is also a failure to provide a rational basis for the decision as to the amount of respite to provided. Accordingly, the assessment and care plan are fundamentally flawed".

36. A similar criticism is made in the ensuing paragraph of the assessment and care plan for F.
37. Mr Wise for the claimants submitted that the reasoning process of Wandsworth suffered from the same defects as those identified in the case of R v Ealing London Borough Council ex parte C [1999] 3 CCLR, 122.
38. In that case, the Court of Appeal held that the authority's decision and decision making process was flawed with regard to their analysis of the accommodation problems of a disabled child, his mother and brother. The Court found that the authority had simply failed to address the practical problems facing the family and to analyse how those problems were to be met.
39. Mr Wise says that the same is true here. He submits that Wandsworth's assessments are predicated upon the implicit assumption that it will be the parents who will, between them, provide the 16 hours per day of holiday care required for each child, which is not going to be provided by carers under the Wandsworth proposals.
40. He submits that the proposals simply fail to address how the parents will fill the gap.
41. For my part, I consider the same should be said to be true of the reports relied upon by the claimants. Each assumes that where paid care is not provided, gratuitous care will be provided by the parents. All the reports make that assumption, but the conclusions about the care necessary from the local authority are different from those made by the others.
42. It is the authority that carried out the core assessment in 2002 and the restricted review at the request of the family earlier this year. The papers also show that a further review is to be carried out by September.
43. It is clear, however, to my mind that the reports had to make their assessments of need in the context of what Miss Gorman reports for Wandsworth as being "the family and environment factor" and "parenting capacity".
44. Those are given matters. The inherent stresses and exhaustion caused by the situation are borne well in mind by all the authors of the reports. Moreover, Miss Gorman has made it clear that she wishes to review the care plan in advance of the new school term in September 2004. This is of particular importance, since a hoped for residential education placing for H as from September has now fallen through.
45. The assessment made by Miss Gorman is the professional judgement of an experienced social worker. While the difference of opinion has been pointed out on the claimants' behalf, it has not been possible to challenge its rationality other than by the suggestion, which I am unable to accept, that it fails to assess the parents' ability to provide the care required of them.
46. I think it is impossible, therefore, to contend that Wandsworth have acted unlawfully in taking the view that the care plans now proposed by it are properly supported and justified by the professional judgement of an experienced and competent social worker.
47. While, of course, the Court has the greatest sympathy for the parents and their discontent with Wandsworth's response to its complaints, it is impossible to conclude that Wandsworth's stance is arguably unlawful.
48. Accordingly, I must refuse permission to apply for judicial review in respect of issue 2, as set out in paragraph 1 of the grounds and I cannot therefore grant the interim relief claimed in paragraphs 2, 3, or 4 of Mr Wise's draft order.
49. I should say that I have left out of account in my consideration of this issue the exigencies of Wandsworth's budget. Evidence has been put before me of very considerable sums expended by Wandsworth in providing care for H and F during the last year and this year. The sums are impressive.
50. It is recognised by the claimants that funding is in the end a matter which Wandsworth is entitled to take into account in the care provided.
51. However, at this stage, the criticism is directed to the social assessments made by the Council, upon which in due course financial considerations may become relevant. Such considerations may temper the legal obligation upon Wandsworth to provided the desirable care for H and F. However, they are not relevant at this stage to the initial care assessment which calls to be made at present.
52. I have, accordingly, had no regard to those needs and have found that at present there is no arguable unlawfulness in the assessments reached. That, however, is not the end of the story.
53. I turn now to the other issue, namely that concerning aids and adaptations to the family's home. The complaint made here is that Wandsworth have considered the claimants' needs only in the context of the feasibility of making a disabled facilities grant, which I shall call a "DFG" under the Housing Grants Construction and Regeneration Act 1996.
54. Such a grant is means tested. The claimants contend that Wandsworth has failed properly to consider an alternative provision under section 2 of the Chronically Sick and Disabled Persons Act 1970. Such provision is not means tested, although I was told that there is a possibility for an authority to levy charges for provisions made under that Act.
55. DFGs fall under the remit of the local Housing Authority, while provision under the 1970 Act is a matter for the relevant Social Services Department.
56. Mr Wise for the claimants submits that Wandsworth has consistently failed to address the possibilities in making provision under the 1970 Act and, as he put it, have become "fixated on the DFG scheme".
57. It is clear that for some time those acting for the claimants have regularly invoked the provisions of the 1970 Act and have invited proposals under it. Mr Wise points to the latest occupational therapy assessments produced during the current week, following visits to the family in May and June 2004. He points out that the recommendations contain several references to DFGs, but no references at all to potential provision under the 1970 Act.
58. For Wandsworth, Mr Wooster in his recent witness statement, states as follows:

"The claimants have suggested, however, that the Council is under a duty to provide the aids and adaptation under the CSDPA".

