England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/07/2007

Beatson J :

1. This is a renewed application for permission to apply for judicial review by Mr NH acting for the claimant, his daughter, SH who is now 16 years old. At the conclusion of the hearing on 12 June I stated that I would be refusing permission but, in view of the disorganised state of the voluminous material put before the court by Mr NH in the fifteen months since he filed his application, would hand-down judgment.
2. The application was filed on 10 February 2006. The claimant seeks permission to challenge failures by Camden LBC, Camden Primary Care NHS Trust, and the Secretary of State for Health. Form N461 states that the decision to be reviewed is "persistent failure" to deliver "a planned appropriate contiguous and cost-effective programme of prophylactic and remedial treatment to a child developing disadvantaged by encephalomalacia". The failure is stated to be a continuing one from the time SH was diagnosed hemiplegic in 1992. The North Central London Strategic Health Authority, the Royal Free Hospital, and University College London Hospital are named as Interested Parties.
3. Permission to seek a judicial review was refused on the papers on 7 July 2006. Silber J stated that he did not identify any duty imposed on the Defendants or any arguable point of law in the claim. At that stage there was technically no evidence in support of the claim because, although a number of documents were submitted, there was no statement by Mr NH or by anyone else. Both before and after Silber J's decision Mr NH sent a number of lengthy emails to the Administrative Court Office. These amplify matters in the claim and the documents previously submitted and also make further assertions.
4. The application was renewed on 17 July 2006. The grounds for renewing it were formulated by reference to certain public services referred to in a document dated 12 July 2006. It is stated that the Defendants wilfully and persistently failed to comply with their duties to deliver public services referred to free of charge in a non-discriminatory manner, unlawfully withdrew free treatment on several occasions and "wilfully aggravated" these breaches of duty by "illegal public office record fabrication", "scurrilous traducing distributed defamation" of the Claimant's parent and blacklisting the Claimant.
5. On 11 January 2007, the day before the hearing of the renewed application, Mr NH sent an email to the Administrative Court Office stating that he had not yet been able to interview a witness misrepresented by the defendants and that the Court Office had not responded to a request for an adjournment by him. When the matter came before Forbes J on 12 January 2007 it was adjourned. In his revised application filed on 30 May 2007 Mr NH states the adjournment was granted to enable Camden LBC to answer questions raised by important information given to him by an employee of University College Hospital that morning. The information was that, if a child is referred to the hospital by a GP, then if the PCT is willing to pay, treatment is delivered.
6. The present proceedings are not the only proceedings concerning "remedial/prophylactic neurodevelopment treatment" for the Claimant. Mr NH brought a claim on his own behalf in the County Court (claim 6CLO2924) in respect of the cost of such treatment. On 24 October 2006 the District Judge struck out the claim. HHJ Bailey granted permission to appeal on 26 January 2007 but dismissed the appeal on 4 May 2007. Mr NH has filed a notice of appeal to the Court of Appeal.
7. In 2005 Stanley Burnton J refused Mr NH permission to impugn a decision of the Social Security Commissioners refusing leave to appeal against a decision of the Tribunal apparently concerning child benefit: see Hughes v Social Security Commissioners CO/2993/05, 10 October 2005. In the course of those proceedings Mr NH sought to join twelve new parties, including Camden LBC, the Royal Free Hospital NHS Trust, the Healthcare Commission and the Department of Health alleging failures to perform their duties to his daughter. Stanley Burnton J stated the facts were insufficiently particularised and it was not possible to ascertain from the assertions of breach of duty what the nature of the case was. During the hearing Mr NH stated that a claim to the European Court of Human Rights in respect of that matter is pending.
