QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of J (by his litigation friend MW)
|- and -
|CAERPHILLY COUNTY BOROUGH COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Rhodri Williams (instructed by the Head of Legal Services) for the defendant
Crown Copyright ©
Mr Justice Munby :
The factual setting
"It is the duty of the local authority looking after a child to advise, assist and befriend him with a view to promoting his welfare when they have ceased to look after him."
Paragraph 19B, so far as material, provides as follows:
"(4) For each eligible child, the local authority shall carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Act –
(a) while they are still looking after him; and(b) after they cease to look after him,and shall then prepare a pathway plan for him.
(5) The local authority shall keep the pathway plan under regular review.
(6) Any such review may be carried out at the same time as a review of the child's case carried out by virtue of section 26."
Paragraph 19C provides that:
"A local authority shall arrange for each child whom they are looking after who is an eligible child for the purposes of paragraph 19B to have a personal adviser."
"(1) The responsible local authority in carrying out an assessment and in preparing or reviewing a pathway plan, shall to the extent that it is reasonably practicable –
(a) seek and have regard to the views of the child or young person to whom it relates; and(b) take steps to enable him or her to attend and participate in any meetings at which his or her case is to be considered.
(2) The responsible local authority shall without delay provide the child or young person with copies of –
(a) the results of his or her assessment,(b) his or her pathway plan,(c) each review of his or her pathway plan
and shall so far as reasonably practicable ensure that the contents of each document are explained to him or her."
"(1) The responsible local authority shall assess the needs of each eligible child, and each relevant child who does not already have a pathway plan, in accordance with these Regulations.
(2) The assessment is to be completed –
(a) in the case of an eligible child, not more than three months after the date on which the child reaches the age of 16 or becomes an eligible child after that age …
(3) Each responsible local authority shall ensure that a written record is kept of –
(a) the information obtained in the course of an assessment;(b) the deliberations at any meeting held in connection with any aspect of an assessment; and(c) the results of the assessment.
(4) In carrying out an assessment the responsible local authority shall take account of the following considerations –
(a) the child's health and development;(b) the child's need for education, training or employment;(c) the support available to the child from relationships with members of his or her family and with other persons;(d) the child's financial needs;(e) the extent to which the child possesses the practical and other skills necessary for independent living; and(f) the child's needs for care, support and accommodation.
(5) The responsible local authority shall, unless it is not reasonably practicable to do so, seek and take into account the views of –
(a) the child's parents;(b) any person who is not a parent but has parental responsibility for the child;(c) any person who is caring for the child on a day to day basis;(d) any school or college attended by the child, or the local education authority for the area in which the child lives;(e) any independent visitor appointed for the child;(f) the general practitioner in whose list the child is included;(g) the personal adviser appointed for the child; and(h) any other person whose views the responsible local authority or the child consider may be relevant."
"(1) As soon as possible after completing the assessment, the responsible local authority shall prepare a pathway plan for each eligible child … in accordance with this regulation.
(2) The pathway plan must include, in particular, the matters referred to in the Schedule.
(3) The pathway plan must, in relation to each of the matters referred to in the Schedule, set out –
(a) the manner in which the responsible local authority proposes to meet the needs of the child; and(b) the date by which any action required to implement any aspect of the plan, will be carried out by the responsible local authority.
(4) The pathway plan must be recorded in writing."
"1 The nature and level of personal support to be provided to the child or young person.
2 Details of the accommodation the child or young person is to occupy.
3 A detailed plan for his or her education or training.
4 Where relevant, how the responsible local authority will assist the child or young person in employment or seeking employment.
5 The support to be provided to enable the child or young person to develop and sustain appropriate family and social relationships.
6 A programme to develop the practical and other skills necessary for him or her to live independently.
7 The financial support to be provided to the child or young person, in particular where it is to be provided to meet his or her accommodation and maintenance needs.
8 The health needs, including any mental health needs, of the child or young person, and how they are to be met.
9 Contingency plans for action to be taken by the responsible local authority should the pathway plan for any reason cease to be effective."
"(1) The responsible local authority shall review the pathway plan of each eligible … child in accordance with this regulation.
(2) The responsible local authority shall arrange a review –
(a) if requested to do so by the child or young person;(b) if it, or the personal adviser considers a review necessary; and(c) in any other case, at intervals of not more than six months."
