Black J :
The parties
- The First Claimant, JL, was born on 28 September 1994 and is 14 years old. The Second Claimant is his mother, LL. The First Defendant is the local authority with responsibility for providing services for children and their families in the area in which the claimants live ("the local authority"). The First Interested Party is the Secretary of State responsible for public services for children ("the Secretary of State"). The Second Interested Party, the Council for Disabled Children ("the Council") is a national voluntary organisation working for disabled children. Its membership is drawn from a wide range of voluntary organisations, parents, disabled young people and local authorities. In any given year, it works with about two thirds of all English local authorities to support policy and practice development in their disabled children's services.
- JL has a severe expressive and receptive language and communication disorder and suffers from autism at the more serious end of the scale. LL also has health and emotional difficulties. Amongst other problems, she suffers from fibromyalgia which is painful and debilitating, and she has long term depression.
The issues
- The judicial review proceedings brought by the claimants stem from the introduction by the local authority in February 2007 of eligibility criteria for the allocation of disabled children's services. The claimants challenge the lawfulness of the eligibility criteria themselves and also their particular application to JL by virtue of an initial eligibility assessment of his case in March 2007 and in the local authority's core assessment, dated 9 July 2008.
- Neither the Secretary of State nor the Council appeared at the oral hearing in front of me but both made helpful written submissions. The Council indicates that the issue of eligibility criteria in disabled children's services is real and pressing in local authorities across England. It says that every local authority operates such criteria which serve to limit "the ever-increasing claim on local authority resources imposed by the growing and increasingly complex population of disabled children." Local authority members and officers have expressed to the Council their concerns about the variation in eligibility criteria between authorities and the lack of clarity about the legal position in relation to them. The Council refers to unpublished research commissioned by the then DfES in 2003 which concluded that "service quality is dependent on postcode rather than need". A report of the Audit Commission in 2003 also found a "lottery of provision" and found families dissatisfied with eligibility criteria which, amongst other things, they considered to be based on arbitrary decisions. The Council indicates that the position has not improved since 2003 and that its consultancy visits to local authorities suggest that, in fact, eligibility criteria have tightened, as a result of increasing pressures on social care budgets, so that fewer families receive a service. In these circumstances, the Council indicates that it would welcome greater legal clarity on whether local authorities should operate eligibility criteria for services to disabled children under the various statutory provisions and as to whether the Department for Children, Schools and Families should issue guidance on the operation of eligibility criteria for disabled children's services to ensure greater consistency.
The form of the hearing
- Both the question of permission and the substantive hearing were listed in front of me by order of David Elvin QC sitting as a High Court judge. He took this course in view of the time that had elapsed between the introduction of the eligibility criteria in February 2007 and the launch of judicial review proceedings on 11 August 2008, because he rightly thought it important to permit argument on the implications of the delay.
- The local authority never filed an acknowledgment of service. It had not done so prior to the order of David Elvin QC on 22 September 2008 although it should have done. He directed that it file detailed grounds for contesting the claim by 13 October 2008 which it did.
- The consequence of CPR 54.9 is that, not having filed an acknowledgment of service, the local authority is not entitled to take part in a hearing to decide whether permission should be given unless the court allows it to do so, although, having complied with the directions of the court for filing further documents, it can take part in the hearing of the judicial review. As it happened, the claimants did not attempt to dissuade me from hearing the local authority on the question of permission. This was obviously sensible because this is a case in which it is difficult to isolate particular aspects of the case for separate consideration. Delay in proceeding in relation to the initial introduction of the eligibility criteria, for example, not only had to be considered in connection with the question of whether it was necessary/appropriate to extend time for the proceedings but was also relied upon by the local authority as a reason to oppose the granting of certain forms of relief to the claimants.
The relevant facts
- Since 2003, JL and LL have been receiving assistance from the local authority in relation to the care of JL. Child protection concerns arose in the spring of 2003 when LL told a psychotherapist that she had pushed JL down the stairs at home. She was low and was having suicidal thoughts and had talked to JL about her dying.
- The detail in the papers about child protection issues is somewhat unclear and contradictory. However, what is plainly established is that JL's name was put on the child protection register at least once because his care was being affected by his mother's physical and emotional difficulties. The background information given for the Looking after Children Review of Arrangements meeting on 18 April 2007 suggests that JL was on the child protection register from 1 May 2003 until 21 May 2006.
- A community care assessment summary dated 13 May 2004 records the overall aim of intervention as being to "help [LL] to remain independent in her own home and to continue providing essential responsibilities to her son". It is also recorded in that summary that LL was having "a period of respite on Thursdays when [JL] stays over at a respite support centre." This respite support centre was the local authority's establishment at Lough Road. JL has continued to attend Lough Road ever since 2004 and the present arrangements for respite there are at the heart of these proceedings.
- The local authority's core assessment completed on 30 August 2005 was required to "summarise the needs of the child and the family". It identifies that "[JL] needs continuing respite and social activities. [LL] needs respite and help to take [JL] out to access leisure and social services activities when she is not able to". The person compiling the form is required, in a section headed "Outcomes", to "choose an appropriate period in which the child's needs can be addressed". There is then a section in which the question has to be addressed, "What services are most likely to achieve the outcomes you have described?". At the time of the core assessment, JL was attending Lough Road overnight on alternate Thursdays and also for one weekend in six and a continuation of this respite provision was confirmed as one of the services most likely to achieve the outcomes described. That was provided and amounted to 52 overnight stays of 16 hours over the course of a year, a total of 832 hours per year. In addition, help at home was required and provided by direct payments equating to 416 hours per year (8 hours per week). Accordingly, the family was receiving, in total, 1,248 hours of support a year or an average of 24 hours per week support. In addition, LL was entitled to 2 hours a week help with housework but that is outside the scope of the challenge with which I am dealing.
- Support continued to be provided in accordance with the 2005 core assessment until 2007, the direct payment element of it (the 8 hours a week) being the subject of a review meeting on 27 November 2006 which expressly confirmed that direct
payments would continue as before. The next review meeting was intended to be on
25 April 2007.
- Meanwhile, the local authority had been exploring the options available to improve the allocation of support services for disabled children. The Executive Member for Children and Young People produced a report dated 22 June 2006 on the subject of "Eligibility Criteria for Disabled Children". Paragraph 1.2 of the report says:
"The Disabled Children's Service has developed new eligibility criteria for the allocation of support services in consultation with parents, carers and partner agencies. They will improve the quality and consistency of service delivery and result in better outcomes for disabled children and will be the subject of wide consultation. The new criteria will ensure:
- services are based on levels of need rather than diagnosis;
- a degree of transparency in decisions made on level of service; and
- equitable allocation of finite resources."
- The stated intention (paragraph 3.2) was to move away from the allocation of resources by diagnosis or to the most vociferous parents to what was perceived to be a better scheme because:
"The new criteria look more holistically at a family's situation based on all aspects of the assessment framework, and therefore seek to ensure fairer allocation of resources, with net benefits to both service-users and the Council alike."
- The report sets out the preparatory research done by the local authority on the impact of the eligibility criteria which it intended to introduce. It involved "a paper exercise against known cases held by the Disabled Children's Team", a consultation with a small group of known parents, piloting the eligibility criteria with 11 new referrals, and final consultation with staff and parents. The report identifies, in paragraph 4.4, the further consultation intended. It acknowledges (paragraph 4.7) that when existing packages of support came to be reviewed under the new criteria, there would be changes, some increasing and some possibly reducing. The report appends some examples of the application of the criteria, in one of which the new criteria would lead to a reduction in the support provided. Paragraphs 5.2 and 5.3 of the report say:
"5.2 Legal implications
A range of support services can be made available to disabled children (sections 2 and 28A Chronically Sick and Disabled Persons Act 1970 and section 17 Children Act 1989). The Council's eligibility criteria set the standards to be applied in judging a child's needs in relation to their disability and individual circumstances. The Council can take its resources into account both in assessing needs and deciding what is necessary to meet them. However, once the Council decides that it is necessary to make specified arrangements to meet a child's needs, it has a duty to supply the services unless and until there has been a reassessment (Barry case). Consultation should take place on the proposed eligibility criteria.
5.3 Equality implications
The purpose of the eligibility criteria is to ensure that decisions can be made as fairly as possible and that those in greatest need get the highest level of support. Everyone who requests to be assessed for the provision of support services will be assessed in the same way using the eligibility criteria. The scoring for banding purposes must be backed up by evidence in the body of the assessment itself. The scrutiny process by the line manager and the Resource Allocation Panel should ensure that there is consistency across assessing social workers and in relation to different disabilities while still allowing individual assessments of each child and family's situation. In feedback from staff there was a concern that very young children might not score highly on the criteria. However, it was also acknowledged that other options for support such as Surestart, Children's Centres and the services available via the Child Development Team exist for this age group and it is important to use the full range of what other services are available in the community."
- No further information has been produced as to the decision making process within the local authority which led to the introduction of the new eligibility criteria in February 2007.
- A standard letter was sent to LL dated 15 February 2007, explaining the new scheme. It informs her that "the Eligibility Criteria was [sic] approved by the Executive Committee of the Council in November 2006." It says that:
"The eligibility criteria is about access to direct payments, family outreach support and day-care and overnight support at the new Lough Road Centre. The available hours for these services will be up to 12 hours for high needs, up to 6 hours for medium needs and up to 3 hours for low needs. Parents can choose to use all their child's hours within one service, for example direct payments or split the hours between two or more services, for example family outreach and Lough Road."
- On 14 March 2007, a social worker completed the new eligibility criteria form for JL. His case scored 26 which put him in the High band which brought an entitlement to 12 hours per week.
- A "Child Looked After/Young Person's Care Plan" dated 21 March 2007 followed. The "chosen plan" for JL is said to be "Respite care at Lough Road. (12 hours per week)". The "Legal order Type" is said to be "Voluntary Accommodation section 20". This, i.e. 624 hours a year, was all that it was proposed JL would continue to receive of his former allocation of 1,248 hours a year. It appears from information made available at the hearing that the cut to that level was not immediate but occurred in October 2007.
- On 18 April 2007, a "Looking After Children Review of Arrangements" meeting took place. The background information in the review form states that JL is eligible for 12 hours a week of services under the new eligibility criteria which could be used at Lough Road or taken by direct payments or a mixture of both. The participants at the review were under the impression that JL was "deemed to be looked after under s 20 of the 1989 Children's Act." The form records:
"[LL] was advised about how the hours [JL] will receive as part of his new service will work. She told the meeting she wants [JL] to have a night a week at Lough Road during term time and then to have direct payments during holiday times. She said she prefers it this way as this means she gets a break during the week from having to get up early to get [JL] off to school."
- A further Care Plan was drawn up dated 12 September 2007. This acknowledges that no core assessment had been completed to inform the plan - none had been carried out since 2005 - and says that one will be completed on or by 30 November 2007. It is recorded that JL needs a mixed package of respite care and direct payments and that the package was reduced at the last review to 12 hours a week. Lough Road is also mentioned in the section on "Stimulation" for JL as it is said to provide the opportunity to take part in a range of activities with other young people. LL is said only to agree partially with the plan. She is recorded as not agreeing that 12 hours a week is sufficient.