8. The adjourned application in the present application next came before the court on 30 March 2007. At that hearing I again adjourned it, primarily pending the outcome of the appeal in the County Court, but also notwithstanding the history of the case, in order to give Mr NH a final opportunity to clarify the nature of his case, to provide evidence, and to organise the documents.
9. To this end I made a number of directions. Mr NH was directed to show either that he has provided the appropriate form under CPR 21.4 to be his daughter's litigation friend or taken such other steps to ensure that he is properly in court on her behalf. He had said that he had provided the form but one was not found on the court file and he has since provided another form. Mr NH was also directed to reformulate the claim identifying, to the best of his ability, the breaches of duty alleged. My understanding at that time was the claim against Camden LBC was a failure by the council to assess the Claimant's needs. I directed that the claim specify, to the best of Mr NH's ability, when the council was requested to make such assessments, whether the assessments took place at all, or whether it was alleged that any assessment or assessments were unlawful. My understanding of the claim against the Primary Care Trust and University College London Hospital was that they failed to deliver treatment. Taking account of what Mr NH said were difficulties about particularising dates, I directed that, so far as he was ble to, he should state when requests for treatment were made, and when, and the circumstances in which they were refused. I have referred to the fact that there was, at that stage, technically no evidence in support of the claim before the court. In view of this I directed that Mr NH should make and sign a short statement setting out the facts and exhibiting the documents upon which he relies. I directed that the documents should be organised in a systematic way, arranged by reference to the different grounds and the various defendants. Finally, I directed that a copy of all papers filed be served on all defendants.
10. On 30 May and 4 June 2007 Mr NH filed documents setting out the application, the decisions to be reviewed, the orders sought, the evidence in support of the application and the legal submissions. Reference was made to the following statutes: Human Rights Act 1998 and Article 2 of the First Protocol to the European Convention, National Health Service and Community Care Act 1990, s47, National Health Service Act 1977, ss. 1(1) and 3(1), Chronically Sick and Disabled Persons Act 1970, National Assistance Act, s. 29, Disabled Persons Act 1986, ss. 5-6, Children Act 1989, s.17 and Schedule 2, Carers (Recognition and Services) Act 1995, Disability Discrimination Act 1995, Education Act 1996, s 312 (in relation to special educational needs), Carers and Disabled Children Act 2000, and the Special Education and Disability Act 2001. He also sought to amend his claim by the addition of a claim for restitution pursuant to CPR 54.3(2) in respect of the cost of securing the neurodevelopment programme and damages for negligent misrepresentation.
11. The matter was listed before me on 12 June. On 11 June Mr NH filed a document containing additional submissions, a commentary on a note of the hearing before HHJ Bailey at the Central London County Court on 4 May 2007 by Hempsons, a private referral of the Claimant by her GP, and a copy of an email indicating that the Claimant's fathers email address was blocked by Camden LBC. At the hearing I requested copies of Hempson's note and any documents relied on by Mr NH in support of his allegation that emails from the Claimant were also blocked by the council. I have since received these.

