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
		11th October 2005

1. MR JUSTICE COLLINS: This claim, which was instituted on 15th July of this year, was made by five claimants who suffer from learning difficulties and for whose care the defendant Council is responsible, insofar as they need to be provided with funding to enable them to live their lives in an appropriate manner. At present they are all accommodated by a company called Marpool Limited at a number of homes which Marpool own. They are in fact accommodated subject to tenancy agreements with Marpool Limited, but Marpool also provide the necessary care, in the form of attendance of carers, provision of facilities, etc, such as are needed for the claimants.
2. Care is at present and has since 2003 been provided through a fund known as Supporting People. That was a fund set up by the government and operated by the Deputy Prime Minister's Department. The purpose behind it was to try to ensure that those with learning difficulties, such as the claimants, were enabled to achieve independence to the greatest possible extent; for example, they would not have to remain in a residential home but would be able to live in accommodation which they occupied under some sort of tenancy and the necessary care would be provided, but they were encouraged and active steps were taken to ensure that, as far as possible, that encouragement succeeded to look after themselves to the greatest possible extent.
3. It is obvious that the purposes behind the provision of funds through Supporting People was not necessarily co-extensive with the obligations of the relevant local authority to provide necessary care. Clearly some of what was provided through Supporting People would indeed be co-extensive, but it might well be in individual cases that some would not. For example, if a particular claimant required for the time being 24-hour care, it may well be that all that care would not appropriately be provided by Supporting People. As I understand it, there is no dispute between counsel that that indeed is the position.
4. The problem that arose in this case was that originally Marpool were operating residential homes. There was a change of policy following the proposal to introduce Supporting People. That was triggered because of a decision of the court that housing benefit could not be properly used in order to fund what otherwise would be covered by Social Services obligations of the Council. That being so, it was necessary to split the element of rent from the element of care. This was to be achieved initially by setting up a system (which was known as THB), and that was translated in April 2003 to the Supporting People fund.
5. Marpool decided, after taking advice and discussing the matter, that it would enter upon the new arrangements by ceasing to operate all but one of its then properties as a residential home but entering upon the new arrangements, whereby those who lived there were granted tenancies and the care element would be paid for in due course, they believed, by Supporting People. THB was the start of that process. I am told by Miss Richards that because they had arranged things through THB, once Supporting People took over there was no option but for Supporting People initially to continue to pay, as had been done thitherto through THB. But Supporting People had to consider, in accordance with guidance provided by the Department, the extent to which they would continue to provide funds and whether the arrangements in fact were suitable and appropriate for them to fund at all.
6. Supporting People was enabled to provide funding from money provided from central government, but a number of local authorities with the necessary responsibilities were joined together to arrange the cover that was needed for individuals for whom they were responsible. The particular arrangements with which we are concerned involved Worcestershire as the administrators. They were responsible for the administration of the Supporting People fund. This does not mean that they were able to direct Supporting People to pay money which the law did not entitle them to provide.
7. It seems that in the course of the review those who were acting on behalf of Supporting People decided that what was being provided by Marpool was not entirely satisfactory. There is a factual dispute -- I am not in a position to resolve it, nor have I attempted to do so; it would not be appropriate to do so at this stage -- as to whether or not that was correct. The fact is that in addition it was apparent that the care which was being provided was not care which in all cases was justified to a full extent by the criteria upon which Supporting People provided funding. In particular, it was the view of those who carried out the assessment that Marpool were not gearing their care to trying to ensure, so far as possible, that the claimants (indeed, all those for whom they were responsible) were able to live an independent life. Of course, some degree of care and support would in all cases have been needed.
8. In the result, in April of this year a decision was made in principle that, to use the words which are apparently the appropriate ones in the view of those responsible, the contract should be decommissioned, which means that the contract should be brought to an end. This is what in due course was confirmed in May of this year. The effect of that, so far as the claimants were concerned, was believed to be that they would not be able to continue to live in the accommodation in which they were living. It was decided that the funding would not be withdrawn until November to give some time for the position of the claimants to be reconsidered.
9. In June of this year the local authority carried out Social Services assessments to assess the extent of care that was needed by the various claimants, and in addition to see whether they could continue to live under the auspices of Marpool but with someone else providing the care element, Marpool receiving the rent for them to continue to live there. Those assessments were carried out. As far as the claimants were concerned, the effect of the decision which was made, to terminate the contract, appeared to be that they would have to leave their accommodation. No steps appear to have been taken to evaluate what the effect would be on Marpool if the funding for the care element were withdrawn or to determine whether Marpool would be able to continue to provide the accommodation in question. True it is that at that point Marpool did not say that they would not be able to continue.
10. The claimants threatened judicial review. By letter of 15th June they set out the issues which they asserted led to the decision being judicially reviewable. They said that it was unlawful because it was made without consulting the proposed claimants properly. It was made on the false premise that the cost of care was excessive. It did not take into account all relevant factors, in particular the assessment of the needs of each claimant, the psychological impact that any move may have on the claimants and the promises that had been given to them that they could stay with the present provider as long as they wished. They further asserted that there was no overriding public policy reason to resile from the promise given to at least two of the claimants that they could stay as long as they wished, and that it was irrational or disproportionate given that it was without there being any identified alternative provision that met the claimants' needs. They sought an assurance about the ongoing funding. They wanted disclosure of the complete Social Services files.
11. The response to that letter of 27th June that Worcestershire had a statutory duty to meet the assessed needs of service users taking into account its resources was that it:

