England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 July 2007

Andrew Nicol QC :

1. P is a twelve year old boy who suffers from autism. He lives with his mother, MP, who is his litigation friend in this application for judicial review. The proceedings challenge the adequacy of various assessments which have been made by his local authority, the London Borough of Hackney. Central to the dispute is the issue of whether P should be placed in a residential school (as MP would wish) or whether he should continue at the H School (as Hackney and the Learning Trust, which carries out Hackney's educational functions believe should be appropriate). The Learning Trust drew up a statement of special educational needs for P in which it made clear that it thought that H School was appropriate. MP appealed against that feature of the Statement to the Special Educational Needs and Disabilities Tribunal ('SENDIST'). In January 2007 SENDIST allowed the appeal and ordered that a residential school should be substituted in Part 4 of the Statement. The Learning Trust then appealed to this Court against the Tribunal's decision (CO/1386/2007). I heard this application for judicial review immediately after I had heard that appeal. I reserved judgment in both matters.
2. I have allowed the Learning Trust's appeal and set aside the decision of the Tribunal in a judgment which should be read with this one. Although the legal issues are different, I have set out there a summary of some of the factual background which is relevant also to the judicial review. Keith J. gave the Claimant permission to apply for judicial review on 29^th March 2007. At one stage the Claimant was also given permission to add the Learning Trust as a defendant, but at the hearing on 29^th March 2007 the claim against the Trust was withdrawn and they played no part in this judicial review. I have used initials to refer to the Claimant and his mother in accordance with the order of Walker J. of 16^th March 2007 under the Children and Young Persons Act and the inherent jurisdiction of the court. He also ordered that any report of these proceedings and the Learning Trust's appeal should not identify P's schools, actual or prospective.
3. In these proceedings, the Claimant challenges what it says is a continuing failure of Hackney in relation to the following:

a. Its failure to complete an adequate assessment of his needs as required by Children Act 1989 s.17.

b. Its failure to complete an adequate assessment of MP as a carer under the Children Act 1989, the Children Act 2004, The Carers (Recognition and Services) Act 1995, The Carers and Disabled Children Act 2000 and the Carers (Equal Opportunities) Act 2004 together with various statutory guidance and policies in relation to these statutes.

c. Its failure to complete any adequate care plan in relation to either the Claimant or his mother.

d. Its failure to provide or make arrangements for services to the Claimant as a child in need and a disabled child under Children Act 1989 s. 17 and/or services to his mother as carer.

4. In the Learning Trust appeal I described how MP had been looking after her son as a single mother. She found this a strain and in 2001 or 2002 she put P up for adoption. The Claimant was placed in the care of MP's mother – JP - and in 2004 a joint residence order was made in favour of MP and JP. The Claimant stayed with his grandmother (and P's three uncles) during the week and his mother at weekends. In August 2005, JP's house was re-possessed and he went back to living with his mother full time. MP did not want her mother to continue to have responsibility for P and in April 2007 the residence order was discharged.
5. P's education began at the BL primary school. At the age of about 6 or 7 he transferred to the W School which had an Autistic Resource Base. In September 2006, by when he was 11 years old, he moved to the H School which also had a newly-established Autistic Resource Base. As I have said, the central issue in the SENDIST appeal was whether P's statement of special educational needs should continue to specify the H School for him, or whether it should specify a residential school.
6. Hackney carried out a core assessment of P's needs from late 2005 to March 2006. Primarily this was done by Hackney's social worker, Ellen Mundoma. MP says that she did not receive a copy of this assessment until 13^th June 2006. She did not agree with its recommendations and refused to sign it.
7. The core assessment was reviewed in October 2006 and an addendum to the core assessment concluded that P's needs would be best met by his grandmother with the support of the local authority. At about the same time Hackney carried out a carer's assessment of MP. Again it recommended that further work be done to establish JP's position in respect of her responsibility under what was then the joint residence order. In November 2006, Hackney carried out a carer's assessment of JP. Once more it recommended that P resume living with his grandmother.
8. Following the decision of SENDIST, Hackney completed a further core assessment on 21^st March 2007 and also prepared a care plan. These are the latest assessments. MP has not signed these either. She has though had an opportunity to see them and, while she disagrees with their recommendations, she does not suggest that the statements have inaccurately recorded her views.
9. A feature of this case is that the latest amendments to the Claim Form were made on 1^st March 2007 and thus predated the most recent assessments and care plan. As a result the Claim Form, even as re-amended, is not a wholly satisfactory source of information as to the Claimant's current complaints and challenges. Nonetheless, they appear to be the following:

a. In refusing to identify P's need for a residential school, Hackney acted unlawfully because:

i. it applied its policy of not placing children in residential schools and it thus fettered its discretion.

ii. it reached an irrational decision.

b. Its offer to provide respite care and other assistance to MP were unlawful because:

i. It proposed to do so through direct payments, although it knew that MP was unwilling to accept direct payments and care and assistance could only be provided in this way if she consented.

ii. The services which Hackney were willing to provide were insufficiently specific.

c. It persisted in proposing that JP play a part in P's care although this course was unreasonable and irrational.

Fettering of discretion regarding the placement of P in a residential school

10. There is no dispute that Hackney has the power to provide the funding for a residential school placement. Amongst the other powers and duties placed on Hackney, s.17(1) of the Children Act required it to

'(a) safeguard and promote the welfare of children within their area who are in need and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families

by providing a range and level of services appropriate to those children's needs.'

It was common ground that P was a 'child in need'.

11. Nor is there any dispute that it would be unlawful for Hackney to have an inflexible policy that it would not exercise the power to provide a residential place.
12. Ms Hughes, on behalf of the Claimant contends that that is the position. She refers to a passage in the March 2007 care plan in which the social worker, Caroline Nwakamma, said,

'[MP] wants [P] to go to a residential school where she feels that will meet his needs by providing him structure and routine he needs in a consistent way which she feels that [H] school has no resources and staffing to meet her son's needs. She feels that [P} going to a residential school will enable her to go back to work so that she is able to pay her debts. She feels that part-time job is not adequate for her to be able to meet her financial needs. [MP] said she loves her son dearly and that is why she wants him every weekend and holidays.

….

In discussion with [MP] whether she is aware of the effects of a residential school on children and young people. She said that she is aware of the effects of institutionalisation and said that the identified school is more exposed to the community life and would not have such effect on the child.

It is Hackney Children and Young People Departmental policy and my professional opinion that [P]'s needs are best met in the Community setting and there is an increase of negative experiences that will impact on his development.'

13. The care plan was counter-signed by the manager, John McShane. At the hearing, Mr Sinai, on behalf of Hackney applied to rely on a witness statement from Mr McShane signed on 13^th June 2007. Although this was opposed by Ms Hughes, she did not suggest that her client would suffer prejudice by the lateness of this evidence. In deciding to allow the statement to be admitted I also bore in mind that the allegation of fettering discretion had first been made in Ms Hughes' skeleton argument which itself was only prepared on 7^th June 2007.
14. Mr McShane is the Team Manager in the Children with Disabilities team in Hackney Children and Young People Services. He says that it is not the case that Hackney has a policy of refusing residential placement for children with disabilities. He says that Hackney does joint fund residential school placements for disabled children when their needs require this. However, there are risks in caring for young people away from their homes. Young people who have been cared for in this way are over represented among the homeless, people with poor academic achievements and who suffer from mental health problems or substance abuse. Children from cultural and ethnic minorities are less likely to have their cultural needs met if they spend a large proportion of their lives away from him. He says that Hackney invests significant resources to enable children to live with their families. However, if a need for a residential placement is identified, it is provided. The Claimant, though, was not assessed as requiring a placement to meet his needs.
15. After the hearing Ms Hughes pursued her request for a copy of Hackney's policy. While Hackney considered that it was a confidential document and not prepared to produce it voluntarily, it advanced no reason of public interest immunity or the like as to why its production should not be ordered. On the contrary, it said that it would be willing to produce it if so ordered. I considered that the policy was relevant to an issue in the proceedings and that it was preferable that the Court (and the Claimant) should see first hand evidence of its content, rather than relying exclusively on the indirect evidence of Mr McShane and Ms Nwakamma. I directed that it should be produced and the relevant extracts of the document in question ('The Way we Do Things Here (Children's Social Care: London Borough of Hackney Children and Young People's Services') were provided. I received written submissions from ms Hughes and Mr Sinai in relation to them.
16. I will turn in a moment to the allegation that the assessment of the Claimant's needs was irrational. However, the policy itself and Mr McShane's evidence puts an end to the allegation that Hackney fettered its discretion. It is not unlawful for a council to have policies: the illegality arises only if the policies are applied rigidly with no regard to individual circumstances. The policy itself does not appear to deal specifically with the issue of placement in residential schools. It does include the following statements