The Background

12. It is clear that Mr NH is a devoted father with a clear view as to the therapeutic needs of his daughter. It appears that the Camden Social Services have been involved in SH's case since the autumn of 1992. The documents record many communications with the Social Services Department, consultant doctors, the family's GP, the Camden and Islington PCT, and the Bobath Centre in North London about SH's hemiplegia and the need for therapy if SH is not to lose function.
13. The documents and Mr NH's annotations to them show both his persistence and devotion to SH but also that there are differences of opinion between clinicians as to the efficacy of intervention for example of the sort undertaken by the Bobath Centre on children with cerebral palsy: see, in particular, a letter dated 10 March 2004 from Professor Gardiner, a paediatric consultant at University College London Hospital to Mr Larkman the Chief Executive of the Camden Primary Care Trust. Notwithstanding those differences of opinion, at that stage Professor Gardiner considered that a measurable benefit to SH might well be achieved by further application of the Bobath method together with orthotic support. He recognised that other professionals might honestly hold a quite different view and that priorities as to the allocation of scarce resources might also be a factor. He recommended a period of such support together with an independent and objective measurement of its efficacy.
14. The origin of Mr NH's dispute with the Camden Social Service Department appears to be in 1995, almost a decade before Professor Gardiner's letter. It lies in the apparent refusal by Camden Social Services Department to give assistance to SH as a disabled child or a child disadvantaged by cerebral palsy because she was not at risk. It appears that Mr NH sought assistance from Camden Social Services in the autumn of 1995. In September 1995 Chrystine Payjack conducted an assessment under the Children Act 1989 of SH's needs which was completed by November 1995: see her letter dated 21 September 1995 to Mr Pinder at SH's school and Mr NH's letter dated 1 November 1995.
15. Correspondence between a trainee solicitor and Mr NH in November and December 1995 suggests that consideration was being given to instituting proceedings against the council in respect of its failure to provide SH with an appropriate level of support but that the sum granted by the Legal Aid Board to obtain an educational psychologist's report was insufficient. There is no document from the council setting out the basis on which they refused to provide support. Mr NH's letter dated 1 November 1995 refers to a letter from Ms Payjack dated 30 October but that is not contained in the bundle. At this distance in time that is not surprising. In any event, any application for judicial review based on decisions made at that time or during the next decade are hopelessly out of time.
16. Turning to 1996, the documents show contact between Janet Llewellyn, a senior paediatric physiotherapist at Camden and Islington NHS Trust and Dr Bellman, a consultant paediatrician at the National Temperance Hospital: see letter dated 22 February 1996. Ms Llewellyn refers to the fact that although SH was functioning at a reasonable level, over time the nature of hemiplegia implied that her asymmetry could be expected to worsen and her development to be compromised. Ms Llewellyn considered she should have a named physiotherapist and a programme of exercises to promote optimum development and inhibit asymmetry. A letter dated 28 July 2006 in response to a direction by the District Judge in the County Court proceedings brought by Mr NH that the council provide further information states that an assessment into SH's needs related to her condition was carried out in 1996 and that she was assessed on 5 November 1996 at her school by Janet Llewellyn but not by a paediatric neuro-development consultant. Linda Scipioni, team manager of Camden's Children, Schools and Family Department, states in her evidence in support of the council in the County Court proceedings that in September 1996 Camden advised Mr NH that SH was not eligible for registration on Camden's register of children with a disability. There is correspondence during 1997 from which it appears that as a result taken by Camden and Islington Community Health Services NHS Trust, the Community Trust rather than the University College London Hospitals would be providing new or replacement special footwear or appliances for children. Mr NH criticises the NHS for this change in the treatment arrangements.
17. A letter from the Bobath Centre dated 12 September 2000 records that SH is on its waiting list. There are reports from Bobath of treatment for periods between April and June 2002 and August and September 2004 and of progress. As for other professionals, it appears that, in a letter dated 17 January of 2003 Karen Townsend, Camden Primary Care Trust's Director of Specialist Community Services wrote to Mr NH stating that the council did not consider that SH required individual or regular input but that Maureen Alcock, the Senior Paediatric Physiotherapist with responsibility for children in secondary mainstream schools agreed to monitor her each term. The letter is not in the documents before the court but is referred to in a letter dated 4 October 2004 by Doctor Julian Fulbrook, the Trust's convenor, dismissing a complaint made by Mr NH. A handwritten letter from Mr NH to his GP Doctor Shina dated 5 August 2003 suggests that Mr NH's complaint was made before then.
18. On 13 January 2004 Karen Townsend asked Professor Gardiner to undertake an independent assessment of SH's needs. She stated she did so because of Mr NH's disagreement with the decision of the therapists involved with SH's care that, given the degree of her impairment there was no clinical justification for individual or regular physiotherapy input. Ms Townsend asked Professor Gardiner to advise the Trust as to whether there was any further treatment or support that can be offered. Professor Gardiner's response to this request is in the letter dated 10 March 2004 to which I have referred in which he recommended a period of support with an independent measure of its efficacy.
19. I have referred to the fact that Dr Fulbrook considered Mr NH's complaint. In Dr Fullbrook's letter dated 4 October 2004 he reviewed the position and the views of the therapist involved with SH. He also reviewed and Mr NH's complaint about the terms of Ms Townsends' letter to Professor Gardiner. Mr NH had inter-alia complained about the description of SH as presenting with "a very mild right hemiplegia". Dr Fullbrook concluded that Ms Townsend had acted professionally and the contents of her letter were based on information obtained from the therapists involved with SH.
20. Doctor Fullbrook also referred to " a bombardment of emails" circulated by Mr NH "using a torrent of inappropriate and defamatory language", including accusing the PCT of a "defensive record fabricating device" and "disreputable and wilfully negligent conduct", and accusing Ms Townsend of being "wilfully negligent", "socio-pathetic" and a "rat-brain". Dr Fullbrook complained that Mr NH was engaging in a vexatious and frivolous campaign. Mr NH has criticised this letter as containing administrative record falsifications and describing Doctor Fullbrook as a bogus doctor.