"(1) A personal adviser shall have the following functions –
(a) in relation to eligible … children, the functions listed in paragraph (2) …
(2) The functions are –
(a) to provide them with advice (including practical advice) and support;(b) to participate in their assessment and the preparation of their pathway plans;(c) to participate in reviews of their pathway plans;(d) to liase with the responsible local authority in the implementation of the pathway plan;(e) to co-ordinate the provision of services to them, and to take reasonable steps to ensure that they make use of such services;(f) to keep informed about their progress and wellbeing; and(g) to keep a written record of any of the adviser's contacts with them."
i) Procedure: Regulation 7 requires the assessment to be "completed" not more than three months after the child reaches the age of 16. Regulation 6 requires the local authority, so far as "reasonably practicable", to "seek and have regard to the views of the child", to "enable him … to attend and participate in … meetings" and to "ensure that the contents of [his assessment and pathway plan] are explained to him". Regulation 6 also provides that the local authority must – "shall" – and "without delay" provide the child with copies of his assessment and pathway plan. Regulation 7 requires the local authority to take into account the views of the child's personal adviser. Regulation 12 provides that amongst the functions of the personal adviser are "to participate in [the] assessment and the preparation of [the] pathway plan" and "to liase with the … local authority in the implementation of the pathway plan".
ii) Content: Regulation 7(4) identifies the matters which the local authority "shall" take account of in carrying out the assessment. Regulation 8 provides that the pathway plan "must" include the matters referred to in the Schedule. Paragraph 3 of the Schedule, it will be noted, requires there to be a "detailed plan" for education or training. Regulation 8 also provides that the pathway plan "must", in relation to "each" of the matters referred to in the Schedule, set out the "manner" in which the local authority proposes to meet the needs of the child and the "date" by which "any" action required to implement any aspect of the plan, will be carried out by the local authority.
"The needs assessment to inform the Pathway Plan should be based on the three domains within the Framework for the Assessment of Children in Need and their Families … the starting point for assessing the young person's developmental needs should be as set out in the Looking After Children System. The Assessment and Action Records should provide a comprehensive picture of the child's developmental needs and the agreed actions to address these."
"The Pathway Plan should be explicit in setting out the objectives and actions needed to achieve these; this should include who is responsible for achieving each action and time-scale for achieving it."
"the personal adviser is likely to play a negotiating role on behalf of the child or young person, ensuring that the plan is realistic and deliverable whilst meeting assessed needs. Whilst there is an element of advocacy in this, it would be wrong to construe the role primarily as that of an advocate."
Paragraph 3.13 says that:
"In order to avoid setting up conflicts of interest, the personal adviser should not also be the budget-holder."
Paragraph 3.18 points out that:
"the personal adviser is not intended to supplant existing sources of support."
i) declarations that the local authority had acted unlawfully (a) in failing to assess J's needs and (b) in failing to secure suitable accommodation for him; and
ii) mandatory orders requiring the local authority (a) to appoint a personal adviser for J, (b) to produce a proper assessment and pathway plan, and (c) to provide accommodation and support for J consistent with his assessed needs.
J's personal adviser
i) The local authority embarked upon the process far too late. The pathway plan should have been completed by September 2003. The first pathway plan was not produced until November 2004. That was a breach of regulation 7(2)(a). J should have had a personal adviser long before March 2004: see paragraph 19C of Schedule 2 to the Act read in conjunction with regulation 3(1).
ii) Whatever steps were taken to involve J in the process were inadequate. There were, as it seems to me, breaches of regulations 6(1)(a), 6(1)(b) and 6(2). In this regard the local authority's approach is exemplified by the comment in its letter of 23 December 2004 that the documents "have not yet been shared with [J]."
The content of the documents
i) Part 1 – Health & Development: Having identified concerns about J's emotional well-being, including depression and paranoia, the only action to be taken would seem to be to register J with a local GP and "facilitate a health assessment". There is a contingency plan to "liaise" with "relevant health agencies". That is all. The persons responsible are identified as Mr S and J's social worker. The 'Target Date' is "ASAP".
ii) Part 2 – Education / Training / Employment: J's identified needs are said to be "Training / Employment Support in literacy and numeracy". The only actions to be taken are "To arrange an appointment with the local Careers Office" and "To liaise with the local Princes Trust representative to explore their options". Now quite apart from the fact that the local authority's planning as embodied in a pathway plan ought to be considerably further advanced than this, it is far from apparent how either the Careers Office or the Princes Trust, are going to assist J in tackling his literacy and numeracy problems.
iii) Part 4 – Identity: An identified problem is "Limited social skills". The action proposed is to "Provide opportunities for increased social interaction". The contingency plan is for Mr S to "explore ways of linking [J] into mainstream agencies".
iv) Part 5 – Independent Living Skills Practical & Money Matters: One of J's identified needs is for help in "Reading and filling out forms". The identified action is "To develop a programme in order to equip [J] for some level of independence", the person responsible is Mr S and the 'Target Date' is said to be "On going". The contingency plan is stated to be that Mr S will "devise then implement an independent, individual, living programme."
v) Part 6 – Accommodation: The identified need is for "Appropriate, supportive accommodation". The identified action is to "Continue to explore" various options (a named project, private renting and private housing associations) and to "follow up" J's local authority housing application. This again is described as "On going".