- On 10 October 2007, a meeting took place between LL and a number of local authority representatives, including Mr Phil Watson, Head of Integrated Services, to discuss the new package for LL and JL. In the course of the meeting, Mr Watson indicated that the maximum amount a child could be allocated following the introduction of the eligibility criteria would be 12 hours a week. LL said the new arrangements were not meeting her needs. She said she would like to use Lough Road for short breaks of 1 day a week in term time and did not have sufficient hours to do so. The shortfall was 16 hours per annum. Mr Watson is recorded as saying "that he is not able to make special exceptions to the hours for [LL] and that a review of the hours we give as a service will take place". I take this to mean that he did not consider there to be a discretion to depart from the results of the eligibility criteria assessment in individual cases but that a review of how the criteria were working generally would be carried out in due course. This interpretation is in line with the final paragraph of the body of the minutes which records,
"Phil agreed to review all cases but not specifically [JL]'s case per se and that services need to be responsive to helping families."
and is also confirmed by action point 4 at the end of the document which says,
"4. Phil to review the issue of the 12 hours maximum banding"
The minutes also record, however, that,
"Phil agreed that 16 hours extra could be approved at this time due to the transport from school hinders [JL] from attending other provisions locally." [sic]
- Apart from the extra 16 hours per annum, no further changes materialised following the meeting, nor was a core assessment carried out. On 7 February 2008, solicitors for LL and JL sent a letter to the local authority in accordance with the Pre-action Protocol for Judicial Review requesting that the local authority revoke the eligibility criteria, reassess JL's package and reinstate provision at the level that it was before the criteria were introduced. The local authority treated the letter as a formal complaint under its complaints procedure rather than a pre-cursor to judicial review. Its letter of 20 February 2008 in reply does not answer the fundamental challenges in the pre-action letter. It says that the social worker had been requested to commence a core assessment as soon as possible. It says,
"Mr Phil Watson (Head of Service) has reviewed the care package provided and has the discretion to agree packages over and above the maximum 12 hours per week for high banded children under exceptional circumstances."
It also records the agreement reached at the 10 October meeting for an extra 16 hours a year to be provided so that JL could stay overnight at Lough Road each week in term time.
- The claimants' solicitors received a draft core assessment on 16 April 2008. After further work was carried out, a final core assessment was produced dated 9 July 2008. The plan for respite is stated to be the provision of 12 hours a week over night at Lough Road during school term time and 3 hours a week direct payments.
- The claimants take issue with a number of aspects of the core assessment which they intend to pursue through the local authority complaints procedure rather than attempting to address them in these judicial review proceedings. They also attack the core assessment on the basis that it has wrongly been confined by the eligibility criteria and does not represent a true assessment of JL's actual needs. This is a challenge which they say cannot realistically be pursued through the complaints procedure and which they seek to pursue as part of this judicial review.
Leave to apply for judicial review, delay and the availability of an alternative remedy
- It will be abundantly clear, from the body of this judgment, that the claimants have had, from the outset, an arguable case that a ground exists for judicial review. Putting all other considerations to one side, this is a plain case for the grant of permission to proceed with the proposed judicial review application. What troubled Mr Elvin QC was the delay between the introduction of the eligibility criteria in February 2007 and the launch of the judicial review proceedings in August 2008 and I need to address that issue, upon which the local authority rely in relation both to the question of whether permission should be granted and the question of whether the claimants should have relief.
- The local authority properly invites attention to the provisions of CPR 54.5 which requires the claim form to be filed promptly and, in any event, not later than three months after the grounds to make the claim first arose. The court has a discretion to extend time but, of course, looks for a good reason or adequate explanation for the delay and considers whether extending time would cause hardship or prejudice or otherwise be detrimental.
- The local authority takes two alternative arguments about the timing of the judicial review claim. Its primary argument is that the application is, in fact, premature and/or does not attack the relevant decision. It submits that the claimants' claim only crystallised when the eligibility criteria were translated into final reality for them by virtue of the core assessment finalised in July 2008. It submits that this assessment has not been challenged in these proceedings by the claimants. The first consequence of this, it says, is that the proceedings should not be permitted as they are not directed at the decision that affects the claimants. The second consequence is that, if the judicial review claim is considered, the court has to proceed on the basis that, whatever deficiencies there may ultimately turn out to be in it, the core assessment validly assesses JL's real needs.
- It is not correct, in my judgment, to say that the Claimants have not sought to mount a challenge to the core assessment in these proceedings. The initial judicial review claim form indicates that the decision to be judicially reviewed is,
"The 'Eligibility Criteria' for Disabled Children's Services, introduced by the Defendant in or around February 2007 and applied to the Claimants for the first time on or around 14th March 2007, but most recently applied in a revised Core Assessment dated 19th July 2008." [my emphasis]
The remedy sought in that form includes not only an order quashing the eligibility criteria but also an order requiring the local authority to reassess JL's needs according to law. This necessarily implies that the July core assessment would be swept aside and a further core assessment carried out. The Statement of Facts and Detailed Grounds says,
".....a Core Assessment was finally produced on 9 July 2008. It is still not accepted that this assessment meets the formal legal requirements of a community care assessment and Care Plan and the Claimant has a number of issues with it, as described in the attached witness statement of Mitchell Woolf, which the Second Claimant proposes to address through the Defendant's complaints mechanism, if necessary. What has become clear, however, is that the fundamental flaw upon which this Core Assessment is based - namely the unlawful eligibility criteria -can only be addressed by way of judicial review proceedings."
- David Elvin QC's order of 22 September 2008 indicated that it may be appropriate to amend the pleadings to challenge the core assessment. I am not convinced, myself, that a formal amendment to this effect is necessary because the point is, in my view, already covered in the original documentation. However, I obviously respect Mr Elvin QC's view and, if amendment is necessary, I permit it without hesitation. As Mr Elvin implied, only with the amendment could the real issues between the parties be aired in front of me and I am satisfied that it could be made without any prejudice at all to the other parties who were well aware of where the focus of the hearing was and prepared to argue the matter fully, as their oral submissions amply demonstrated. What was already apparent from the claimants' formal documentation was spelled out explicitly in the skeleton argument for the hearing, which included, under the heading "Details of decision to be judicial reviewed", a reference to the core assessment. Counsel for the claimants also reiterated orally that such a challenge was, and always had been, made.
- The local authority also submits that no judicial review of the core assessment should be permitted because the claimants have an alternative remedy, namely the local authority complaints procedure, which they should first exhaust. The claimants are indeed using the local authority complaints process to address the detailed issues that they wish to raise concerning the assessment and the care plan. Had they attempted to raise those matters in the judicial review proceedings, they would validly have met with the answer that they should first exhaust the complaints process as it constitutes a remedy which is not only available but also more appropriate to resolve such issues. However, if they are correct in arguing that the local authority has confined its consideration of how to meet JL's needs (or at least some aspects of them) to applying its eligibility criteria rather than identifying JL's actual needs and how they might be met for him, whatever progress may be made through the complaints process in relation to detail will not alter the fundamental parameters of the core assessment. Real change to the outcome in JL's case could only be achieved by a successful challenge to the eligibility criteria. As it is at least arguable that the assessment was confined by the eligibility criteria, the existence of the complaints procedure is not, in my view, a reason to refuse permission to bring the judicial review proceedings. If the assessment was, in fact, a proper individual assessment of JL's needs, the challenge to it will fail in any event and the local authority will not need to resist the granting of relief by deploying an argument based upon the existence of an alternative remedy.
- I turn to the issue of delay. As an alternative to the argument that the claim is premature, the local authority argues that it is too late. It points out that a claimant in judicial review must challenge the substantive act or decision which is the real basis for his claim rather than some subsequent manifestation of it. It argues that the March 2007 care plan is the real basis for the claim and was identified as such in the claimants' pre-action protocol letter of 7 February 2008. There is some merit in this argument but it is not the end of the story. The pre-action protocol letter also asserted that the March 2007 decision was "an ongoing decision". It seems to me that this is a valid way of looking at things. Until the core assessment was finalised on 9 July 2008, there was a constant state of flux. The claimants are not, in my view, within the class of people or organisations who would be expected to attack the eligibility criteria in principle without them having had any practical effect upon their own circumstances. The March 2007 decision did not affect them at all until support was cut in October 2007. From that point on, whilst there had been an actual cut in benefits, there remained the possibility that matters would be redeemed once the local authority had carried out a reassessment. It had been accepted in 2007 that a new core assessment was required (see the care plan of 12 September 2007). It was expressly agreed in the October 2007 meeting that a reassessment would be carried out by the social worker "so that hours may increase". The local authority then indicated in its letter of 20 February 2008 that the social worker had been requested to commence a core assessment and this only finally appeared in July 2008. Proceedings were begun a month later.
- Whether on these facts it can properly be said that time only began to ran from the date of the final core assessment or whether the appropriate analysis is that there was a decision earlier in the chronology which could have been the subject of judicial review proceedings, I have no doubt at all that this claim should be permitted to proceed, time being extended if necessary. In my view, the claimants should not be penalised for waiting to see whether the matter could be resolved by agreement. The local authority cannot have been lulled into a false sense of security at any point because the claimants always made it clear that decisions flowing from the introduction of the eligibility criteria were not accepted. Furthermore, a significant amount of delay derived from the local authority itself, not least between the October 2007 meeting, which contemplated a re-assessment, and the production of the final core assessment in July 2008. I note the local authority's argument that the passage of time has created prejudice because "other service users have had their hours decreased or increased as the case may be according to the Eligibility Criteria". It is difficult to lay the blame for this at the door of an individual claimant who is merely challenging the results of the eligibility criteria in her own case. If the introduction of eligibility criteria turns out to have been unlawful and other service users have received the wrong support as a result, the responsibility for that rests not with these claimants but with the local authority. If they are not unlawful, the provision for other service users will not be impugned.
The argument that JL's needs have been genuinely assessed and met by the local authority and the claimants have no need to challenge the eligibility criteria
- The local authority places heavy reliance on the core assessment finalised in July 2008 which it says is a genuine assessment of JL's needs whereas the claimants submit that it was, in reality, only an application of the eligibility criteria and not tailored to JL's circumstances. The local authority goes on to argue that as it is meeting JL's needs as identified in the core assessment, the claimants have no need to complain about the eligibility criteria and the court should decline to become involved in the arid exercise of providing answers to questions about them.
- In asserting that the core assessment genuinely reflects JL's needs, the local authority starts with the apparent difficulty of the radical drop in the hours provided for JL from 1248 hours per annum (832 hours covering short breaks at Lough Road throughout the year and 416 hours direct payments for support at home) to 624 hours per annum (which would provide for 39 overnight stays at Lough Road, that is during term times only, and no direct payments). I appreciate that the new scheme that came in with the eligibility criteria was intended to give the parent choice as to how to "spend" their hours, so that in theory LL could have chosen for JL to have fewer overnight stays at Lough Road and some money for direct payments, but the reality was that the support that was of most assistance to her was Lough Road. The effect of the reduction in hours was that instead of overnight stays being available throughout the year, they were confined to term time only; if LL had diverted hours to allow for direct payments, not even the term times would have been covered.
- What justification can be found for the drastic reduction in provision? The answer is that not much, if anything at all, can be found articulated in the local authority's documentation. For a start, it is undoubtedly the case that the reduction was initially announced following, and directly because of, the completion of the new eligibility criteria form. There was no core assessment alongside the filling in of the form, indeed no assessment of any kind except that which is incorporated in the form itself, although it is notable that the local authority itself expressly recognised the need for a core assessment in their Care Plan dated 12 September 2007 and again in correspondence to do with these proceedings in February 2008. There was certainly no critical examination of how it could be that the needs of a child, which had been assessed in a core assessment in August 2005 as 1,248 hours of support per annum, had dropped to half that less than two years later. Of course, there might have been a really marked improvement in the child's condition or in the family circumstances but nothing of this significance was identified specifically nor is it apparent from the documentation. The Detailed Grounds for Contesting the Claim point out that JL's aunt, who had previously assisted his mother and for whom direct payments of 8 hours a week had been made, had ceased to be involved but this had happened in September 2006 and was acknowledged at a Support Package Review Meeting on 27 November 2006 which approved the continuation of the direct payments and planned that there should be exploration of using them on other specified items; it was not a new development that would have justified changes to the hours of support less than 6 months later.