59. That is, of course, the 1970 Act.

"Before considering whether it is necessary to meet the needs of a disabled person to make provision under the CSDPA, I am told and verily believe that the Council is entitled to consider what resources are available for the provision in question for those matters in Kim Jackman's report that do not require further investigation or consultation".

60. I interpolate to say that that is the occupational therapy reports, to which I have just referred.

"The Council is now in a position to consider the issue of resources and will do as soon as reasonably practicable. The Council will also have to consider, however, whether and if so to what extent the family should be charged for any provision made".

61. Mr Sheldon argues, therefore, that the claim for judicial review is premature. He further submits that whatever may have been the deficiencies of assessments under the 1970 Act, during 2002, this is no longer of relevance, since the family were absent in Cornwall from August to November 2003 and that, therefore, the matter has to be assessed from December to the present day.
62. He says that the 1970 Act was only expressly raised in May 2004 and the authority are entitled to have time to consider the matter.
63. In my view, this aspect of the claim is not as clear as Mr Sheldon's able submission would have me find. The correspondence between the parties is indeed lengthy and I have not been directed to all of it. It is clear that the 1970 Act was raised by the claimants' solicitors in January 2003. Thus, it might have been expected that the matters now said to be under consideration in relation to the 1970 Act would have been well in mind immediately on the family's return and upon the review assessment, which failed to be considered on that return over seven months ago; yet Mr Wooster's statement, served after the commencement of these proceedings and after this oral hearing had been directed, was the first indication that Wandsworth has given any consideration at all to the provision of this alternative scheme.
64. I think, therefore, that Mr Wise is right in his submission that it is arguable that Wandsworth have failed in their duties in this respect. The matter is not clear, I emphasise, on either side, but it is arguable. Accordingly, I grant permission to apply for judicial review in respect of the other issue raised in the grounds, namely aids and adaptations to the home.
65. It is urged that the claim in this regard is fit for expedition. On the other hand, it has to be recognised that it was the care aspect of the case which gave rise to the considerable urgency in fixing the present hearing, with the onset of the summer holidays.
66. For my part, any alleviation of the parents' problem is properly arguable cause for urgent review. Assessments of equipment needs, coupled with the new review contemplated by Miss Gorman and relied upon by Wandsworth itself, may produce a more general common ground before the change of the family's arrangements at the commencement of the new academic year.
67. These two elements of urgency may, one hopes, bring these two parties, no doubt equally desirous of achieving a proper result in the light of all exigencies, closer together.
68. I accordingly make directions for expedition contained in Mr Wise's draft order. I would, however, have, as I thought was common ground, a long stop date in those directions of a hearing in the week beginning 27th September, rather than suggest it in the draft.
69. I will hear counsel on the form of appropriate order.
70. MR WISE: We discussed this between counsel yesterday, my Lord, the timetabling, that is.
71. MR JUSTICE MCCOMBE: Yes.
72. MR WISE: Your Lordship has directed expedition and that the matter be heard the week of the 27th.
73. MR JUSTICE MCCOMBE: If at all possible, that is what we should aim for. That is what I thought was common ground, that expedition was appropriate.
74. MR WISE: Yes, my Lord.
75. The consequential directions: does your Lordship have the order to hand?
76. MR JUSTICE MCCOMBE: Yes, I do.
77. MR WISE: Number 6: 3rd September becomes 10th September.
78. MR JUSTICE MCCOMBE: Yes.
79. MR WISE: 10th September becomes 17th September.
80. MR JUSTICE MCCOMBE: Yes.
81. MR WISE: Number 7: The 15th becomes the 20th and the 17th becomes the 23rd.
82. So that is, again -- if you bear with me one moment?
83. Does your Lordship have the 20th and the 23rd for the skeletons?
84. MR JUSTICE MCCOMBE: Yes, I do.
85. MR WISE: That will allow for preparation prior to a hearing.
86. MR JUSTICE MCCOMBE: Might I suggest that for those matters of directions, a formal draft order could perhaps be lodged and signed by the two of you, please?
87. MR WISE: Of course, my Lord.
88. MR SHELDON: My Lord, one further point is the issue of costs.
89. In the draft order that my learned friend puts up, he asked for costs to be reserved.
90. MR JUSTICE MCCOMBE: Yes.
91. MR SHELDON: My submission is that there should be no order as to costs.
92. What we effectively have had today and yesterday is counsel have had to come along in any event to resist these interim relief applications and we have been successful in respect of that and in respect -- essentially, I was in more than half of the case, but let us say it was only half of the case -- not been successful to resist permission in respect of aids and adaptation.