'Children should be maintained within their own family with the assistance of family support services when necessary, unless there are clear reasons why this is not consistent with their safety and well being.'

'The development of a working partnership with parents is usually the most effective route to meeting children's needs and maximising participation is encouraged whenever possible.'

'Those children unable to live with their birth families have a right to proper care within a substitute family, although residential care may offer a positive choice for a small number of children.'

These are far from being the type of rigid policy which constitutes a fettering of discretion.

17. Nor, on Mr McShane's evidence, is that the way that Hackney's policy towards residential placements operates in practice. The phrase in the Care plan is not very easy to understand, but I do not think that it evidences a rigid policy. As Mr McShane also says, the care plan should be read as a whole. The overall impression is certainly not of a decision that was taken by the mechanical application of a rigid policy and blind to the needs of the individual.
18. This ground of challenge is not made out.

Irrational decision to refuse to fund a residential school place

19. Ms Hughes argues that Hackney could only have lawfully concluded that it should have exercised its power to fund a residential school place. She argues that the educational, emotional, behavioural and social elements of the case all point in that direction and, coupled with the council's neglect to provide support in the past, a residential placement was the only option.
20. It is elementary that on an application for judicial review, this Court does not conduct a review of the merits of the decision under challenge. The position of SENDIST when it hears an appeal is quite different. On a judicial review the Court can only interfere if the decision is unlawful. That will, of course, include the taking of an irrational decision. As Munby J. said in R (P,W, F and G) v Essex County Council [2004] EWHC 2027 (Admin) at para 32

'…the primary decision maker is the ….Council and not the court. The court's function in this type of dispute is essentially one of review – review of the …Council's decision, whatever, it may be – rather than of primary decision-making. It is not the function of the Court itself to come to its own assessment of what is in the children's best interests.'

21. The core assessment that was completed in March 2007 was compiled after interviews with (amongst others) P and MP and with a representative of H School. It recorded in detail MP's views that P should be placed in a residential school and why. P's size, age and weight and his outbursts of aggression meant that it was becoming increasingly difficult to control him outside of the home. MP thought that a residential school would be able to provide the structure and routine which he required. She thought, as I have mentioned above, that the particular school she had in mind was more exposed to the community and would not have the effect of institutionalising him. However, the social worker remained concerned at the risks involved in a residential placement including abuse and bullying. The social worker had observed a warm and loving relationship between P and his mother although she thought that MP's capacity to manage P's care needs was fragile and she would need support and services to enable her to cope. P had spoken positively about H School and the opportunity he has with his mother and the school to explore community resources such as swimming, bus ride, cinema etc.
22. The social worker had also spoken to one of P's uncles. He said that the family had backed off from MP because of her wishes to send P away. He said that JP was willing and capable to care for P if she had suitable accommodation but that MP had stopped looking for a property because MP accused her of trying to use P to get accommodation. She has desisted to avoid having continued conflict with her daughter. Although P had not seen his grandmother for some time, it was remarks such as this which led the social worker to hope that other family members, including P's grandmother and uncles might at some stage in the future provide some support and respite for MP (in addition to help provided by Hackney).
23. The Care Plan proposed that P would receive 2 overnight respite breaks per month whilst at H School, 5 weeks play scheme for the summer holiday and 1 week Easter holiday, after school club at H school, referral (if MP agreed) to a Play Centre / After school and Saturday club. In a letter from the Council of 6^th June 2007 it was said that 5 days after school club was thought to be too tiring for P. However, direct payments at the rate of £10.60 per hour would be provided for 6 additional hours per week. This would be increased during the school holidays.
24. Ms Hughes relied on the judgment of Crane J. in R (LH and MH) v London Borough of Lambeth [2006] EWHC 1190 (Admin) [2006] 2 FLR 1275. This was also a judicial review of a core assessment and care plan in relation to an autistic boy whose problems were compounded by epilepsy, asthma and chronic constipation. In essence, the judge found that Lambeth had not approached their task systematically. In that case LH's behaviour at home had been problematic but the assessment and care plan had been deficient because they failed to identify clearly what was required to meet those needs. The mother in that case also wanted her son placed in a residential school. Crane J. said at para 66