- The impression is that the gross reduction was presented to LL as a fait accompli. In so far as she appeared to accept it by indicating at the review on 18 April 2007 that she wanted a night a week at Lough Road during term time, I am quite satisfied that she was bowing to what appeared to be inevitable rather than endorsing this as proper provision for JL's needs. That review took place against what was treated as an established backdrop of the reduction to 12 hours a week. Although matters such as JL's development, health and behaviour, and his own and LL's views, are set out in the review document, there was obviously no question of the local authority responding to the circumstances by providing more support.
- LL demonstrated her dissatisfaction at the time of the Care Plan of 12 September 2007 which records her as not agreeing that 12 hours per week is sufficient. This similarly sets out the family circumstances but without any hint that any more than 12 hours of support could be made available, whatever those circumstances were.
- Given that these examinations in April and September 2007 of JL's circumstances proceeded on the assumption that 12 hours was all that would be provided, and therefore did not address the issue of whether that was sufficient, the only way in which the local authority could sustain an argument that there was a genuine assessment of JL's needs as being 624 hours per week at any point up to the October 2007 meeting would be if it were to establish that the eligibility criteria contain within them all the tools needed to assess the needs of a child. This is plainly not its own view as can be seen from its acknowledgment, both at the time of the Care Plan in September 2007 and in 2008, of the need for a core assessment. I find it hard to see how a system such as this one, where points are attributed to a standard list of factors leading to banded relief with a fixed upper limit, can be sufficiently sophisticated to amount to a genuine assessment of an individual child's needs. There will be times when, fortuitously, the needs assessed by such a system will coincide with the real needs of the family but it is difficult to have any confidence in that occurring sufficiently frequently to justify the use of eligibility criteria on their own.
- I do not consider that the October 2007 meeting amounted to a genuine assessment of JL's needs either. No doubt LL's dissatisfaction was the reason for the calling of that meeting. When LL said at that meeting that she would like short breaks one day a week in term time, I think this was, once again, merely an attempt to get the best out of a situation which she considered to be unsatisfactory and not an acknowledgment that the slight increase in provision needed to make this possible would render the provision sufficient to meet JL's needs. Whilst the increase from 624 hours to 640 hours per annum to cover overnight stays for the whole of the term time looks as if it might be a response to JL's actual needs, I do not consider that it was. It is quite plain from the minutes that Mr Watson was essentially wedded to the mechanistic process of assessing provision by means of the eligibility criteria. LL was asking how the reduction was going to meet her needs. His theme was that the previous system had denied other families services and created a massive waiting list and that a lid needed to be kept on services as, if there was not a system in place, the service would be overspent and no one could receive a service. He was clear that he would not make special exceptions to the hours for LL but that a general review of the hours provided by the service as a whole would be carried out in 12 months. Although he did ultimately agree to the extra 16 hours per annum for JL, in my judgment, this did not flow from an acceptance by him that, in principle, the 12 hours dictated by the eligibility criteria could be expanded in individual cases, or from an assessment independent of the eligibility criteria as to what JL's needs really were. How he intended to account for the increase in hours internally is not clear but it seems to me overwhelmingly likely that he was simply responding pragmatically to the problem that LL presented. I take into account what is said in his statement for these proceedings about the Scrutiny Panel being able to award more than 12 hours per week support, and the reference to a discretion in Lough Road's letter of 20 February 2008, but I think this was very much in the nature of an afterthought, coming into existence after the October meeting.
- The real focus of the local authority's argument that there has been a genuine assessment that JL's needs are for the equivalent to 12 hours a week of support is the core assessment of 2008. I have approached this issue keeping very much in mind the other ways, in addition to the weekly hours for Lough Road, in which the local authority was seeking to help with JL's care, which are carefully identified in the Detailed Grounds for Contesting the Claim. I am conscious that attention must be paid not only to the assessment in the area covered by the eligibility criteria but also to the whole package of care proposed for JL from all sources.
- The local authority's approach to JL's case in the period between his initial assessment pursuant to the criteria in March 2007 and the commencement, in early 2008, of the core assessment is the backdrop against which the core assessment itself must be seen. The local authority was not in any hurry to complete the core assessment and, by the time it was completed, it had proceeded for over a year on the assumption that JL's provision was to be limited to 12 hours per week (with the very small, pragmatic, October 2007 addition). Just as there had been no examination at the outset as to what had changed so that JL's needs could now be met with half as many hours of support, so there was no analysis in the core assessment of that question. There is a considerable amount of information about LL and JL in the body of the document. It includes the statement that over the last two years, LL has been able to look after JL with the support of regular planned respite from Lough Road and refers to the introduction of the 12 hours a week ceiling in 2007 and to fact that the previous provision was 24 hours a week. In the analysis section, it says,
" [JL] has been attending Lough Road Children Centre for a number of years. He attends one overnight per week during school term time. This provides [JL] with a consistent and stable form of respite.
Lough Road is also able to provide emergency respite should this be required."
Under Identified Needs and Suggested Responses, it says,
"Need
[LL] needs regular respite from her care responsibilities, both due to [JL's] additional needs and her own fragile health.
Plan
- 12 hours a week over night respite to be provided at Lough Road during school term time.
- Ongoing 3 hours Carers Direct payments."
In the Decisions section, it says,
"[JL] will continue to have 12 hours a week respite provision, and [LL] will continue to receive 3 hours Carer's Direct Payments."
- Having considered the core assessment as a whole, it seems to me that it proceeds from what is taken to be an established basis of 12 hours a week. I have little doubt that this approach was conditioned not only by the fact that this had been the pattern for JL for some time, but also by the local authority's rigid adoption of the eligibility criteria as exemplified in what Mr Watson said in the October 2007 meeting. It cannot, in my view, be accepted as an untrammelled assessment of his needs in relation to the respite hours or a critical analysis of the adequacy of the 12 hours allowed. I do not think it is even factually correct and the form of the error in it underlines my view about the genesis of the assessment of support it contains. As I understand it, an overnight respite stay at Lough Road lasts for 16 hours. JL neither needed nor was going to continue to receive 12 hours a week overnight respite at Lough Road. Even if the explicit reference in the assessment to 12 hours a week overnight respite during term time were to be ignored and, instead, the 16 hours a week that JL needed during term time were to be totalled and then divided by the 52 weeks in the year, that does not amount to precisely 12 hours a week either. Why should the assessment refer to 12 hours? One can only think it is because that ties in with the eligibility criteria.
- It follows from the limitation of the core assessment in the light of the eligibility criteria that it cannot be taken to be a genuine assessment of LL's needs in relation to Lough Road and it does not stand in the way of the claimants' judicial review claim.
- I turn therefore to look at the legal framework in which provision for LL was available.
The legal framework
- There are a number of statutory provisions under which a local authority may have a duty or a discretion to assess and/or provide for particular needs of a child. The extent to which a local authority is entitled to rely upon eligibility criteria depends upon which type of statutory provision is in play. The claimants concede that where the local authority merely has a discretion to make provision, it is free to use eligibility criteria. Where a statutory duty arises, the precise nature of the duty must be identified. It may, for example, be an absolute duty to provide for a particular need of an individual child, in which case there is no room for eligibility criteria. It may, on the other hand, be a duty which is qualified in some way, for instance a duty to "take reasonable steps" to achieve a particular objective, in which case the local authority can take into account, amongst other things, its overall financial resources and can, if it wishes, introduce eligibility criteria. Much argument has accordingly been directed to establishing under which statutory provision the local authority are making provision for JL to attend Lough Road and what the attributes of the relevant statutory provision are.
- Four statutory provisions are candidates:
- S 17(1) Children Act 1989
- S 20(1) Children Act 1989
- S 20(4) Children Act 1989
- s 2 Chronically Sick and Disabled Persons Act 1970. Section 17 Children Act 1989
- S 17(1) Children Act 1989 provides,
"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) -
(a) to 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."
- Section 17(2) provides,
"For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2."
- Part 1 of Schedule 2 sets out the sort of matters that a local authority needs to cover ranging from the provision of information about their services to taking steps to prevent children in their area suffering ill-treatment or neglect. Some of the provisions of Part 1 are permissive and others are cast in mandatory terms.
- A child is taken to be in need for the purposes of s 17(1) if he is disabled, as JL is.
- Section 17(6) provides that,
" The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."
Section 20 Children Act 1989
- Section 20 Children Act 1989 is entitled "Provision of accommodation for children: general".
- Section 20(1) provides,
"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."
- Section 20(4) provides,
"A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare."
Section 2 Chronically Sick and Disabled Persons Act 1970 (CSDPA 1970)
- Section 2 provides,
"(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely -
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,
then, subject to the provisions of section 7 of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State), it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
- Section 28A CSDPA 1970 provides that the Act applies with respect to disabled children in relation to whom a local authority has functions under Part III of the Children Act 1989 as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies. It can therefore apply to a child such as JL.
The attributes of each of the statutory provisions
Section 17(1) Children Act 1989
- Section 17(1) Children Act 1989 was the subject of consideration by the House of Lords in R (G) v Barnet LBC [2004] 2 AC 208. The conclusion was that it is a general duty to provide an appropriate range and level of services. It does not itself impose a mandatory duty on a local authority to take specific steps to satisfy the assessed needs of a particular individual child in need, regardless of the local authority's resources. A child in need is eligible for the provision of services but has no absolute right to them. Such right as he has must be found elsewhere in the Children Act or in other legislation.
- Where a service is provided simply under the auspices of the general duty in section 17(1), therefore, there can be no objection in principle to the use of eligibility criteria. The claimants concede this. However, they complain that there is no governmental guidance to local authorities as to how to achieve a fair distribution of social services resources. They contrast this with the position in relation to adult social care in relation to which the Department of Health has provided a Local Authority Circular entitled "Fair Access to Care Services" (FACS). In the absence of guidance, they submit that there are likely to be different criteria applied in different local authority areas, leading to inequalities which may be discriminatory or otherwise unlawful. This is a point also identified by the Council which states that although FACS is criticised as a blunt instrument for determining eligibility in some areas, it does have benefits, including promoting transparency, because it is clear at what level services are provided in each authority. The most that is available in relation to disabled children is the "Core Offer" which is intended to be a statement of the standards which families with disabled children can expect across the country from local services. The Council submits that this provides limited guidance to local authorities on how to operate their eligibility criteria but falls short of the comprehensive guidance contained in FACS and, in particular, does nothing to prevent a local authority from applying eligibility criteria to individuals to whom the authority is, in law, under a duty to provide services.
- The local authority's reply to the complaint of regional variation is mat section 17 was not intended to be a uniform national provision. It submits that it contemplates that there will be local provision which may reflect a range of different circumstances. Furthermore, it argues, the debate about the provision of guidance and regional variations is irrelevant for the present purposes. If the use of eligibility criteria is permitted in section 17 cases, and everyone agrees that it is, then it says that that is the end of the matter.
Section 2 CSDPA 1970
- I said in relation to section 17(1) Children Act 1989 that for a right to services to exist for an individual child, it must be found elsewhere in the Children Act or in other legislation. Section 2 CSDPA 1970 is an example of such other legislation. If a local authority is "satisfied ....that it is necessary in order to meet the needs of [a relevant person] ... for that authority to make arrangements" for all or any of the matters listed in s 2(1), it is under a specific duty to make those arrangements. As R (Spink) v Wandsworth LBC [2005] 1 WLR 2884 decides, it does this in the exercise of its functions under Part III of the Children Act, of which section 17 is particularly relevant.