"it was essentially a descriptive document rather than an assessment, and in any event sufficient detail was still lacking both as regards the assessment itself and as regards the care plan and service provision. There was no clear identification of needs, or what was to be done about them, by whom and by when."
Mr Wise was right to draw attention to those last few words which, as it seems to me, helpfully encapsulate the essence of what is needed of a pathway plan if it is to meet the requirements of the Regulations. The revised pathway plan dated 24 January 2005, in my judgment, manifestly fails to meet these requirements.
"The Pathway Plan should be explicit in setting out the objectives and actions needed to achieve these; this should include who is responsible for achieving each action and time-scale for achieving it."
I draw attention to and wish to emphasise the word "explicit". At the risk of stating the obvious, the pathway plan here was very far indeed from being explicit.
"All avenues of accommodation available to the Local Authority have been explored. The only viable [option] is to present himself to the CCBC Homelessness Department when he is released on 13th January 2005, without electronic tag. He would then be eligible for emergency Bed and Breakfast Accommodation."
The problem of the uncooperative child
MR JUSTICE MUNBY: This was an application for judicial review challenging alleged failures by the defendant local authority to comply with its statutory obligations in relation to the leading care legislation. For the reasons set out in a written judgment, the draft of which has already been sent to the parties, the claim succeeds. Yes, Mr Wise?
MR WISE: I am most grateful for your Lordship's judgment. You should have on your desk an agreed order.
MR JUSTICE MUNBY: The order is now agreed, is it?
MR WISE: It is, my Lord. I only managed to contact my opponent late yesterday afternoon.
MR JUSTICE MUNBY: Is it, in fact, in the same form as the previous draft?
MR WISE: Very similar. Before I come to the details of that, my Lord, firstly on the judgment itself, on re-reading it this morning I did come across a very small typo. I apologise for not noticing it before. It is at page 13, paragraph 22. The third line from the bottom should be "Mr S" and not "Mrs S". Nothing hangs on it.
MR JUSTICE MUNBY: It should be "Mr" and not "Mrs". It has been corrected.
MR WISE: Has it already? I am obliged. Before we turn to the substantive relief, as your Lordship would expect, prior to taking the judgment, we have taken instructions as to what the current position is. We want to know that and anticipate that your Lordship will be concerned to know. We have contacted the family and the situation is that J left the Park Hotel some time ago because of the constraints that were placed upon him. Your Lordship recognised that. He now has nowhere to live. He cannot stay at grandmother's because of the condition of his licence and he is now sleeping rough. There has been no accommodation offered to him whatsoever. We are, of course, very concerned about that, as your Lordship will appreciate. That was one of the primary issues that prompted the application in the first place. I have not had the opportunity--
MR JUSTICE MUNBY: One of the local authority's concerns, as I recall, was what from their perspective was an unwillingness, or refusal, on the part of J, to engage in the process which might have led to him being accommodated by a particular project.
MR WISE: Regarding the Mall (?) project. Your Lordship will recall discussion about that at the end of the hearing, there was a process for applying for a place there. An application was made. We did fully co-operate with that, as we indicated in our note. Those instructing me also contacted the project themselves to see if some satisfaction could be gained by that route.
It was clear from the outset that there was going to be difficulties in J being accommodated there. In any event, there was a panel that the project meets to determine the extant applications that were before them. J's application was unsuccessful and so that proposal fell on stony ground. So no offer of a place at the Mall (?) project was forthcoming. Through no fault of my client's own, I must emphasise.
Clearly there is simply a lack of places and the project is an independent project which can, of course, choose which of the number of applicants it can take. It chose unfortunately not to take J. No further offers have been made which is a matter of very great concern, despite your Lordship's comments in the judgment.
What we would seek, therefore, in addition to the relief that has been agreed, is that a further order be made that the authority make an offer of suitable accommodation to my client within seven days.
MR JUSTICE MUNBY: Let us just take it in stages. Is the defendant authority, which, I think, is not represented or present today, on notice of the fact that you are making that application?
MR WISE: No, my Lord, because instructions were only received late this morning.
MR JUSTICE MUNBY: Mr Wise, it seems to me there are probably two quite separate reasons why it is not appropriate for me to make that order. The first is that you are effectively seeking substantive relief of an important nature, seeking to impose onus obligations on the authority and have not put them on notice. The other and separate point is this: these judicial review proceedings have now come to an end. I have given a final judgment. The order, which is in the agreed form, is plainly a final order.