The 2005 request for assistance

21. In 2005 Mr NH again requested assistance for SH because of her condition. He wanted a neurological specialist to assess her and for the council to provide financial support for activities which he considered would be of therapeutic benefit, including dance classes. There is, however, no record of this request in the documentation, for example a copy of a letter from Mr NH or a reply from the council. The only reference to it in the documentation is Linda Scipioni's witness statement made in the County Court proceedings.
22. Mr NH has criticised Ms Scipioni's statement as misrepresenting the position and as containing falsehoods and deliberate falsification. In relation to Mr NH's request in 2005 Ms Scipioni states that a further assessment was carried out. An appointed social worker liaised with SH's GP and her school, and also spoke directly to SH. Ms Scipioni's statement is dated 16 October 2006.
23. Mr NH also criticises the council's defence in the \county Court proceedings, dated 2 May 2006 in similar terms. In its defence, the council states that SH's GP "has no outstanding concerns about her condition" and that her school report stated that she managed well and did not require additional support. Ms Scipioni's statement provides evidence in support of the latter but not the former. Her statement said only that SH's GP "did not identify any further treatment that was required and outstanding". Dr Shina, in a note dated 10 January 2007 stated in relation to the pleaded defence, that it is not correct to say he had no outstanding concerns about SH. SH's head teacher in a letter dated 16 January 2007 stated, of the statement in the councils defence that SH did not require additional support that she "is on the Special Needs Register as school action plus for her disability. This reflects the fact that she did need some additional support at that time, although not a full statement of special needs. These inaccuracies in the council's pleaded defence, however, fall far short of the deliberate fabrication alleged by Mr NH. There is no document before me as to what the school's view about SH was in May 2006, the date of the defence. Moreover, it is relevant that Miss Scipioni's statement that in the conversation she had with SH, SH said she did not believe she needed additional support is consistent with the Bobath report dated 3 September 2004.
24. I have referred to Dr Fullbrook's comments about the tone of Mr NH's communications to the PCT and its staff. In a letter dated 20 May 2005, Mr Sowter, Head of Customer Services and Complaints at Camden Social Services, wrote to Mr NH about what he described as Mr NH's "practice of sending lengthy and repetitious e-mails setting out your personal views and observations on matters of a general interest to you". Mr Sowter stated that the Council did not consider the communications warranted specific consideration or reply and requested Mr NH to desist in sending them. Mr NH stated at the hearing that this letter was a response to a request by him for a law-abiding assessment of his daughter by the Council. The terms of that request are not before the court.

The section 47 investigation

25. The immediate cause of Mr NH's decision to institute judicial review proceedings on behalf of SH may have been a decision by the Council to undertake an investigation under section 47 of the Children Act 1989 because of its concern about Mr NH's mental health in the light of his behaviour. In a letter dated 21 October 2005, from Joanne Smith, Senior Practitioner, the Duty Social Worker, his behaviour is described as "presenting as eccentric" and stating that the Council was concerned about the impact of his behaviour on his children and as to whether he had mental health difficulties. Joanne Smith, a senior practitioner in the Council Social Services Department, circulated Ms Hughes's request for a network assessment. Mr NH had previously refused to allow a Social Worker to speak to SH alone and she was seen at school on 9 February 2006 pursuant to the council's statutory powers. Mr NH filed the application for Judicial Review on 10 February 2006.
26. In a letter dated 13 February 2006, Kristi Gordon, one of the Council's social workers, wrote to Mr NH informing him that the investigation had not disclosed any concerning information. The letter stated that SH considered she had a very positive relationship with him and had no concerns about her home or school life, and that the file was now closed. Mr NH considers that this letter shows irrefutable evidence of unlawful decision making by the Council. In the reformulated application filed on 30 May 2007 he states that he filed his application for Judicial Review in response to Kristi Gordon's letter but since the letter was dated three days after the application was filed, he must be mistaken about this.