"had carried out community care assessments and also commissioned a piece of work with New Possibilities to carry out present centre planning" (That is jargon deriving from the Deputy Prime Minister's Department) "with your clients and the other tenants. The community care assessments reveal that none of your clients [the claimants] require residential care and as such there was no statutory obligation on this Authority to provide accommodation to them.

Worcestershire Social Services Learning Disability Management Team is clear that the supported living services provided by Marpool Limited are not acceptable and would not commission those services from them in any event, as they do not meet your clients' assessed needs.

Worcestershire Social Services are exploring the alternatives, for example, commissioning another service provider to provide your clients with housing related support. This would enable your clients to remain in their tenancies with Marpool Limited continuing to be their landlord. Their tenancies are not dependent on local authority funding as Marpool Limited are in receipt of housing benefit independent of and in addition to Supporting People funding."

Later in the letter:

"Worcestershire Social Services and Supporting People will jointly fund your clients assessed needs to which they are eligible until alternative arrangements are put in place. The County Council cannot give guarantees that there will be ongoing funding for their current placements as that depends on external factors outside of its control."

It is not surprising that the claimants' solicitors took the view that the situation remained unsatisfactory. The most important point, so far as they were concerned, was that Worcestershire were obliged to provide the necessary care arrangements for the claimants. The claimants were settled in the case of most of them and apparently happy at Marpool. They did not want to be moved and, so far as appeared to be the case, there had been no proper assessment, in particular, no arrangements made to provide for alternative placements once the funding for Marpool was removed.

12. The proceedings were instituted only against Worcestershire. The claimants asserted that Worcestershire's decision to approve the recommendation of Supporting People to withdraw support for the proposed claimants was unlawful."
13. The grounds that appear in the letter before action are set out in the grounds of claim. The attack was not against Supporting People. It may well be that the decision that Supporting People made was not one which could be attacked. It may have been as a matter of law a reasonable decision, albeit it was to some extent based upon matters of fact which were in issue, but the claimants were not in a position to judge that and this court would not be in a position to resolve those issues of fact. Suffice it to say that it would be difficult to establish that the decision made by Supporting People in all the circumstances was one which they were not entitled to make upon the material which they had obtained. True it is that there was a complaint about the level of consultation and the manner in which the consultation had taken place, but that was laid at the door of Worcestershire and not at the door of Supporting People, in the sense that Worcestershire were ultimately responsible for the administration. If there were any defects there they were defects of Worcestershire.
14. However, having regard to the principles applicable to costs, with which I am concerned, Mr Wise recognises that he would not be able to say that the consultation point was one that was strong enough to justify by itself an award of costs.
15. In due course permission was granted following an assertion that an emergency order was needed because it was said that the decision was due to come into effect on 10 August, although it might be extended to November. That was it seems a misunderstanding, because clearly it was not going to come into effect until November and the court was perhaps misled (I am not using that word in any pejorative sense) into making an order that time for serving the acknowledgement of service should be reduced to seven days. That is what in fact was ordered and it was complied with and required a degree of extra effort by the defendants. Miss Richards makes the point that it may be that the grounds set out in the acknowledgement of service were not as full as they might otherwise have been because of the time constraints. It seems to me, looking at them, that, broadly speaking, they cover the matters which have been put in issue.
16. In September suggestions were made that it might be sensible to attempt mediation. In due course that was agreed. However, I have had my attention drawn to a letter of 16th September in which, in answer to the suggestion that there should be some form of mediation, they wrote:

"The Council does not accept that there has been a fundamental failure to assess the needs of your clients and does not agree that there is a need for re-assessment of each of your clients, nor does it consider that the independent experts should be involved. [That was some of the detail being asked for by the claimants.] Detailed and comprehensive community care assessments have been undertaken and the council does not agree that there have been any errors of law in the assessment process."

However, they did not indicate that they would not agree to mediation and mediation took place and was successful. It resulted in a consent order, whereby the proceedings were withdrawn upon the Council agreeing various matters. First the Council recognised its statutory responsibility towards the claimants. The agreement went on:

"In view of this most or all of the services commissioned to meet the claimants' assessed needs will be funded by Worcestershire. But it wishes to keep open the option of joint funding with Supporting People in individual cases."

The order continues:

"UPON Worcestershire County Council agreeing to complete their existing Community Care Assessments of the claimants as set out in paragraph 1 of the attached schedule, the said assessments to be completed and served on the claimants and their litigation friend by 1st December 2005."

There is a timescale for various other matters to be done, care plans to be completed, and it was agreed by Worcestershire that they would continue to fund Marpool and provide services for the claimants until November 2005 and that the Council would take over responsibility for that funding until 31st March 2006, the effect of that being that the claimants were safe in the places they were presently occupying and Marpool would receive the necessary funding to enable that to continue until at least March 2006. The work that the defendant agreed to undertake in addition to the existing assessments of community care needs were to update the assessment of their housing wishes which New Possibilities had considered and reported on, to undertake an assessment of the psychological impact of any significant change in the provision provided for them, to meet with the claimants to discuss and seek to agree the content of their assessments and care plans, in the presence of their families and other relevant persons, and to invite Marpool to carry out what is called a Pathway assessment or similar of the independent living skills of each of the claimants. Also Worcestershire agreed that if they proposed that any of the claimants be moved, they would agree to carry out all appropriate assessments, including specific risk assessments, and would invite whoever was the support provider to carry out on a regular basis a daily living skills assessment. Essentially the consent protects the position of the claimants and for the time being the position of Marpool.

17. That consent order having been made the issue of costs is before me, Mr Wise on behalf of the claimants submitting that the claimants should have their costs, Miss Richards on behalf of Worcestershire opposing that, she submitting that the appropriate order should be no order for costs.
18. Just to get one matter out of the way, Mr Wise did at one stage suggest that the fact that Worcestershire had agreed to extend the assessments meant that they must be taken to have implicitly accepted that the assessments that they carried out in June were not complete. That does not follow. The fact that they agreed to do something does not mean that they accept that what was done before was inadequate. That is always the case with consent orders. It may be that a decision is made by a defendant to give something which they do not accept they were obliged to give but which they recognise that if they fought the case they might be required to provide. In those circumstances, it is impossible to read into the order the acceptance that Mr Wise submits is implicit.
19. What is the test applicable? That has been laid down by the guidance case of R on the application of Boxall v The Mayor and Burgesses of Waltham Forest LBC [2001]4 CCLR 258,a decision of Scott Baker J, which has been approved by the Court of Appeal and has been applied by this court in subsequent cases. It is to be noted that that was a case on its facts, where the defendants had wholly failed to carry out an assessment that they clearly ought to have carried out, for a time in the teeth of a court order that they do it. It is in those circumstances not in the least surprising that the actual decision was that they should pay the costs up to the date that the assessment which they ought to have carried out was carried out. They were not required to pay costs in relation to any assertions that the assessment which in due course they did carry out was flawed, because it was recognised by the claimants, no doubt because they did not claim costs after the date I have mentioned, that it was far from clear that the claimants would succeed on that particular issue.
20. The principles are set out in paragraph 22 of the judgment which has often been cited. What Scott Baker J said was this:

"Having considered the authorities, the principles I deduced to be applicable are as follows:

(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

(ii) It will ordinarily be irrelevant that the claimant is legally aided.

(iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost.

(iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

(v) In the absence of a good reason to make any other order the fall back is to make no order as to costs.

(vi) The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."

Unnecessary court time and consequently additional costs are to be avoided. It is to be noted that this application has been made and has taken up some three hours or so of today. I do not complain about the length but it shows that the court is being asked and has to form, albeit in a somewhat broad brush way, a view based upon some knowledge of the details of the case. It is (iv) of paragraph 22 that is important here. What Scott Baker J does not say is that an award of costs is limited to cases where it is obvious which side would have won. Clearly, if it is obvious that the claimants would have won, it is the more easy to award them their costs. Equally, if it is the other way round, then costs may be awarded on that basis. But there will be cases where the court has to consider, albeit without going into any depth at all, whether the case was strong enough to justify an award of costs. Mr Wise accepts that the court would not grant costs in this sort of situation unless persuaded that the claim was a strong one and the probability overall was that the claimants would have won. It may be that one should apply an adjective to probability, and describe it as the "overwhelming probability". The precise shade it is unnecessary to go into. I put it on the basis that there has to be shown to have been a strong case to justify an award of costs in a situation such as this.

21. I think that the proposition set out by Mr Williams QC sitting as a deputy in this court in R (Kaya) v IAT [2003] EWHC 2716 Admin is as helpful as any. What he said was this:

"It is not for me, at this stage, in effect, to rehear a substantive challenge. That would be time-consuming, costly and wholly disproportionate to the amount of costs at stake. It seems to me that I have to approach it on this basis: does a comparatively cursory reading of the papers, albeit a reading which is intended to be informed, demonstrate to me, clearly, that the Secretary of State was very likely to lose and the claimant very likely to succeed as at the permission stage? I do not think I could possibly reach such a conclusion applying that test. In the absence of a good reason the normal order is that there should be no order as to costs. I have been unable to discern the good reason why I should depart from what is normally done in this court."