- Local authority resources are not entirely irrelevant in the context of section 2. R v Gloucestershire CC ex p Barry [1997] AC 584 addresses the issue in relation to provision for Mr Barry who was an elderly and infirm adult who came within section 2. The majority of the House of Lords were of opinion that there are two stages to the analysis of a particular applicant's claim under section 2. First, the local authority has to be satisfied that services within the section are "necessary" in order to meet the applicant's "needs". If the local authority is so satisfied, a duty under the section emerges. Once this second stage is reached, the fact that the local authority is short of resources is no excuse for failing to provide for the applicant's identified needs. However, at the first stage, the resources of the local authority are a relevant consideration. Lord Nicholls held that, in assessing the needs of a disabled person, the local authority has to have regard to the cost of what is to be provided and to the resources available to meet the cost and can set more or less stringent criteria for what is a need. Lord Clyde held that the severity of a condition and the seriousness of the need has to be matched against the availability of resources before the conclusion is reached that a particular service is necessary in order to meet an individual's needs. He reduced the proposition to the everyday when he said,
"Such an exercise indeed accords with everyday domestic experience in relation to things which we do not have. If my resources are limited I have to need the thing very much before I am satisfied that it is necessary to purchase it."
- It has not yet been determined specifically that the provision of children's services under section 2 is to be approached in the same way as the provision of adult services under that section but the claimants concede that this court is bound to work on that basis. However, they submit that, even working within those parameters, I should declare the use of eligibility criteria such as those in this case unlawful in determining provision under section 2. They submit that this local authority's eligibility criteria do not just serve to determine whether a particular individual has a need for services which it is necessary for them to meet but also invade the territory beyond that threshold and limit, in an arbitrary fashion, the extent to which the need is met.
Section 20 Children Act 1989
- Section 20(1) and section 20(4) are in clearly contrasting terms. Under section 20(1), a local authority "shall provide accommodation whereas under section 20(4) it "may" provide accommodation. Not surprisingly, therefore, the group of children covered by section 20(1) is more stringently circumscribed than those covered by section 20(4). Section 20(4) is merely a permissive section, giving the local authority
power to provide accommodation for any child in the local authority's area, provided the local authority is satisfied that providing accommodation for him would safeguard or promote his welfare. In contrast, as R (M) v Gateshead MBC [2006] QB 650 and A v Croydon [2008] EWCA Civ 1445 have confirmed, section 20(1) gives rise to an absolute duty. To come within it, the child must not only be in the local authority's area. He must also a) be in need and b) require accommodation as a result of one of the three conditions set out in the subsection.
- Given that section 20(4) only confers a power on the local authority, the local authority is plainly at liberty to take its own resources into account in determining what provision to make for a child under it. However, as section 20(1) imposes a duty on the local authority, the role of resources is confined. Can the local authority's resources be taken into account at all? It would be possible to draw an analogy between s 20(1) Children Act 1989 and s 2 CSDPA 1970 and to conclude that a local authority can take its resources into account when determining whether a child is in need of accommodation but not in meeting that need for accommodation once it has been determined that he is. However, the claimants submit that resources can play no part at all when a local authority is fulfilling its obligation under section 20(1). Section 20(1) should be approached, they submit, in the same way as section 19 Education Act 1996, rather than in the same way as section 2 CSDPA 1970.
- Section 19(1) provides,
"Each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."
and section 19(6) provides,
""suitable education", in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have"
- The precursor of section 19 (which was in all material respects the same) was considered by the House of Lords in R v East Sussex CC ex parte Tandy [1998] AC 714. Approaching the matter first as a pure question of statutory construction, Lord Browne Wilkinson, with whom the other members of the House concurred, identified that there was nothing in the wording of the section to suggest that resource considerations were relevant to what was "suitable education", whereas elsewhere in the Education Act, reference was expressly made to the efficient use of resources. Furthermore, the definition of "suitable education" concentrated upon educational considerations and nothing else. He then considered whether the decision in Barry affected the outcome. His opinion was that it did not. He described s 2 CSDPA 1970 as a "strange" provision in that it talked of meeting the needs of disabled people but then enumerated benefits which may be desirable but were not in any ordinary sense necessities. No guidance was provided in that statute as to how a need of that unusual kind was to be assessed and, therefore, he thought it not surprising that their Lordships looked for some other more stringent criteria enabling the local authority to determine what was to be treated as a need by reference to the resources available to it. Lord Browne Wilkinson contrasted the provision under the Education Act in relation to which the local education authority was not required to make any prior determination of the child's need for education or of the necessity for making provision for such education but simply had an immediate obligation to make arrangements to provide suitable education.
- If the Tandy approach applies to section 20(1), the claimants submit that a child either needs accommodation (in which case it has to be provided) or he does not. There is no room for a sliding scale of need which potentially results in more children being provided with accommodation in times of plentiful local authority resources than when resources are tight. If, and in so far as, eligibility criteria exclude children who would, absent those criteria, be determined to be in need, the criteria are unlawful.
- The local authority pointed out that there is no authority on the precise nature of the duty in section 20(1) and, in particular, whether local authority resources can play a part anywhere in it. It conceded in argument that there was force in the argument that the nature of section 20(1) is such that resources cannot be considered. Counsel for the local authority argued that it was therefore vital to limit the scope of the section if it were not to create an unmanageable burden on local authorities.
- I would not take the Barry approach in construing section 20(1). It is helpful to consider the analysis of Lord Browne Wilkinson (which I have set out above) of the reasons why the House of Lords adopted the approach it did to section 2 CSDPA 1970, acknowledging a role for local authority resources. Particularly instructive is his identification of the unusualness of the "needs" listed in section 2, which many people would not consider in the ordinary sense necessities. Section 20(1) is concerned with accommodation. Most people would consider accommodation for a child, whether of short or of long duration, to be a fundamental necessity. It is much more difficult to contemplate provision for such a fundamental necessity being curtailed by local authority finances than it is to contemplate restricting the provision of a radio or of outings, for example. A second point to make about section 20(1) is that it contains within it stringent limitations on the class of people who are entitled to provision in a way which cannot be said of section 2. The local authority is not liable to all children in need of accommodation. Its duty only arises if they are in need of accommodation as a result of one of the three stipulated conditions which are, in themselves, stringent and drafted in such a way as to identify children who are in fairly dire straits. Thirdly, one must bear in mind the contrasting terms of section 20(1) and section 20(4). The limitations of local authority finance are plainly relevant where there is a question of providing accommodation under section 20(4) and the existence of this discretionary provision so closely alongside section 20(1) suggests to me that a two tier scheme may have been contemplated. Provision had to be made for children within section 20(1) willy nilly. Those children who were not within section 20(1) would have to take their chances depending on the state of local authority finances, as well, of course, as all the other factors in play in their case.
- For all these reasons, in my judgment, section 20(1) is intended to impose an absolute duty on the local authority such as that in the Education Act. In my judgment, eligibility criteria cannot be used by a local authority in determining whether it has a duty to act under that section.
Under what section are Lough Road stays and support of other kinds provided?
- Much of the argument, in writing and orally, centred upon the overnight stays at Lough Road but I do not ignore the other provision that was formerly made for LL and JL and ceased with the introduction of the eligibility criteria. The criteria are said to be applicable to direct payment of money for parents to use to purchase their own support services, family outreach support services for support in the home, Lough Road short breaks unit which can include overnight respite and daytime activities, and commissioned services.
- Analysis of which section of which Act might be in play in relation to provision for a particular family is not at all straightforward and the fact that this particular scheme was designed to operate by allocating hours to families and letting them choose the services on which they wished to "spend" them adds to the complication. The local authority's own documentation shows that, at times, it considered that JL was covered by section 20 Children Act 1989, because of his overnight stays at Lough Road, and considered him to be a looked after child, although it did not spell out whether it was section 20(1) or section 20(4) that was relevant. It now questions whether the provision at Lough Road is within section 20 at all. The local authority is not bound by its earlier classification (which it says, in its letter of 20 February 2008, only applied in any event when JL was staying at Lough Road for 24 hours or more) but its own uncertainty underlines the difficulty of the issue.
- The Council submit that it is frequently unclear, in practice, under which statutory provision a disabled child's needs are being assessed and a decision taken as to the provision of services but does not hazard any further attempt at pigeonholing various types of provision.
- The Secretary of State submits that JL is provided with short breaks at Lough Road under section 20(4) Children Act 1989. He submits that section 20(1) Children Act 1989 is not satisfied because none of the three qualifying conditions set out in it exists. The condition which might possibly be relevant is section 20(1)(c) but he submits that LL is not being prevented from providing JL with suitable accommodation or care. Section 2 CSDPA 1970 does not apply because respite care is not a service listed in that section. Section 17 does not give rise to any right to any particular service or level of service.
- Like the Secretary of State, the local authority does not accept that the provision for JL comes within section 20(1). It submits that the provision at Lough Road is not "accommodation" and that none of the qualifying conditions in the section are satisfied. As to section 2 CSDPA 1970, it submits that it imports no duty to provide accommodation and does not cover the provision which the claimants seek. Its primary submission is that short breaks (or respite care as it used to be called) are always provided under section 17 Children Act although counsel for the local authority conceded in argument that the Secretary of State may well be right in saying that it is section 20(4) which is in use.
- In order to be able to make a fundamental challenge to the use of eligibility criteria in JL's case, the claimants must establish that the hours provided to JL to be "spent" either on stays at Lough Road or taken as direct payments are provided under section 20(1) Children Act 1989 or section 2 CSDPA 1970 and they advance arguments in relation to both these sections. They do not go so far as to submit that short breaks are provided under section 20(1) in every case but they submit that JL's are, because of the particular circumstances of his case.
- I will examine the two sections upon which the claimants rely in turn.
Section 20(1) Children Act 1989
- There was no debate as to whether JL is "in need". A "child in need" is defined in section 17(10) Children Act which provides:
"For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled.
JL is disabled and therefore a child in need by virtue of section 17(10)(c). He is also undoubtedly within this local authority's area.
- The first question that must be addressed in relation to section 20(1) is whether JL's short breaks at Lough Road are "accommodation" at all. Self evidently, the claimants submit that they are. The positions of the other parties, in so far as they deal with the question, are:
i) The Secretary of State must accept that overnight stays at Lough Road constitute "accommodation" given that he submits that they are provided under section 20(4), which is about the provision of accommodation and only the provision of accommodation.
ii) The local authority concedes that provision for a child can, in theory, be "accommodation" even if it is for less than 24 hours, but concentrates its submissions on the character of the particular provision made for JL, which it says is not accommodation. It says that JL and his mother simply have short breaks from each other. The fact that JL is put into other accommodation away from home in order to achieve that does not make it a provision of "accommodation" within the subsection.
- As Holman J observed in H and others v London Borough of Wandsworth [2007] EWHC 1082 (Admin), there is a factual spectrum which begins with the undoubted provision of accommodation and ends with matters which are not the provision of accommodation, such as the provision of practical assistance with accommodation.
- In my judgment, arrangements of the type that are made for JL at Lough Road can be classed as accommodation within section 20(1) for the reasons I will set out.
- It is important to observe that section 20(l)(c) expressly contemplates that the hiatus in accommodation with the person who has been caring tor the child need not be permanent and can be for whatever reason. Plainly, a child could qualify for accommodation in reliance on section 20(1)(c), therefore, even if it is known that the problem will be relatively short-lived and the period of accommodation needed finite. Furthermore, provision can still be accommodation under section 20(1) even if it is for 24 hours or less. That is clear from section 22(2), and the Secretary of State and the local authority are right to proceed on this basis. Section 22 Children Act 1989 identifies those children who will be treated as "looked after" by a local authority for the purposes of the Children Act. Local authorities have considerable extra duties towards children who are looked after as opposed to those who are not. Children in the local authority's care are looked after children and children who are provided with accommodation under certain provisions of the Act (which include section 20) can also be looked after children. However, section 22(2) limits these children to those who are provided with accommodation for a continuous period of more than 24 hours. This would be otiose if provision lasting no more than a day could not be accommodation at all.