'It is not for the court to decide between a residential placement and support for LH and MH at home. There are rational arguments against a residential placement. However, to conclude that a so-called 'package of support', much of which remained to be identified, was to be preferred to a residential placement was seriously flawed and, particularly in the light of fitful attention to the central problem, irrational.'

Ms Hughes submits that the same criticism can be levelled at Hackney in the present case.

25. I do not agree. In this case, the Council did seek to identify P's needs (and also those of MP as his carer). P's behaviour was not, or other than occasionally, problematic at home (by contrast with LH in the Lambeth case). It was while he was outside the home that it caused difficulties and a strain on MP. The measures adopted in the care plan were logically addressed to that situation. Ms Hughes argues that in this case as well much of the 'package of support' remained to be identified. I do not agree that any outstanding matters justified in this case the degree of criticism that Crane J. had made of Lambeth. The Care plan itself specified some of the activities and support which would be provided and this was supplemented by the letter of 6^th June. There is an outstanding issue as to services which the Council itself might provide in place of services commissioned by MP and paid for by the Council through direct payments. I return to this below. But the shape of the package of support, its purpose and much of its detail are set out in the care plan. The facts of the present case are, unsurprisingly, just different from those which were being considered by Crane J.
26. I note that even on the facts of the Lambeth case, the judge was careful to say at para 67 that he was not saying that it would be necessarily irrational to conclude that a fully considered 'package of support' was a proper response to LH's needs.
27. Ms Hughes argues that the history of the matter shows that Hackney acted irrationally in focussing for so long on the possibility that JP might accommodate P (this is the issue to which I referred in paragraph 9(c) above). JP, she said, was obviously in frail health as shown by her receipt of higher level disability living allowance. She had not seen P for many months and had not, 18 months after her home had been re-possessed, taken active steps to find another. When P had been living with JP previously, his uncles had also been present and been able to share in his care whereas they now lived separately from JP. In one sense, this is only of historical relevance. The witness statement of ms Nwakamma of 26^th March 2007 makes clear that Hackney does not currently suggest that it is feasible for P returning to live with his grandmother. However, I would not categorise its previous proposals on these lines as irrational. P had got on well when he had lived with his grandmother: his trouble at school coincided with his return to live full time with his mother. JP had been enthusiastic to become re-involved with helping her grandson and the social workers had had reports from JP's general practitioner which supported the view that this would not have put her health at risk. She had been on Higher Level Disability Living Allowance when P had lived with her previously. Furthermore, as I have mentioned above, one of P's uncles had said in March 2007 that he and JP had 'backed off from MP because of her wishes to send P away.' It is not necessary to investigate the truth of these claims, but they were matters which the social worker was entitled to take into account.
28. Hackney was, of course, aware of the decision of SENDIST. It was this which triggered the 2007 core assessment. I do not think that the Tribunal's decision assists the Claimant in establishing that Hackney's decision in relation to residential placement was irrational. On the Learning Trust's appeal, I have found that the Tribunal's decision was legally flawed. The Tribunal was critical of Hackney's support, but Hackney had not been represented at the hearing and the assessment which was carried out in February and March 2007 gathered information which was not before the Tribunal.
29. Overall, on the facts of the present case, I reject the contention that Hackney was acting irrationally in its conclusion that it would not support a residential place for P.