22. I have absolutely no doubt that it was reasonable to institute these proceedings. Miss Richards has suggested that, since they are proceedings of last resort, there was an alternative by means of going to internal local authority appeals, and possibly after that even to the local government ombudsman.
23. Having regard to the effect of the decision, and to the timescale, albeit not quite as urgent as appeared to be suggested in July 2005, and having regard to the assertion that the decision was clearly unlawful, it seems to me that judicial review was a reasonable course to adopt, and that it would very properly have been considered that it was not the sort of case where an internal appeal process would be likely to achieve what judicial review could achieve. Accordingly, I do not accept that this was an inappropriate case for judicial review in the light of what was known.
24. Mr Wise submits that it was not and could not have been appreciated at the time that the decision in question was made that Worcestershire were recognising that they had an independent obligation which had to fulfilled, as Social Services provider, to provide the necessary care for these claimants. It seemed that it was being suggested that Supporting People had that obligation. Indeed, the fact that it was Supporting People who were providing it until the decision was made that it should no longer be provided by them suggested that Worcestershire believed that it was to be provided through them. However, it is plain from the answer to the letter before action, and the fact that Worcestershire had carried out assessments, that they did, and indeed they say in terms that they did, recognise that they had the obligation to provide the necessary care. On the other hand, the one thing that did appear to be clear was that they had not, on the face of it, taken fully into account the effect of Supporting People's decision upon the claimants and, more importantly, the effect on Marpool, which would itself have an effect upon the claimants. What is said is that before accepting that that agreement should be put in place, they ought to have ensured that steps were taken to make full assessments of the claimants' positions and to ensure that necessary arrangements were made, so that they could either continue at Marpool or move to alternative accommodation, after they had been fully consulted and any fears that they might have had had been assuaged. That is the nub of this case. It is not an attack on Supporting People's decision. It is an attack upon Worcestershire's failure properly to have regard to the effects of that decision and to deal in advance and properly with those expected effects.
25. Miss Richards submits that it was not reasonable to expect Worcestershire itself to make any assessments until Supporting People reached the decision that they did. Anything else would have been premature. That may be correct, but it carried with it an obligation to ensure that the claimants, and indeed Marpool, were fully informed that nothing irreparable would be done until the whole question of funding and the appropriate placements for these claimants should have been carried out.
26. Where does that leave me? It is impossible in my judgment to say that it would be obvious in this case that either party would have won. I think, on the face of it, that the claimants not only were reasonable to institute proceedings but had what appeared to be a strong case. Complaints are made that they required an unnecessary amount of evidence to be produced by Worcestershire. It is said that they ought to have appreciated, if they had looked at the relevant legislation and, more importantly, the guidance given by the Deputy Prime Minister's Office in relation to Supporting People, that it would not have been appropriate for Supporting People to continue to fund as they did, and that it was indeed the obligation of Worcestershire to do so had Worcestershire accepted that that was its obligation. Accordingly, this was a case where, although, on the face of it, it was reasonable to institute judicial review, in fact further negotiations were on the cards and should have been carried out.
27. It may be that the application for judicial review was lodged in order to meet any time limit problems. Negotiations could start then without the need for costs to be incurred. The amounts incurred are substantial, between £40,000 and £60,000.
28. It is not easy for me to form an entirely satisfactory judgment on the merits. Although I think that it was wholly reasonable to institute those proceedings, I am not in a position, at the end of the day, to be satisfied that what had been done by the claimants was unlawful, in the sense that it would in the end have been decided that they clearly had acted unlawfully.
29. The claimants have largely got what they wanted out of the consent order that has been made. That is not of itself in this jurisdiction a proper basis for an award of costs. I did wonder seriously whether this was an appropriate case to award a proportion of the costs, on the basis, for example, that the consultation point and an allegation that some of the claimants had been given assurances that they could stay where they were for life, were in issue, but were issues which were not necessarily pursuable or likely to succeed. Further, there was the issue about the extra work that was involved in the speedy provision of the acknowledgement of service; equally, the requirement of extensive evidence which may have been unnecessary, whether in those circumstances the case was strong enough to justify a partial award.
30. In the end I have been persuaded by Miss Richards that that would not be correct. I am not persuaded that the case here was clearly likely to result in a win for the claimants, although, as I say, they had a reasonable case. In those circumstances, with some regret, it seems to me that I must fall back on the position that the appropriate order is no order for costs. That is the order that I make.
31. MISS RICHARDS: You said that the costs estimate were £40,000 and £60,000 for the defendants. It is 40 to 60,000 to the claimants, based on whether they get costs on an inter partes basis. Would it be appropriate if Mr Wise and I produce something?
32. MR JUSTICE COLLINS: That would be helpful. I am not sure if it is necessary to approve the consent order. As it is now before me, the sensible thing is to do that. I do it with no order for costs.
33. MISS RICHARDS: We have not typed up the consent order. We have to type up an order.
34. MR JUSTICE COLLINS: Upon the parties reaching the terms ----
35. MISS RICHARDS: I am sure we can do that.
36. MR JUSTICE COLLINS: These proceedings be withdrawn with no order for costs save legal aid assessment.
37. MR WISE: The press are in court.
38. MR JUSTICE COLLINS: This is an initial case.
39. MR WISE: There are no other matters.
40. MR JUSTICE COLLINS: You and your solicitors clearly had an obligation to the fund to make all reasonable applications to try to get their costs. You fulfilled that very properly. The legal aid fund should be grateful that you have done so. The fact that you have not succeeded is nothing to the point. It was a reasonable claim to make. You are welcome to bring those observations to the attention of the Legal Services.