- That there should potentially be a duty (section 20(1)) or a power (section 20(4)) to provide accommodation even where it is not needed for more than 24 hours makes perfect sense. From the child's point of view, the gap in suitable accommodation or care needs to be addressed no matter what the reason for it is and even if it is only likely to be of short duration, particularly, perhaps, where the child is young or disabled.
- It is an interesting feature of Ward LJ's judgment in R (A) v Croydon that he assumes that the assessment of a child's situation under section 20 necessarily ends in an allocation of actual accommodation under section 23. Section 23 applies only to children whom the local authority is looking after so, by virtue of section 22(2), not to those who are accommodated for less than a day. At first blush, therefore, it might be thought that Ward LJ had ruled out the possibility of accommodation of 24 hours of less being required under section 20. I hope I am not mistaken when I hazard a guess that he was not asked to turn his mind to mis issue and that a descent into the sort of detail that has been necessary in argument before me, was simply not required in that case as it was not material to the matter under debate.
- The length of time over which the provision for the child stretches is not, of course, the only factor in determining whether it is accommodation for section 20 purposes. In my view, one must also take account of the character of whatever it is that is provided. Here JL sleeps overnight on a regular basis at premises away from his mother's home. Once one accepts that the fact that each overnight stay at Lough Road does not last more than 24 hours does not stop it from being accommodation, it seems to me that the only possible justification for excluding it from the ambit of accommodation is because its purpose is to give parent and child a short break from each other. I do not see that this should be fatal. Would the same argument be advanced, for instance, if the local authority was taking a child into its care on a voluntary basis to help a parent to get back on his or her feet after some sort of difficulty? I doubt it, even though it might still be described as a respite or short break. It is of some importance, to my mind, that the Lough Road provision is overnight. It would be harder, I think, to describe short breaks confined to the daytime as accommodation. But in the circumstances of this case, I see no obstacle to the provision at Lough Road being described as accommodation.
- That takes me to two further fundamental questions that arise in relation to the section: whether JL appears to require accommodation and whether, if so, this is as a result of LL ("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 in the answers to these questions, which I propose to deal with together, that there lies, in my view, the proper confinement of the ambit of the section 20(1)(c) duty and not in the definition of "accommodation".
- Neither the Secretary of State nor the local authority accept that LL satisfies these qualifying conditions.
- Mr Bowen for the claimants argues that unless short breaks are provided for them, there is a risk that JL will be harmed by LL or that he will have to be taken into foster care and, therefore, he says, JL requires accommodation as a result of LL being prevented from providing suitable accommodation or care for him. He points to LL having pushed JL down the stairs in 2003, according to what she told the psychotherapist. He also points to her own emotional and medical circumstances and to the fact that the local authority's anxieties were such that JL was on the At Risk Register from 2003 until 2006. His submission is that recurrences of acute problems may only have been staved off because of the provision of respite care at Lough Road.
- Whatever the correct legal interpretation of section 20(l)(c) (and I will come to that in a moment), the local authority does not accept that, as a matter of fact, the situation is as acute as the claimants argue. It argues that the claimants' case is inconsistent. It submits that LL's acceptance that JL will just have term time breaks at Lough Road gives the lie to her assertion that she is being prevented from providing suitable accommodation and care for him. If that were the case, she would need breaks throughout the year. I do not accept this submission. I have indicated that my view is that LL was faced with a rigid quota of hours imposed by the local authority. I do not consider that she has indicated that she is content to have only the short breaks at Lough Road that fit within that quota and thereby expressly or impliedly indicated that she can manage with the current level of provision. In my view, it is necessary to look beneath the surface of the status quo at the reality of the claimants' circumstances. Accordingly, I will proceed for the moment on the assumption that Mr Bowen's submission that acute problems may only have been prevented by the provision of respite care at Lough Road is correct.
- The local authority submits that section 20(1)(c) must be taken at face value. It points out that LL has secure and suitable accommodation at her flat. She does not challenge this and I accept that there has never been any question about her ability to provide accommodation in this rather basic sense. The local authority submits that the claimants' case can be distinguished from the decided authorities in which it has been held that a parent is being prevented from providing suitable accommodation and care. It also submits that, on one view, LL does not even want accommodation for him, she just wants more hours' worth of provision
- It may be helpful to set out the authorities to which I have been referred in relation to section 20(1), as they provide some guidance as to the interpretation of it.
- In R (G) v Barnet LBC (above) Lord Nicholls said that "prevented ....for whatever reason" in section 20(1)(c) is to be interpreted widely. He said: "It includes a case where the person caring for the child is intentionally homeless. A child is not to be visited with the shortcomings of his parents."
- In R (L) v Nottinghamshire CC [2007] EWHC 2364 (Admin), Burton J held that a mother was prevented from providing accommodation for her daughter where she had been assaulted by the daughter and the relationship had so badly broken down that she was not prepared to continue to accommodate the child, a feeling which the child reciprocated. At paragraph 39 of his judgment, commenting on a dictum in the judgment of Lloyd LJ in the Court of Appeal in another case, which later found its way to the House of Lords as R (M) v Hammersmith and Fulham LBC [2008] UKHL 14, Burton J made clear that he would have been inclined to the view that serious ill health on the part of a mother and her inability to control her child would also be sufficient to prevent the mother from providing accommodation. In the Hammersmith case, the issue was whether the claimant had been "looked after" by the local authority and was therefore entitled to support under sections 23C and 24B Children Act 1989. The outcome of the appeal was that she had not been. In giving the opinion of the House, Baroness Hale agreed with Burton J's sentiments in preference to Lloyd LJ's. She took the view that the mother may not have been prevented from providing her daughter with any accommodation or care but she was surely prevented from providing her with suitable accommodation or care.
- On the one hand, I can see the similarity between the situation that arose in the Hammersmith case and the situation in this case. Both cases involve parents who, by virtue of factors including illness and particularly challenging circumstances, face difficulties in providing care for their children. However, there are also significant differences, in my view. The mother in the Hammersmith case had actually reached crisis point. In contrast, the fact is that LL is not presently at the point where she has failed to cope. It may well be that this is because she has been in receipt of term time overnight stays for JL at Lough Road but equally there is no question at present of those being withdrawn. The debate is about whether she should have extra hours.
- It seems to me that the problems with which section 20(1) aims to deal are current problems. The subsection has throughout an appearance of the present tense. The child has to appear to the local authority to require accommodation. This does not look, to me, like the sort of wording that would be used were the draftsman contemplating a duty arising if it appeared to the local authority that the child would be likely to require accommodation tomorrow, for example, or would be likely to require accommodation if forthcoming possession proceedings in relation to its home were successful. If one looks at the condition of "having been abandoned" (section 20(1)(b)), it is plain that that condition must be in place at the time of the local authority's consideration. It does not permit of possible abandonment that might be about to happen. If one turns to section 20(1)(c) itself, one might see a significance also in the use of the words "the person who has been caring for him"; does this perhaps indicate an assumption that by the time the child presents to the local authority, that person is no longer caring for the child at all or is no longer delivering "suitable care"? The draftsman of the Children Act 1989 spells out elsewhere in the Act situations where action can or must be taken on the basis of something that will or may happen in the future. The obvious example is section 31 which provides that a court may make a care order where "the child concerned is suffering, or is likely to suffer, significant harm". There is no acknowledgment of future risks in section 20(1). Reinforced by the stringent duty that it imposes, I have concluded that this section is designed to cope with actual crises and not with possible or prospective ones. The local authority has other powers (and duties) to act in relation to these matters, not least by providing for a child under section 20(4), but in my judgment, no duty under section 20(1) arises where the most that can be said is that without assistance, even assistance by way of temporary accommodation, a parent may (or possibly, even, will) be prevented from providing the child with suitable accommodation or care.
- It follows that I do not consider that the overnight stays that JL has at Lough Road are provided under section 20(1). I do not have to go so far as to say that short breaks can never come within that section. That issue would have to be determined if it arose in a particular case.
Section 2CSDPA 1970
- I do not see how respite at Lough Road could have been provided under section 2 either. The list of matters covered by that section will not stretch to fit it. It was suggested that Lough Road might be classed as a holiday or recreational facility but I do not consider that it is within the natural meaning of those words. One has to remember in this regard that there are specific provisions concerned with accommodation for children, certain of which, as I have found, can cover provision such as Lough Road. Why should one shoehorn such provision into section 2 as well?
- The other matters that might be addressed by the provision of hours of support to LL and JL include direct payments to buy support services and outreach support within the home. It seems to me that these are potentially within section 2(1)(a).
What role can eligibility criteria have?
- I have already said that eligibility criteria can have no role in relation to the local authority's section 20(1) duty. However, for the reasons I have set out, this local authority was not making any provision for the claimants under this section.
- In contrast, as sections 17 and 20(4) Children Act 1989 give rise to powers not duties, eligibility criteria can, in principle, be used in conjunction with these sections, providing, of course, that the use of the criteria does not conflict in any given case with the fulfilment of the local authority's general responsibilities to children under the Children Act 1989. However, the form and operation of the eligibility criteria in this case are open to criticism, in my view. I will return to this question below.
- First I must deal with the rather more problematic question of the role of eligibility criteria in relation to section 2 CSDPA 1970, because part of the provision which was under consideration in the claimants' case was, as I have found, provision under this section.
- In my judgment, if eligibility criteria are to be used in conjunction with section 2, their role must be properly confined so that resources considerations are not allowed to stray beyond the territory dictated by Barry. As the Department of Health guidance which followed Barry (LASSL(97)13) said, "the judgment does not give authorities a licence to take decisions on the basis of resources alone. Authorities must still take account of all other relevant factors.". Eligibility criteria can therefore certainly be used to determine whether a particular child is within the pool of people for whom, having regard to its resources, the local authority might be prepared to provide under the section, either generally or in relation to particular types of benefit included in the section. They cannot be used to limit provision to an individual once the local authority has determined that it is necessary in order to meet his needs to make arrangements from the list in section 2. Having decided that, the local authority must make the arrangements.
- The FACS guidance sets out, in paragraph 16, an eligibility framework which it says local authorities should use to describe the circumstances that make individuals with disabilities, impairments and difficulties eligible for help. It is graded into four bands which describe the seriousness of the risk to independence or other consequences if needs are not addressed, ranging from critical to low. Needs related to critical consequences should be prioritised ahead of those related to substantial consequences, those related to substantial consequences ahead of those related to moderate consequences and so on.
- This local authority's eligibility criteria list all sorts of items which may be relevant to the degree of need of a child, both by virtue of his own circumstances and by virtue of considerations to do with his family and environment. Features are listed in various categories and where a particular feature exists for a child, a score of points is attributed to it. So, under the heading "Parenting capacity", for example, one feature is "The main carer's capacity is limited by physical or mental ill health including drugs and alcohol". If this feature is not present at all, the score would be 0. If the carer suffers either physical or mental ill health, the score will be 1, or (as is the case in JL's assessment form) where both are present, the score is 2. The scores for the whole form are then totalled. Unless the child scores 15 points, he will not be eligible for support in addition to the sort of services that are available to children generally. So far so good; there is, in my judgment, no problem with this approach at all. It identifies, from those who present themselves to the local authority for help, the families who have the more pressing needs and should be eligible for further consideration.