Direct Payments

30. Section 17A was originally inserted into the Children Act 1989 by the Carers and Disabled Children Act 2000 s.7(1). It is now in a form which was substituted by Health and Social Care Act 2001 s.58 and provides in subsections (1) and (2)

'(1) The Secretary of State may by regulations make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person's consent, such payments to him as they may determine in accordance with the regulations in respect of securing the provision of the service mentioned in that subsection.

(2) A person falls within this subsection if he is (a) a person with parental responsibility for a disabled child …

and a local authority (the responsible authority') have decided for the purposes of s.17 that the child's needs … call for the provision by them of a service in exercise of functions conferred on them under that section.'

31. The Community Care, Services for Carers and Children's Services (Direct Payments) Regulations 2003 SI 2003 No. 762 have been made under this provision. Regulation 3 (with immaterial qualifications) defines a person to be of a prescribed description if 'he is a person who appears to the responsible authority to be capable of managing direct payment by himself or with such assistance as may be available to him.'
32. Regulation 4 then provides:-

'(1) if the conditions in paragraph (3) are satisfied, a responsible authority must make in respect of a prescribed person who falls within…subsection (2) of 17A of the 1989 Act such payments (direct payments) as are determined in accordance with regulation 5 in respect of his securing the provision of a relevant service.

(2) In this regulation a relevant service means –

….

(b) a service under s.2 of the Carers and Disabled Children Act 2000; or

(c) a service which they may provide in exercise of functions under s.17 of the 1989 Act (provision of services for children in need, their families and others).

(3) the conditions referred to in paragraph (1) are that –

(a) the responsible authority are satisfied that the person's needs for the relevant service can be met by securing the provision of it by means of a direct payment; and

(b) in the case of a relevant service mentioned in paragraph (2)(c), the responsible authority are satisfied that the welfare of the child in respect of whom the service is needed will be safeguarded and promoted by securing the provision of it by means of the direct payment.'

