QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(By his mother and litigation friend MP)
|- and -
|London Borough of Hackney
Ali Reza Sinai (instructed by Mary-Anne Anaradoh, legal officer, London Borough of Hackney) for the Defendant
Hearing date : 13th June 2007
Crown Copyright ©
Andrew Nicol QC :
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.
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
'(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'.
'[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.'
- '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.
Irrational decision to refuse to fund a residential school place
'…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.'
'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.
'(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.'
'(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.'
'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