- There are then three levels of need above this entry point, low level (16-19 points), medium level (20 - 24 points) and high level (25 points and above). Low level need attracts 3 "support hours" per week, medium level 6 hours and high level 12 hours. It is this banding system which, in my view, is not appropriate. If the local authority is satisfied that it is necessary, in order to meet a child's needs, to make arrangements within a particular category on the section 2 list, it must make those arrangements. Once this point is reached, considerations such as a finite budget and sharing out resources to reach a greater number of people no longer play a part. This local authority has chosen to make provision by allocating hours for the parent to "spend" rather than in allocating services directly or providing particular items. In many cases, the hours allowed will, no doubt, be quite sufficient to make the arrangements that the local authority is obliged to make. I do not see, however, how there can be any certainty that a strict, banded approach with a ceiling of 12 hours will, in every case, amount to making arrangements for the section 2 provision that the local authority has determined is necessary to meet the needs of the particular child. This must particularly be so when one takes into account that the hours allocated do not just cover section 2 needs but also other types of provision as well.
- It follows that I do not consider that the eligibility criteria, as presently constructed, are a proper means to carry out what might be described as the second stage of the process required under section 2 i.e. that part of the process in which resources can play no part.
- Were the local authority to have demonstrated that it retains a residual discretion and exercises it when necessary, that may well have cured the defect. However, for the reasons I have already set out, I do not consider that that is the position here.
- I indicated earlier that I would say more on the question of the form and operation of the eligibility criteria in this case. The first matter with which I want to deal is a question of the process adopted by this local authority in applying the eligibility criteria to JL's case. The second is an issue concerning the lack of specificity in the criteria, which purport to apply to powers and duties alike. The third relates to the local authority's duties under the Disability Discrimination Act 1995 and I will return to that in a separate section of this judgment.
- Although I have determined that there is no reason in principle why eligibility criteria should not be used in conjunction with sections 17 and 20(4), it seems to me that the local authority in this case employed the wrong procedure in using their eligibility criteria to assess JL's case. FACS makes clear (for example in paragraph 42) that eligibility must be determined following assessment. The information collected in the assessment is used to identify risks - in the case of adults, risk to independence. Those risks are then compared to the eligibility criteria and, through identifying those that fall within the criteria, professionals should identify eligible needs. The same procedure must surely be followed in relation to children. The duty to carry out a core assessment is well known and was freely acknowledged and accepted by this local authority in relation to JL. As I have said earlier, the eligibility assessment form, albeit with the short narrative that follows it, is not a substitute for the core assessment. It was inappropriate to introduce major changes into JL's provision simply on the basis of the scores in that eligibility assessment form. By the time the core assessment reached completion, the status quo was already established and there is no sense that it could be changed. In JL's case, he had already been put in the highest band so the fuller information obtained from the core assessment would not have helped him in relation to those parts of his support which were being provided under section 17 and section 20(4). However, the core assessment was very material in a consideration of his needs generally and, specifically, would have helped to establish whether the circumstances fell within section 20(1) and in relation to provision under section 2. In other children's cases, the fuller information obtained in the core assessment might materially affect their score on the eligibility assessment and therefore enable them more accurately to be placed in the correct band.
- Turning to the second matter, I see it as a fundamental flaw in this local authority's criteria that they are designed to be used in evaluating entitlement to various different types of provision, in relation to some of which they are not appropriate, for the reasons I have set out above. To have one uniform set of eligibility criteria, potentially covering support provided under statutory provisions which involve a duty as well statutory provisions which confer a discretion, is not acceptable. The problem is compounded by the failure to identify, clearly or at all, for the person presenting their case to the local authority, under which section the local authority is considering providing support. Both of these matters need to be addressed. The local authority needs to articulate clearly that the eligibility criteria have no place in relation to section 20(1). It also needs to reconsider what form of eligibility criteria can properly be used in relation to section 2 CSDPA 1970 and then to differentiate these criteria from those which are used in relation to sections 17 and 20(4) Children Act. In this particular case, these proceedings have led to a close analysis of which statutory provision is in play, revealing that it is only in relation to section 2 provision that the eligibility criteria are problematic. This sort of scrutiny is not normally available and the local authority therefore needs to be a great deal clearer about its process so that everyone can be sure that it is meeting the needs of disabled children appropriately.
Disability Discrimination Act 1995
- I turn lastly to the argument that, in introducing the eligibility criteria, the local authority has fallen foul of the Disability Discrimination Act 1995 (DDA 1995). The argument of the claimants is not that the local authority has discriminated against JL personally in carrying out its functions. It is that the local authority has failed to comply with section 49A DDA 1995.
113. Section 49A sets out the general duty of every public authority. It is as follows:
"(1) Every public authority shall in carrying out its functions have due regard to—
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
(e) the need to promote positive attitudes towards disabled persons; and
(f) the need to encourage participation by disabled persons in public life.
(2) Subsection (1) is without prejudice to any obligation of a public authority to comply with any other provision of this Act."
- The duty in section 49A applies both when the local authority is drawing up its criteria and when it applies them in an individual case, both of those being an aspect of carrying out its functions.
- The claimants submit that by imposing a maximum of 12 hours for provision, in order to assist in one of the local authority's stated aims i.e. to make provision to more disabled people, the local authority may have extended opportunity for some disabled people (those who are less disabled) but may also have curtailed it for others (the more disabled). They argue that this is not consistent with the objectives in section 49A(c), (d) and (f), to which the local authority should have had due regard.
- The local authority protests that the criteria were designed to promote those objectives. Its intention was, it says, to ensure that the most support went to those families with the highest needs; the greater the disability, the more substantial would be the service provision. This is the scheme that it built into the criteria. If there is any discrimination, it says, then it is against people who are not disabled, not against people who are.
- The local authority response misses the point, in my view. This case itself is a clear example of the problem. The imposition of a cap on support at 12 hours a week led to a huge reduction in the assistance provided to JL. That had the capacity to render him and his family less able to cope with his disability and, therefore, to diminish his equality of opportunity vis-a-vis able bodied people and to discourage rather than encourage his participation in public life. Whether it did or not is not a matter upon which I wish to express an opinion; further assessment will be necessary to determine that. However, it is possible to see that, depending on a family's particular circumstances, the result of the ceiling on support might be to deprive a child of features of his support which were critical to his functioning, especially if he was particularly needy. The saving in hours may have enabled the local authority to improve the lot of another, perhaps less, disabled child and secured greater equality of opportunity for him but that does not remove the disadvantage to the more disabled child.
- In R (E) v Governing Body of the Jews Free School [2008] EWHC 1535 (Admin), Munby J said (of an equivalent provision in the Race Relations Act 1976)
"....it is not enough, if the section 71 duty is to be complied with, merely to be able to point to the existence of a nondiscrimination policy.... Proper compliance with section 71 requires that appropriate consideration has been given to the need to achieve statutory goals whose achievement will almost inevitably, give the words "eliminate" and "promote", involve the taking of active steps."
- Sedley LJ, in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, described compliance with section 71 not as "rearguard action following a concluded decision but as an essential preliminary to any such decision."
- In R (Baker) v Secretary of State for Communities and Local Government and others [2008] EWCA Civ 141, again dealing with section 71, Dyson LJ said:
"37. The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed. The form of words suggested by Mr Drabble to which I have referred above may not of itself be sufficient to show that the duty has been performed. To see whether the duty has been performed, it is necessary to turn to the substance of the decision and its reasoning."
38. Nevertheless, although a reference to section 71(1) may not be sufficient to show that the duty has been performed, in my judgment it is good practice for an Inspector (and indeed any decision-maker who is subject to the duty) to make reference to the provision (and any relevant material, including the relevant parts of the Code of Practice and Circular) in all cases where section 71(1) is in play. In this way, the decision-maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.
- The local authority submits that it has had regard to section 49A. However, there is no audit trail confirming that the local authority has complied with its DDA duty or even had reference to it at all. The local authority has produced no documentation to demonstrate a proper approach to the question. There is no evidence that a proper impact assessment was carried out to see how the proposals were likely to affect particular groups of disabled children. In fact, very little was offered by way of submissions on this issue during the hearing in front of me, although I was invited, quite properly, to pay attention to the fact that if the eligibility criteria were to be struck down as a whole, that would place the local authority in a difficulty. It was urged that this was a powerful reason to be careful in granting relief to the claimants on this ground.
- It may well be that an accident of timing accounts, in part, for the situation in which the local authority finds itself, coupled, I think, with a failure to recognise properly that its eligibility criteria had the capacity not only to improve the lot of some families but also to cause significant problems for certain disabled children. The local authority's report on the question of eligibility criteria is dated June 2006 and the relevant DDA provisions did not come into effect until December 2006. However, it was the Disability Discrimination Act 2005 which inserted section 49A into the DDA, so the forthcoming change should have been well known to the local authority by June 2006. Furthermore, by the time of the introduction of the criteria in February 2007, the legislation was in force and the local authority was obliged to comply with it. It was not excuse that its criteria had already been drawn up by then.
- Of course, the mere absence of an explicit reference to the equality duties of the local authority would not be fatal were it to be clear from other evidence that the local authority had complied with its s 49A duty. One might say this is particularly so when one bears in mind that Dyson LJ's statement of good practice was not made until 2008, well after the eligibility criteria in this case had been introduced. However, where the local authority cannot produce any documentation relating to the eligibility criteria which makes reference to the duty and there is no real identification of the sort of factors that it makes relevant, it is obviously difficult to conclude that there has been compliance.
- In all the circumstances, I am driven to the conclusion that the local authority has failed to have due regard to the matters contained in section 49A when planning and drawing up the eligibility criteria scheme. There is no evidence that it has revisited the issue subsequently either. It follows that it was not only the initial assessment under the criteria that was flawed but also later applications of the criteria, including in this case the July 2008 core assessment.
The need for guidance
- Without question, the use of eligibility criteria in determining provision for children is a very complex area. It is not possible in a judgment of this type to provide comprehensive guidance for local authorities generally as to when, precisely, it is acceptable to use eligibility criteria and as to the form they should take. The FACS guidance seeks to fulfil that role in relation to adult services and there is no doubt that there is a pressing need for guidance in relation to children's services. Having read FACS carefully, I am not sure that if I were attempting, on behalf of a local authority, to determine how to use eligibility criteria and to draw up those criteria, I would find in it all the clarity and assistance I would need. The lessons of experience will, I am sure, enable those responsible for any new guidance to make it more comprehensive and practical. It is not so much that guidance would homogenise practice across the country; I accept that regional variations are inevitable, given local needs and resources, and FACS spells that out explicitly. It should, however, ensure that the role of eligibility criteria is better understood and confined within its proper ambit.
Remedies
- There have been a number of flaws in the assessment of JL's needs. For the reasons I have set out above, the use of the eligibility criteria in their present form is not compatible with the local authority's duty under section 2 CSDPA 1970. The use of eligibility criteria in relation to matters falling within section 17 and section 20(4) Children Act 1989 is, in principle, acceptable, but these particular criteria were drawn up, and used in JL's case, without the local authority having due regard to the matters set out in section 49A DDA 2005. In addition, in my judgment, the local authority approached the assessment of JL in the wrong order, embarking first upon an assessment of his needs by the rigid tool of the eligibility criteria and only subsequently, by means of a full core assessment. That core assessment was, as I have concluded, infected by the eligibility criteria and did not represent a proper untrammelled assessment of need. For all these reasons, the local authority must now reassess JL's needs according to law. In order to do this, it will either have to depart from the eligibility criteria altogether or, if it is intent upon using them in his case, revisit them so that they are no longer tainted by the problems identified in these proceedings.