33. Regulation 5 makes provision for calculating the amount of the direct payment. As the 2007 Core assessment recorded, MP is on income support. She therefore falls within s.17A(5) of the Children Act 1989. In accordance with subsections (4) and (5) of s.17A, regulation 5(4) provides that the payment shall be at the rate mentioned in s.57(4)(a) of the Health and Social Care Act 2001 and s.57(4)(b) shall not apply. The effect of this rather convoluted drafting is that the direct payment must be at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned and may not be subject to a condition that MP reimburses the authority part of the costs.
34. Ms Hughes argues that s.17A makes clear that direct payments could only be used with the consent of MP. MP does not consent and has made this clear on several occasions. It is unreasonable for Hackney to continue, even as recently as 6^th June letter to continue to propose the use of direct payments. Instead Hackney should be providing the services themselves. MP is not obliged to give her reasons for not wanting to use direct payments, but in fact she has. In her 5^th witness statement dated 26^th March 2007, MP says that she spoke to the Shaw Trust who administers direct payments on behalf of Hackney. She had been told that she would be liable to pay tax and national insurance on any money paid to the carers and that she could not afford to do this out of her income support. In submissions, Ms Hughes added two other objections to the use of direct payments. The first is that it would put the onus on MP to find an appropriate person and she was unsure that she would be able to do this. Secondly, she was concerned about the insurance position. P had outbursts of temper and aggression. If he harmed the worker, MP was concerned that she might be exposed to liability.
35. Hackney acknowledges that the legislation makes direct payments dependent on the consent of the person concerned, but submits that refusal to consent cannot be for irrational reasons. The Shaw Trust manages carers through the direct payment system and avoids the need for carers to be employers themselves. MP is being unreasonable in maintaining her refusal to use direct payments. The Council is taking steps through Hackney Family Backup Ltd to find a suitable respite carer itself, but as their letter of 11^th June 2007 said, they have not yet been able to identify a carer with appropriate experience to meet P's needs.
36. I agree that the use of direct payments is dependent on the consent of the person concerned. Section17A(1) only authorises the Secretary of State to make regulations which incorporate that condition. On their face the 2003 Regulations are deficient because they do not do so. However, Hackney did not suggest that it was obliged to make direct payments even in the face of MP's opposition. They were right not to do so. It is proper to interpret the regulations in the light of their enabling statute and to treat the duty in regulation 4 as implicitly subject to the consent of the person concerned in s.17A(1) of the Children Act (or, as the case may be, s.57(1) of the Health and Social Care Act 2001 which likewise makes direct payments under that provision dependent on the carer's consent).
37. On the other hand, I do not agree with Ms Hughes' submission that direct payments can only be offered with the consent of the person concerned. If the conditions in regulation 4(3) are satisfied the authority is obliged to make direct payments. They cannot, for the reasons which I have given, be under a duty actually to make the payments in the face of opposition from the person concerned, but I do not see that this also precludes them from making the offer of direct payments. If they have come to the views referred to in regulation 4(3) it would be sensible for them to do so.
38. As I set out, above, the amount of the direct payment must be at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned and may not be subject to a condition that MP reimburses the authority part of the costs. In the case of a person on income support there ought not to have to be any additional payment either made directly to the person providing the service by the carer or by way of reimbursement to the authority. The reasonable cost of securing the provision of the service concerned would seem, in the context of the present case, to include either the provision of insurance to cover liability for any injury caused to the service provider by P or possibly an indemnity against such liability by Hackney or assistance in constructing an arrangement (if that was possible) whereby MP would not be exposed to such a liability. What the regulations require the authority to pay is its 'reasonable estimate' of the costs in question. I am unclear on the evidence in this case as to whether Hackney's estimate of £10.60 by way of direct payments would leave MP with further sums to pay, whether in the form of income tax, national insurance or insurance liability premium. MP says that she was left with the impression after her discussions with the Shaw Trust that it would, but there is nothing more direct from the Shaw Trust or Hackney. On the present state of the evidence, I cannot conclude either that Hackney's proposed payment was insufficient in amount or (on the other hand) that MP was raising unreasonable objections in this respect.
39. In these circumstances it is not strictly necessary for me to decide whether the person concerned has an unqualified right to refuse consent to direct payments. I have set out above the conditions which must be fulfilled before an authority has a duty to make direct payments. If the prospective recipient does have a reason to believe that the needs cannot be met in this way or (in the case of a child) that his or her needs will not be safeguard or promoted by the use of direct payments or that the proposed amount is an unreasonable estimate of the cost of providing the services, the expectation of the statute and regulations is no doubt that these concerns will be articulated and a dialogue take place between the authority and the carer. As the Direct Payments Guidance from the Department of Health says at para 44

'Councils should establish that there is an understanding of what is involved in managing the direct payment. This is an area where people may particularly welcome support. Obtaining consent might be a process involving continuing discussion rather than a single event.'

In this case, both the Council and MP will be aware that the alternative of the authority itself providing the services may take longer to arrange. As the letter from Hackney Family Back Up shows, carers with the right experience may be hard to find. This is not to say that Hackney will have an indefinite amount of time to find them. But in deciding whether Hackney has exceeded what would be a reasonable time, the Court may well have to take into account whether the objections which MP raises to the direct payment alternative have been reasonable or arbitrary and, if reasonable, whether they have met a reasonable response.

Lack of specificity in respite provision

40. I do not accept that Hackney has behaved unlawfully in this regard. In a note provided to me after the hearing, Ms Hughes refers to the letter of 6^th June which said that 'The authority will increase the direct payment allowance during school holidays.' The additional amounts would need to be crystallised in due course, but there is no evidence that Hackney has unreasonably refused a request to be more specific. MP's stance has been, after all, that she is not willing to use direct payments in principle. In the course of the hearing, Mr Sinai said that there could be further discussion over specifics if MP wished.

conclusion

41. None of the grounds of challenge succeed and this application for judicial review is dismissed.