QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on
the application of O(a child,by his mother as litigation friend)
|London Borough Of Hammersmith and Fulham
Mr Paul Greatorex (instructed by London Borough of Hammersmith & Fulham Legal Services Division) for the Defendant
Hearing dates: 16, 18 March 2011
Crown Copyright ©
MR JUSTICE BLAIR:
"We concluded that [O] was typical of the autistic pupils for which Queensmill School provides, and indeed Mrs Ragan [the head teacher] assured us that there were pupils there who had a much more severe level of anxiety than [O] but whose special educational needs the school is able to fully meet. She was wholly supported in this view by Mr Dwyer, who knows [O] and who is the educational psychologist for Queensmill School. We concluded that [O] is not amongst the small number of autistic children who need a 24 hour/waking day curriculum and further that LVS Hassocks offered no especial benefits for [O] which could justify the cost of the placement. It would therefore be unreasonable public expenditure for [O] to have a place at LVS Hassocks. In reaching this decision we took into account the amount of money paid to [O's father and mother] for 14 hours per week respite care which we considered did not in itself confirm a need for a waking day curriculum.
In deciding that Queensmill School should be named in [O's] statement we took into account [O's father and mother's] stated objections to his peer group at Queensmill, but did not think that their objections to his peer group at Queensmill were sufficiently persuasive to reject placement there. Indeed we noted that the peer group at LVS Hassocks were more able than [O] and this could limit opportunities for him to interact on an equal footing with his peers there. We are confident that [O's] special educational needs could well be met at Queensmill School.
We appreciate fully the emotional fragility of [O's] family and this may well have lead to [O's father and mother's] decision that [O] required a boarding school environment on transfer to secondary education. However, they placed him at LVS Hassocks from September 2009 without first trying a day specialist school. The LA had made clear to [them] that they would not be paying the fees for LVS Hassocks and would be making a place available for [O] at Queensmill School from September 2009. It is unfortunate that [O's father and mother's] decision now means that [O] will have to change schools."
i) Further discussions be held to ascertain if the parents would agree to a trial of O attending Queensmill School with a high level of support at home, including the use of respite facilities.
ii) Consideration be given to whether O could be placed in a foster placement, internal or agency, with carers experienced in working with severely autistic children. It notes that Ms Dove's assessment states that a foster placement would not be agreed by the family. (It is clear that the family would not agree to such a proposal, which has since been ruled out.)
iii) The local authority to consider a residential placement which would meet his needs for stability, structure, minimal transitions, and include input from experienced carers.
Further discussions were suggested with the parents to get their view of a plan whereby O would live at home with a high level of support and attend Queensmill School (i.e. option 1). It is however a fair reading of the assessment as a whole that at this point the Local Authority's views were tentative.
The Legal Proceedings
The proposals as to accommodation
The parties' contentions
- A mandatory order requiring the defendant to place the claimant at Purbeck View with immediate effect and at least until the end of the current academic year, such placement to continue until at least 28 days after the defendant proposes an alternative package of support which in its view constitutes the "most appropriate" placement for the claimant.
Discussion and conclusions
20. Provision of accommodation for children: general.
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
It is not in dispute that O is in need under subsection (c).
23. Provision of accommodation and maintenance by local authority for children whom they are looking after.
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by
(a) placing him with
(i) a family;
(ii) a relative of his; or
(iii) any other suitable person,
on such terms as to payment by the authority and otherwise as the authority may determine ;
(aa) maintaining him in an appropriate children's home;
(f) making such other arrangements as
(i) seem appropriate to them; and
(ii) comply with any regulations made by the [appropriate national authority].
(8) Where a local authority provide accommodation for a child whom they are looking after and who is disabled, they shall, so far as is reasonably practicable, secure that the accommodation is not unsuitable to his particular needs.
I am told that as from 1 April 2011 subsection (8) will be recast in positive terms, but it is not suggested that this makes any practical difference so far as this case is concerned.
"Severely disabled children impose, as they grow older, increasingly severe strains on their family, parents and siblings. The growing costs of their education or accommodation and care lead, at times to severe disagreements and conflict with the local authority which may owe duties under the Children Act towards the child. There is often a pattern of negotiations with lawyers involved and a seemingly tight timetable, driven by the strain under which the family lives and educational changes, term timetables and vacations. There is a tension to a degree between the urgency which the claimant may feel the case requires and the opportunities for negotiation which the claimant may wisely pursue. There is a great deal of scope, unfortunately, for distrust to arise between the local authority and the claimant's family, and for a claimant to feel, rightly or wrongly, that the local authority is unjustifiably dragging its feet in responding to challenges to its assessments and further and other expert reports on the child's welfare."
At the hearing, the Local Authority made it clear that it might not have a fully finalised proposal ready by the time of the expedited hearing on 16 March 2011, and that proved to be the case. It is not open to criticism in that regard.
- I accept (a) that it is not for the court to make its own decision as to what community care is appropriate. That is not the court's function; (b) the court will review the actual decision made where it affects fundamental rights with a scrutiny appropriate to the context; (c) that the intensity of review will depend on the profoundness of the impact of the decision, but note that that profoundness has to be judged objectively and not necessarily by reference to the way in which a claimant or defendant might, in the circumstances of a particular case, perceive it. Here I regard the decision as having an impact upon the family life of the claimant, her sister and mum. But part of the context which cannot be ignored is that the decision is expressly that of the local authority which is to be made in the light of the needs of the child and in the child's best interests, and that they must be taken to be as the local authority sees them, provided such a view is not irrational and provided that its view is scrutinised with some care.
" One of the major problems with interim relief in the form of an order for the placement of a child in a particular school is that it is very often akin to substantive relief. If the child is in an educational institution for a period of time, the disruption upon removal becomes a factor in the substantive decision. The child will also have developed in response to the circumstances at that institution which will, in turn, affect substantive relief."