- I would be grateful if counsel could attempt to agree the form of the order. If there are no matters of dispute or requiring further argument, it will not be necessary for there to be any attendance when the judgment is handed down. However, if there are matters arising, they can be aired at that time, provided that they are first put in writing and served on the other parties. In these circumstances, it would be helpful if an indication could be given to my clerk of the time estimate for the hearing so that a proper listing can be made.
Post Judgment Discussion
MRS JUSTICE BLACK : I hand down the judgment in the form that has already been circulated with corrections incorporated.
MR BOWEN : May I please your Ladyship. There are a couple of matters which arise for determination in light of the judgment
MRS JUSTICE BLACK : I don't seem to have right at the moment the matters that you sent in.
MR BOWEN : Can I hand up a copy my Lady?
MRS JUSTICE BLACK : Thanks very much I am grateful. I am very sorry about that but I gave it to my clerk in order that he could communicate to you what it was that I wanted to deal with ….
MR BOWEN : My Lady not at all. I understand that the difficulty with the agreed order was the I think the declaration at paragraph 5
MRS JUSTICE BLACK : Generality of paragraph 5?
MR BOWEN : Yes I have had a discussion with my learned friend about that and we both recognise that in view of my Lady's finding that Section 20 sub section 1 does not apply in this case. The what you call fundamental challenge to the eligibility criteria cannot succeed insofar as it relates to the Section 20 point but I think we both agree that in view of your finding at paragraphs 102 and 3 and 106 to 7 about the Section 2 of the CSDPA which you found did include some of the services that could have been provided do fall in Section 2 and also in view of your finding in relation to Section 49A that a declaration in those terms was appropriate
MRS JUSTICE BLACK : I don't think that I would suggest that it didn't have its foundation in what I found in the judgment the question was was it a proportionate response to this claimant's challenge
MR BOWEN : Yes well I think for two reasons in my respectful submission it would be appropriate to make that declaration
MRS JUSTICE BLACK : Are you both agreed that its appropriate in the light of my findings to make the declaration because I just wanted to hear what you both thought about it. If you are agreed on it then so be it
MR BOWEN : Well I think the main reason my learned friend is probably agreed on it is that he wants to appeal
MRS JUSTICE BLACK : I know
MR BOWEN : And he needs an order to appeal against
MRS JUSTICE BLACK : Well he does have an order to appeal against that is that it is unlawful in relation to this claimant
MR BOWEN : I understand but I think in view of the terms in which my Lady has expressed the findings particularly about the application of Section 2 and Section 49A certainly I would be submitting that an order in those terms I mean obviously it could be taken to include unlawful on lots of different grounds because it only says for itself that the eligibility criteria are unlawful but obviously any order must be read in the light of the judgment and the judgment makes it clear that is only unlawful in relation to the Section 2 point and the Section 49A point so I would respectfully request and submit that the order in those terms is appropriate but if it was felt more appropriate to make it clearer the grounds on which it was being ….
MRS JUSTICE BLACK : But that wasn't my difficulty and the Section 49A problem takes the whole thing anyway so the fact that in your particular case it only had an impact in relation to some statutory provisions it didn't actually I thought matter with regard to that. I am not saying that this is not appropriate as a lawyer, I was asking whether it was proportionate in this case?
MR BOWEN : Well I would respectfully submit that it is. I mean what you are not doing what we haven't asked you to do is to quash the eligibility criteria
MRS JUSTICE BLACK : No
MR BOWEN : What you were doing is you were declaring it to be unlawful in view of your findings in the judgment now what the local authority then does is up to the local authority I mean obviously it can't then apply those eligibility criteria in other cases without having taken on board my lady's judgment but it leaves it up to the local authority how they go about doing that and so for that reason I would certainly respectfully submit that a declaration is a more proportionate response in that sense than one of prerogative elements.
MRS JUSTICE BLACK : Yes. So those few have had their assessments on the basis of this will be left if they won't contend with it they would have the judgment in this case upon which to rely -- they would have that anyway though
MR BOWEN : They would have that anyway and the local authority I mean obviously they are going to have to go away and think about it and I am sure that the local authority will consider itself bound to reconsider other cases on the basis of this judgment, if they don't then they can be sure that people will either be coming back here or going off to the local government ombudsman. But obviously this is a matter for the local authority. In my respectful submission it is only right that in view of your findings a declaration a formal order of the court should be made to reflect those findings, so that's my submission in relation to that and I would my lady add that as far as the Section 49A point is concerned this very issue was looked at by Sedley in the Bapio Action case you will recall one of the passages from his judgment you set out in your judgment where he says that such a finding does not in any way diminish the importance of compliance with Section 71. Now the finding he was referring to was Stanley Burnton J's as he then, was finding at first instance that notwithstanding there had been a breach of Section 71 it would have been fruitless to give to make an order quashing the decision of the question of what Sedley LJ was saying. Well ok it might not have been appropriate, it won't always be appropriate to quash a decision because it doesn't comply with the equality (inaudible) however that does be seen as diminishing the importance of the duty
MRS JUSTICE BLACK : Yes
MR BOWEN : And where it isn't fruitless as it wouldn't be in this case to make some order according in this case the fact that it is being taken in breach of Section 49A then in my respectful submission the court finally can but ought to reflect that in some order of the court. So that's my submission in relation to the order. My Lady I would however ask that we just change, you will see in the preamble we have recorded my Lady's finding that this is the third of the …
MRS JUSTICE BLACK : Yes I am not sure about that phraseology in that paragraph about the short breaks being capable of coming under Section 20 sub section 1. Its not quite expressed as strongly as that. I said I wasn't prepared to find that they couldn't
MR BOWEN : I think the …
MRS JUSTICE BLACK : And that would need to be determined in a case if it came up I think is what I said.
MR BOWEN : Yes. I think …
MRS JUSTICE BLACK : Here we are, no it isn't
MR BOWEN : 96 to 97 I believe my Lady in your judgment.
MRS JUSTICE BLACK : Yes its 97. I don't go so far as to say that short breaks can never come within that section -- that issue would have to be determined if it arose in a particular case. So I am simply saying I haven't considered it to that bitter end yet
MR BOWEN : Yes I understand my Lady. Well what I … I am comfortable, obviously with taking out that part that refers to short breaks care being capable of amounting to a service, but what I would ask and this again is in discussion with my learned friends, you are going to be hearing in due course from Mr Rutledge in relation of the question of permission to appeal. If permission to appeal is to be granted then we would be seeking permission to cross appeal in relation to my Lady's findings under Section 20 (1) on the basis that you found in this particular case the short breaks did not fall within Section 20 (1) and while I am on my feet I may as well just very quickly develop that. Our submission is that the distinction that my Lady makes between essentially current problems, you know …
MRS JUSTICE BLACK : You say I am wrong about the requirement of a present nature …
MR BOWEN : We would respectfully submit that where as here the respite care is introduced at a time when plainly there is some kind of emergency as there was when J was placed on the at risk register then at that point the care …that's the first point of time in which we need to consider it and at that time it would have been being provided under Section 20 sub section 1 and then the next question is has anything changed since then that would suggest its not longer appropriate for it to be provided under Section 20 sub section 1 so has the need for it diminished in any way? And in my respectful submission that does give rise to a point of some importance. It has interestingly been looked at in a slightly different context with Section 117 of the Mental Health Act because the issue arises frequently with Section 117 because it is a provision that is free at the point of delivery. Often there is a dispute between whether its Section 117 care or Section 21 National Assistance Act care which can be charged for and there have been a number of cases that have looked at this and I know the ombudsman has looked at this question. At what point does care which has been provided under Section 117 cease to be suitable to be provided under Section 117 care and his ruling was that once it has been provided under Section 117 unless there is some change of circumstances so that the need is diminished then it should continue to be provided under Section 117, or by parity of reasoning if the care is at the first instance provided under Section 20 sub section 1 because there is an acute need for it then the question would be well what has changed since then has the need for it diminished in some way so that one could lawfully suggest what could lawfully change the nature of the provision so although its still in fact the same kind of provision that has been provided under a different statutory provision. So I would respectfully submit that if you are going to grant my learned friend permission to appeal which we oppose but if you accede to his submission then we would ask for permission to cross appeal on that point.
MRS JUSTICE BLACK : Just before we leave the question of the order which logically comes first although I understand why you put it in the way you do …
MR BOWEN : Yes
MRS JUSTICE BLACK : I think we have agreed subject to anything Mr Rutledge says to delete the words "short break care is capable of amounting to a service provided under Section 21 of the Children Act 1989 but that"
MR BOWEN : Yes I think how it would now read would be, well in fact what we both agreed was in fact we should promote it from the preamble to a declaration …
MRS JUSTICE BLACK : Yes, ok, yes
MR BOWEN : So that we also have an order against which to appeal so it would now read "it is hereby declared that" and this would be a further, this would now be a new paragraph 5 the overnight short break service the first claimant is receiving at Lough Road Centre 61-71 et cetera "is not currently being provided under Section 20 sub section 1 of the Children Act 1989" or in fact take out "currently" not being provided …
MRS JUSTICE BLACK : Yes
MR BOWEN : "Under Section 20 sub section 1" and then and then to the defendant's eligibility criteria et cetera"
MRS JUSTICE BLACK : Right.
MR BOWEN : Shall I read that out again my Lady
MRS JUSTICE BLACK : No you don't need to for the moment. Just going through the hereby ordered that I didn't have any difficulty with those three first paragraphs.
MR BOWEN : Permission to appeal
MRS JUSTICE BLACK : We will deal with in a moment. Then it is hereby declared that. I had one difficulty about the wording of paragraph 5. You have said apply to the claimants for the first time on or about 14 March. It was used in relation to the claimants on or about 14 March but the actual cut which I would have said was more properly described as the application of the eligibility criteria wasn't brought in until October.
MR BOWEN : So if we were to make it used in relation to the claimants for the first time?
MRS JUSTICE BLACK : I don't know what .. That is the best I could do on the hoof but there may be a better word to indicate that it was the actual calculation that was done then wasn't it?
MR BOWEN : Yes
MRS JUSTICE BLACK : But they weren't actually implemented.
MR BOWEN : Well I wonder whether if we were to use the term applied in relation to the implemented in October
MRS JUSTICE BLACK : Or you could say under which the claimants were assessed for the first time resulting in …
MR BOWEN : "Were assessed", so it would now read "the defendants eligibility criteria for disabled children's services introduced by the defendant in or about February 2007 "
MRS JUSTICE BLACK : "Under which"
MR BOWEN : "Under which the claimants were assessed for the first time"
MRS JUSTICE BLACK : "on or about 14 March"
MR BOWEN : "On or about 14 March, but most recently applied in a revised core assessment dated 9 July 2008, are unlawful"
MRS JUSTICE BLACK : Yes. It's a pedantic complaint about "applied" but it …
MR BOWEN : Well my Lady I am afraid that's our business
MRS JUSTICE BLACK : And the core assessment paragraph is absolutely fine and then the rest of it I don't have a problem with either so that brings us then to anything that Mr Rutledge wants to say about the body of the order and then about his appeals
MR BOWEN : Yes. Before I sit down my Lady just so that I make it clear. If you do grant permission to appeal obviously in the ordinary course of events the order that you make will be stayed, the one order that we would respectfully submit should be implemented even if you were to grant permission would be at paragraph 8 "that the claimant has the same level of community care reinstated" because it may be many months before this matter …
MRS JUSTICE BLACK : Do I have a power to do that actually? In that …
MR BOWEN : Would you have power?
MRS JUSTICE BLACK : Yes what power is it?