Analysis

27. An application for Judicial Review must be brought promptly and in any event within three months of the decision under challenge. I have stated that any challenges to decisions prior to 2005 are hopelessly out of time. Moreover, any challenge to the decision that SH is not eligible for inclusion on Camden's Register of Children with Disability does not get off the ground substantively. This is because it is not supported by evidence. Mr NH maintains that the decision was made because, notwithstanding her hemiplegia, she was not 'at risk' but there is no evidence before me as to what Camden's criteria were and why they are arguably unlawful. As far as complaints about the conduct of the Trust are concerned, most of these are also considerably out of time. It is not arguable that the decision by the Community trust to handle the provision of footwear and equipment to children itself rather than in a hospital was one which the Trust was not entitled to make.
28. The decision in 2003 by the senior paediatric physiotherapist dealing with SH that, given her degree of impairment, there was no clinical justification for regular or individual physiotherapy is not arguably unlawful. Professor Gardiner referred to the division of opinion as to the efficacy of intervention on children with cerebral palsy by treatments such as those from the Bobath Centre. In a situation where clinicians might take different views as to the way to manage a condition, it is not arguable that the adoption of one alternative view rather than another is unlawful because the patient's father strongly disagrees. What is required to show arguable unlawfulness is the adoption of a view which is arguably a view that no reasonable clinician could have. Professor Gardiner's letter dated 8 March 2004 to Mr Larkman at the Trust constitutes a complete answer to any claim at that stage.
29. With regard to the allegation that no lawful assessment was carried out in 2005, the relevant statutory provision is the Children Act 1989, section 17(1). That section sets out duties of a general character and an assessment of a child's needs pursuant to section 17 does not crystallise the general duty owed under section 17(1) so that it becomes a specific duty owed to a particular child: R(G) v Barnet LBC [2003] UKHL 57. Notwithstanding the apparent confusion about the status of SH's educational special needs, it has not been suggested that she is unable to access the curriculum because of her hemiplegia. Her clinical needs have been considered by both paediatric physiotherapists and consultant medical practitioners and, for the reasons given, the Council's assessment in 2005 that her needs were currently being met is not arguably unlawful.
30. Mr NH's bundle contains a number of documents concerning referrals this year. In a letter dated 5 January 2007, Dr Stevenson, a Consultant Neuroligist at the National Hospital stated to Professor Gardiner that SH has lost some functions and that he considers through exercise some of this could be regained. He notes that SH finds it difficult to motivate herself to do her exercises and that they would best be incorporated into activities she finds enjoyable such as dancing, cooking and karate. He states that his team would ask the Camden community children's physiotherapy team to reassess SH's home exercise programme. He recommended a community occupational therapy review in conjunction with physiotherapists. He said the review should look specifically at the benefits of additional equipment in maximising SH's ability to incorporate both hands into tasks such as using a tin opener.
31. In February and March 2007 SH saw Kathryn Phillips, an occupational therapist at the Hand Therapy Clinic at UCH. Ms Phillips stated that as well as a splint, SH could also have a functional dynamic support to wear during the day. It appears from a letter dated 18 April 2007 from Professor Gardiner to Dr Shina, the GP, that this is now being explored. Ms Phillips had recommended that Mr NH contacts Scope's CP service but he was not keen to have contact with that service for personal reasons.
32. Mr NH has annotated the letter dated 5 January 2007 from Dr Stevenson and others. He states that the recommendations that the physiotherapy team reassess SH and that there be a community occupational therapy review in conjunction with the physiotherapists, have been completely ignored by Camden. It does not, however, appear from the letter that a copy was sent to Camden. Nor is there any evidence before the Court that the matter has been put to Camden or that Camden has declined to act in the light of this letter. Mr NH's annotations are no substitute for evidence.
33. Mr NH has applied to amend his claim to include a claim for restitution in respect of the expenses he will incur as a result of the defendants unlawful failure to deliver appropriate therapy to SH. In the absence of an arguable public law claim, it is not possible to seek restitution under CPR54. In any event, this claim was part of the subject of the County Court proceedings.
34. In conclusion, despite having been given every opportunity to formulate and particularise his complaints against the Council and the Primary Care Trust, Mr NH has utterly failed to demonstrate an arguable case. The lengthy e-mails he has sent to the Court contain allegations of deliberate record fabrication, falsification, and misrepresentation. He refers to 'routine coordinated and/or ad hoc deception of the Court'. He does not, however, begin to establish these serious charges. It is true that in its defence to the County Court proceedings the Council misstates the position of the GP and appears not to understand the significance of a child who has not had a statement made being on a special needs register. Moreover, Mr Ogunlende, who appeared on behalf of the Council on 30 March and 12 June submitted, on instructions, that the Council had not been served although Mr NH had filed Certificates of Service with the Court. At the June hearing Mr NH showed the Court and Mr Ogunlende acknowledgments of service which appeared to have been signed by Council employees and Mr Ogunlende stated that in view of those he could not maintain the objection that the council had not been served. But these failings do not show arguable illegalities in relation to the clinical assessments of the treatment SH needed, let alone fabrication and falsification.
35. No doubt the Council and its employees and the PCT and its employees lost patience with Mr NH as a result of the volume of communications by him and their intemperate nature. This is understandable. Public servants should not have to put up with such behaviour. But none of this is the fault of SH, a young girl who is entitled to receive appropriate support from her local council and Primary Care Trust. In view of the consultations with Dr Stevenson and Ms Phillips and their recommendations for an assessment to look specifically at the benefits of additional equipment in maximising SH's ability to incorporate both hands into task and functional dynamic support during the day, it is to be hoped that, should the Trust and the Council have a role to play, they will put the unfortunate history of their relationship with Mr NH behind them. For them to be able to do so, it will, however, be necessary for Mr NH to adopt a less confrontational approach.
36. This application is dismissed.