93. The most sensible thing to do at this stage would be to say no order as to costs in respect of permission and obviously if costs result in a hearing.
94. MR JUSTICE MCCOMBE: I think you might reasonably say that there would be no orders as to costs for the hearing yesterday and reserve the remainder of the costs in relation to the other matters. That has to me some initial attraction, but I will hear what Mr Wise says.
95. MR WISE: My Lord, we say the appropriate order as to costs would be costs be reserved. Clearly, there is some mileage in this application yet and the judge who finally determines the matter will be best placed to take an overall view of the appropriate costs order.
96. We have succeeded in part, of course, yesterday. That is a matter that should be taken into account when costs are finally determined at the end of this matter.
97. It is not appropriate, we would say at this stage, to shut us out of any potential costs order.
98. MR JUSTICE MCCOMBE: Mr Sheldon, do you want to respond?
99. MR SHELDON: The judge who will be hearing the matter in September, hopefully, will not be better placed than you are in dealing with the care part of the case because that will not be -- there is no permission for that. That matter will not be raised at that stage and there will be background documentation relating to it.
100. We ought not to be placed at any risk of having to pay any costs in respect of that matter and the most sensible way of dealing with that is to say no order as to costs up to as of yesterday, as you have suggested.
101. MR JUSTICE MCCOMBE: I was envisaging saying no order as to costs as of yesterday's hearing as it were, of and incidental to yesterday. There may be preparatory costs that could fall to be dealt with by the judge who hears the end application.
102. MR SHELDON: My Lord, if we had been successful in respect of the entire matter, then we would ask for costs.
103. MR JUSTICE MCCOMBE: Yes, of course.
104. MR SHELDON: Obviously, subject to the usual orders.
105. What we are seeking to do is to prevent the public purse at Wandsworth from having to pay costs and we have been successful in respect of more than half of the case, to put it fairly. That was the thrust of the application and we should not be put at any risk of having to pay any of those costs if the matter does come before a judge in September.
106. MR JUSTICE MCCOMBE: I follow.
107. The order I will make is that there be no order for costs of and incidental to the hearing yesterday.
108. All other costs of and incidental to these applications will be reserved to the judge who hears the final application in September, or whatever the date may be.
109. MR WISE: There would be a public funding assessment of yesterday's hearing?
110. MR JUSTICE MCCOMBE: In your case?
111. MR WISE: In my case, yes.
112. MR JUSTICE MCCOMBE: Yes. I will so direct and perhaps you can include that in your draft minutes, Mr Wise?
113. MR WISE: Yes.
114. One further matter, my Lord, and that is the anonymity order that you made at the outset.
115. MR JUSTICE MCCOMBE: Yes. I was not confident of the jurisdiction I had, but it seemed appropriate.
116. MR WISE: Normally speaking, of course, one would seek an anonymity order when children are concerned. This case has, howenever, received publicity already, as perhaps evidenced by the attendance of the press today.
117. MR JUSTICE MCCOMBE: I did not know that.
118. MR WISE: It is in the public domain in any event and in those circumstances, I would invite your Lordship not to make an anonymity order.
119. MR JUSTICE MCCOMBE: If that is made on your application, that may be a different matter. If you are applying for me to lift that restriction that I wished to impose, because I thought it was in the children's interests, then I will hear what Mr Sheldon says.
120. Mr Sheldon.
121. MR SHELDON: My Lord, this has received considerable publicity, not at, I have to say, Wandsworth's insistance.
122. My instructions are normally in these cases, we respect the children's interests to remain anaonymous, and that is what I urge on the court.
123. MR WISE: My Lord, although that is the usual approach, in the real world, this matter is in the public domain. Mrs Spink has written a book I am informed is in the best sellers' lists and tells and gives the whole background, although obviously not this application and hearing.
124. MR JUSTICE MCCOMBE: She represents the interests of the children, as their litigation friend, and if that is her application, I do not oppose the lifting of the restriction.
125. MR WISE: Does the case then become known by its names?
126. MR JUSTICE MCCOMBE: It can be, as far as I am concerned. The direction for anonymity and listing I will remove as well, if that is your application?
127. MR WISE: Yes, my Lord.
128. MR JUSTICE MCCOMBE: I will make that and I will lift those restrictions.
129. Thank you both very much for your helpf with not an untroubling case and I do hope that the parties will eventually resolve their differences and I hope it is not unapparent to you, Mr Wise, or to your clients that I have sympathy with their predicament.