MR BOWEN : Well you have made you will have made an order among other things quashing the reassessment …
MRS JUSTICE BLACK : Quashing 14 March 2007 matter and anything which flowed from it …
MR BOWEN : Exactly
MRS JUSTICE BLACK : Yes
MR BOWEN : and in fact we …
MRS JUSTICE BLACK : So it isn't
MR BOWEN : Maybe what we need is an order quashing the reassessment in addition to the declaration
MRS JUSTICE BLACK : Yes but then I don't need to make an order that you go back to the 24 hours because they haven't got anything except that left have they?
MR BOWEN : Well that is true …
MRS JUSTICE BLACK : It's a declaration rather than an order
MR BOWEN : Yes it's a … for the avoidance of doubt provision so if we were to introduce a further paragraph under a new paragraph 5 which would be the core assessment which would probably be originally well the core assessment dated 9 July 2008 is hereby quashed. And if we were to add to that the local authority shall reinstate the level of provisions made prior to 14 March 2007. So we could take out the declaration in relation to that provision …
MRS JUSTICE BLACK : Only that they should reinstate the 24 hours unless they manage to do what would be a compliant assessment and that comes out with a different figure
MR BOWEN : Pending any …
MRS JUSTICE BLACK : Pending … yes.
MR BOWEN :: … Lawful reassessment
MRS JUSTICE BLACK : Because if they have then got to go out and deal with it even whilst the appeal is pending if there is an appeal then they can …
MR BOWEN : Well exactly they might go off …
MRS JUSTICE BLACK : Hurry things up
MR BOWEN : Come up with new eligibility criteria, new assessment even while the appeal is pending
MRS JUSTICE BLACK : Or decide not to use the eligibility criteria in this case I mean who knows what approach they are going to take in those circumstances but they ought to have the option of dealing with it lawfully
MR BOWEN : So that would now read my lady "the core assessment dated 9 July 2008 by which the eligibility criteria were applied in the claimant's case is hereby quashed and the local authority shall reinstate the level of provision "
MRS JUSTICE BLACK : You haven't got there yet because they actually applied the eligibility criteria in limbo without the core assessment earlier than that
MR BOWEN : Yes in which case and the reduction
MRS JUSTICE BLACK : Why don't you think about this whilst Mr Rutledge tells me about the other things
MR RUTLEDGE : My Lady subject to that last point I am content with the reformulation of paragraph 5. My Lady when I read the draft judgment it seemed to me that the Lady's finding on Section 49A dealt the fatal blow to the eligibility and it would be unsatisfactory to have a declaration which says that criteria are lawful for one purpose but unlawful for another and so it seemed to follow from your Lady's judgment that the criteria were bad and that the court ought to say so that would seem to be consistent with your Lady's …
MRS JUSTICE BLACK : Well I don't have a difficulty with that but I had very much in mind your complaints about the delay and the people who had been assessed under these eligibility criteria when I was asking to be addressed on this issue. Having said that the point which deals with it I think really is that I am not quashing the eligibility criteria or any of the other assessments which were carried out under them. They are going to be dealt with on an individual basis
MR RUTLEDGE : My Lady yes. But nonetheless this was a claim this is part of my ground for permission to appeal this was a claim which was brought both at a macro level and a micro level on not only on the facts of the particular case but a challenge generally to the lawfulness of the criteria I accept that entirely. My Lady I respectfully agree with my friend about promoting the third preamble to a declaration because if this matter were to go further then it would be necessary to have a target as it were for both parties it seems that is to say my Lady's decision in relation to the applicability of Section 20 sub section 1 so I would respectfully support that submission. Perhaps I could hear what my friend says by way of reformulation. I respectfully dealt whether the court has power to order Islington to provide a particular level of care. I do have instructions to I should say I do have instructions to agree the terms of paragraph 8.
MRS JUSTICE BLACK : I would have thought you must have done because this was proposed and agreed in draft
MR RUTLEDGE : Yes, yes and I took obviously I took instructions as one would expect took instructions on that specifically for that purpose
MRS JUSTICE BLACK : But whether I should actually order it I am not sure
MR RUTLEDGE : Well it follows necessarily from my Lady's judgment, but my
lady has quashed a decision leaving the old decision in place and it must follow so my submission that paragraph is not strictly necessary but my instructions are that is how Islington will proceed as one would understand because unless and until his judgment is upset they will comply with it.
MRS JUSTICE BLACK : Yes
MR RUTLEDGE : My Lady can I make my application for permission I can do it very briefly in this way. Firstly Islington is grateful to the court for the detail and the care with which it has taken on this careful judgment if I may respectfully say so. I don't ask for permission under the first limb of 52 36. I put my application firmly on the basis of other compelling reason but my Lady has recognised in paragraph 125 not only the importance of this case but the lack of guidance, in particular the fact that the facts guidance or is there an equivalent in relation to children's services of the facts guidance for local authorities who would therefore look to the court for judicial guidance. This is an appropriate case for consideration for an appeal court because it does raise at least three very important questions which have implications in terms of resources and provision of children's services. The first is the relevance of resources to a local authority's functions under Section 20. It is fair to say that I didn't advance positive submissions during the hearing on that but I reserved my position.
MRS JUSTICE BLACK : You mean to 20 sub section 1
MR RUTLEDGE : 1 yes my Lady yes. I think it was agreed that in relation to the powers resources can be …
MRS JUSTICE BLACK : … yes my finding is that Section 20 sub section 1 doesn't apply here but I have said something about
MR RUTLEDGE : My Lady has said something about …
MRS JUSTICE BLACK : … the absolute nature of the duty
MR RUTLEDGE : Yes, yes. Secondly the applicability of eligibility criteria generally in this field. I recognise immediately that my Lady has made some helpful findings for the borough in relation to the provision of this arrangement of Lough Road. And thirdly the link to that is the legal basis for providing respite services. So we say that this is a grey area considerable light has been cast upon it by my Lady's judgment, but it's a case which could benefit in my respectful submission from consideration at appellate level so that guidance could be given. This is an appropriate case to take because there is a range of issues before the court and as I have said earlier it's a challenge not only to the specific decision making but to the generality and if I may respectfully say so the court would have the benefit of a very full and detailed analysis in this court with which to approach the matter. I am not instructed to apply for a stay so there should be no reason to think that the claimants would suffer detriment in the event of an appeal. My Lady that is the basis on which I am instructed to ask for permission
MRS JUSTICE BLACK : It is conventional though when you go to the Court of Appeal to go there saying and the first instance decision is not correct for the following reasons and so in order to consider whether to give you leave to appeal I need really to think about that and what you would actually be arguing. I can see paradoxically that Mr Bowen might well have an argument about the interpretation of Section 20 sub section 1 but he has got what he needs out of this and he doesn't want to advance it in a freestanding way
MR RUTLEDGE : No
MRS JUSTICE BLACK : So what is your comparable persuasive point
MR RUTLEDGE : My Lady I put it in that way relying very firmly on the disjunctive in the Rule
MRS JUSTICE BLACK : I haven't got the White Book
MR RUTLEDGE : As my Lady knows permission may be given only where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard
MRS JUSTICE BLACK : That doesn't mean though that you don't have to say its …
MR RUTLEDGE : … it's a
MRS JUSTICE BLACK : Its wrong for the following reasons. We don't think its terribly likely to succeed on appeal but it is still wrong for these reasons I would read that.
MR RUTLEDGE : (Inaudible). No. If I had to pin colours to the mast well clearly I do. I would respectfully say that the Lady was wrong to characterise any form of respite provision as falling in Section 20 sub section 1
MRS JUSTICE BLACK : But that's not actually fundamental to this judgment because I decided it in your favour on another …
MR RUTLEDGE : My Lady I recognise that entirely but nonetheless I think my Lady has held that its at least capable of falling within Section 20 sub section 1 …
MRS JUSTICE BLACK : I said I was not finding that it was incapable of falling within it I haven't actually said what my view is about …. It is or it isn't capable … I have said it can be accommodation short break care …. Accommodation, but I don't think I have gone so far I think that the phraseology was carefully chosen in that paragraph that we have looked at
MR RUTLEDGE : But I with respect I don't doubt for a moment that care was taken over but my Lady asked me what the argument would be and I suspect it would be as I argued in the hearing that respite care cannot by its nature ever fall within 20 sub section 1. The Secretary of State said its within the power of sub section 4 I advance section 70 my Lady that would be the reason we would say with respect that the decision is wrong. I don't think I can assist any further …
MRS JUSTICE BLACK : I think I … As I have taken it Mr Bowen is not advancing a freestanding application for leave to appeal he has only wanted to hang it on to yours if you go to the Court of Appeal. And it seems to me that it is not appropriate. Actually I do think that this is an extremely difficult area but as things stand in relation to this particular judgment I am not persuaded that there is an argument in relation to which it would be appropriate that I should give permission to appeal. If you can … I don't doubt that this of importance to local authorities right the way across the country but I am not persuaded that this is actually more than an academic appeal insofar as this local authority is concerned.
MR RUTLEDGE : My Lady I am very grateful for that
MRS JUSTICE BLACK : OK.
MR BOWEN : In light of that indication I would suggest that the order would now read that under this hereby order that 1 to 3 is still the same so the permission to amend et cetera, permission to apply for judicial review is granted, the claim is allowed upon the grounds set out in the judgment. Then 4 will be the defendant's application for permission to appeal is refused.
MRS JUSTICE BLACK : Yes
MR BOWEN : And then these next two are new. 5. Core assessment dated 9 July 2008 by which the eligibility criteria will apply in the claimant's case, and the decision to reduce the claimant's community care provision following the reassessment of the claimant's needs under the eligibility criteria on 14 March 2007 (but implemented in October 2007), are quashed. And then 6. The local authority shall as from 1 April 2009 reinstate the level of provision made prior to 14 March 2007 pending any lawful reassessment of the claimant's needs
MRS JUSTICE BLACK : Yes if Mr Rutledge is happy that that should be expressed as an order even though we have raised the question of the power to make such an order so be it
MR BOWEN : Well I mean certainly you have power to do it having found that the assessment was unlawful, the decision was unlawful. You certainly have power to do it.
MRS JUSTICE BLACK : I think I've got power to order them to reassess and thus the reassessment happens. The old provision will come back in because they haven't got anything else. Whether it goes further than that I am not particularly …
MR BOWEN : Well the point is that is that they are bound to continue to provide the level of provision that they were making prior to 14 March 2007 until they make a lawful reassessment. They carried out a reassessment but you found it to be unlawful therefore it follows that they must reinstate it. Now whether this is an avoidance of doubt provision …
MRS JUSTICE BLACK : Yes exactly. Whether it's a restoration or an order I don't know
MR BOWEN : And if my learned friend is adamant then I am happy to relegate it for declaration. It will have exactly the same legal effect.
MRS JUSTICE BLACK : He didn't seem very adamant but if he is then so be it
MR BOWEN : My Lady I am content
MR RUTLEDGE : My Lady I am content.
MR BOWEN : So that will be 6 then 7 will be the first declaration that the overnight short break service the first claimant is receiving at Lough Road is not being provided under Section 20 sub section 1 of the Children Act so that's the provision that if an appeal is equal we can cross appeal that point as and when. Then 8 is the defendant's eligibility criteria are unlawful that's the provision that my Lady has already seen and then further orders as already set out. And then my Lady if you are content with that then I will arrange for that to be sent to Mr Pointer … to be sealed
MRS JUSTICE BLACK : Thank you and I am very grateful I know it has been problematically to come today but thank you very much indeed for doing so because it has been useful.
MR BOWEN : Can I reiterate my learned friend's remarks about the thanks for the very careful judgment which I am sure took many, many hours.
MRS JUSTICE BLACK : Thank you very much to both of you
MR BOWEN : Thank you my Lady.
MRS JUSTICE BLACK : Do go when you are ready because I am going to fill this in and I have another case waiting ….