As you will recall, there is the principle, which I think is first and most clearly articulated -- I cannot remember who the judge was -- in Hackney cases, to the effect that it is not an appropriate use of the judicial review procedure for the court to embark upon an ongoing process of monitoring the compliance, or, as you would have in this case, the non-compliance by a statutory authority of its public law obligations.
That is, in a sense, what you are seeking to do here. One does not want to become too technical. The fact is that if there is a basis for complaint against a local authority that in principle ought to be the subject of further judicial review proceedings. As you will be aware from previous cases in which you have appeared in front of me, while there are ongoing judicial review proceedings I take a broad and, what I hope is, a sensible view. If the case moves on, subject to appropriate amendments, I am perfectly happy to, as it were, allow the matter to proceed by amendment rather than by starting fresh proceedings. I think it is rather different in this situation.
MR WISE: So be it.
MR JUSTICE MUNBY: Moreover, the fact is that the order, which I am invited to make, does, I see, require the pathway plan to be completed by 10th May. I appreciate that is a month away. The third fact is this (and one does not want to put it in housing law terms, because everyone knows this is a leading care case and not a housing law case) your client did have accomodation which he has chosen to leave. I can understand why he may have thought it was inappropriate or undesirable, but he has chosen to leave that and he has not helped himself in the past.
I make very clear in the judgment that I made, and as you correctly say, serious strictures about the failings of the local authority. I did draw attention to the fact that your client had failed and indeed on numerous occasions refused to engage with those trying to help him at all. It is a simple fact, and, so far as I am aware, though better in Caerphilly than it would be in Tower Hamlets or Newham, Public Housing cannot simply be produced at the drop of a hat.
MR WISE: That is a a consequence of the failure to begin this process 18 months ago, as they should have done.
MR JUSTICE MUNBY: I apprecitate that. I think, Mr Wise, what it comes to is for a variety of reasons I am not going to make that order now. It seems to me that your appropriate remedy is to make your complaints known to the local authority. If it be the case that your client is sleeping rough, then in those circumstances it cannot wait for the present plan in process to conclude on 10 May. He has his remedy and no doubt you can draw to the attention of the local authority the case of application for judicial review arising in those circumstances. Applicants often make applications for interim relief which on occasions the court grants. I am not indicating that is what the court will do here, but you do have your remedy.
MR WISE: We do, of course. We were merely seeking to avoid any necessity for fresh proceedings.
MR JUSTICE MUNBY: I know, Mr Wise, but the trouble is the Sirens' song of "Let us avoid fresh proceedings," which has many attractions, and not just the fact that the legal aid fund is saved the issue fee, can so quickly turn into what Newman J in the Hackney cases characterises as a process as simply supervising a public authority. I am afraid we are all familiar with the fact that in this kind of case, which generically, in a sense, is a community care case, or technically it is a leading care case, there is a particular danger of the court getting sucked into that process.
MR WISE: We understand that.
MR JUSTICE MUNBY: You can suddenly wake up, years down the line, discovering, as I have, to draw attention to the judgment I handed down yesterday, the costs of the litigation have reached £1 million. Mr Wise, although I understand why you are making the application, I am not prepared to make an order today.
MR WISE: In one sense we are merely expressing our disappointment that the local authority have not guarded themselves and taken more effective action than they have done. There we have it.
Can we turn then to the proposed order? This is, in substance, the same as the draft which was emailed to your Lordship towards the end of last week.
MR JUSTICE MUNBY: It is a declaration that the appointment was unlawful. There is an order there to appoint a personal adviser.
MR WISE: Your Lordship will see a date specified in number 3.
MR JUSTICE MUNBY: A declaration as to past failure to comply with the legisaltion by September 2003. The previous pathway plan is no good, yes. That all seems appropriate. That is agreed by the local authority?
MR WISE: It is.
MR JUSTICE MUNBY: Yes, very well.
MR WISE: At number 8 your Lordship will also see a date inserted there.
MR JUSTICE MUNBY: For 10th May? Yes.
MR WISE: Has your Lordship seen that it is signed on behalf of the local authority, but not by Mr Williams who unfortunately could not hold this?
MR JUSTICE MUNBY: Very well. Thank you very much, Mr Wise. I will make an order in those terms, which I would now hand down to the associate, together with copies for both the court file and the shorthand writer of the judgment. There are copies of the judgment in the final approved form available both for you, Mr Wise, and anybody else who wants it.
MR WISE: I am much obliged.
MR JUSTICE MUNBY: Thank you very much, indeed.