BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> E, R (on the application of) v London Borough of Islington [2017] EWHC 1440 (Admin) (30 June 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1440.html Cite as: (2017) 20 CCL Rep 148, 20 CCL Rep 148, [2017] ELR 458, [2018] PTSR 349, [2017] WLR(D) 453, [2017] EWHC 1440 (Admin) |
||
[New search] [Printable RTF version] [View ICLR summary: [2017] WLR(D) 453] [Buy ICLR report: [2018] PTSR 349] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| THE QUEEN (On the application of E) |
Claimant |
|
| - and - |
||
| LONDON BOROUGH OF ISLINGTON |
Defendant |
____________________
(instructed by Hopkin Murray Beskine Solicitors LLP) for the Claimant
KELVIN RUTLEDGE QC
(instructed by the Legal Department, London Borough of Islington) for the Defendant
Hearing dates: 29 and 30 March 2017
____________________
Crown Copyright ©
Deputy High Court Judge Ben Emmerson QC :
Introduction
Ground 1: E's right to Education
The factual history
"[E] is top priority for an in-year application under Islington's Fair Access Policy (transition and uncertainty, alongside beginning her recovery from domestic abuse). [E] is not currently in education. As a result, she is at risk of experiencing poor outcomes. School offers children who have experienced domestic abuse a safe place to learn, grow, make friends and participate in school life. [E] left behind [her] school, [her] friends, [her] home and [her community]. [E] enjoyed school and excelled in literacy…[E] requires a supportive and nurturing environment to achieve her potential, and gain a sense of belonging during a period of uncertainty."
"The family have moved between boroughs three times since they became homeless in May 2015. On Thursday 28 April 2016 [C] was required without notice to move between authorities, for the fourth time in a year. This will mean that [E], the oldest child and the only child of school age will have been to four different schools in the course of a year. However, she has not been at school at all since the end of April. This is because after some significant delay when the family were required without notice to move to Fulham, [E] was found a school place in Hammersmith and Fulham. She obviously cannot travel from Islington to Fulham every day. Regrettably, she requires a new school place. Her mother has not received any assistance from the authority, although it was the authority that arranged the move that would obviously disrupt schooling. [E] of course has a statutory right to education, as well as a human right contained in [article 2 of the First Protocol]. You should either provide her with a school place immediately, or arrange for alternative provision in accordance with section 19 of the Education Act [1996]."
The core characteristics of article 2 of the First Protocol in summary
Identifying the central issue
"It is only if a denial of a Convention right is established that one examines domestic law in order to discover which public authority, if any, is liable under [section] 6. This is an inquiry which can sometimes give rise to difficult questions of causation and can make it necessary to ask which public authority bore the primary duty to act in accordance with the Convention."
Discussion
"As noted above, the Convention and its Protocols do not tolerate a denial of the right to education. The Government confirmed that Russian law did not allow the exercise of that right by children to be made conditional on the registration of their parents' residence. It follows that the applicant's children were denied the right to education provided for by domestic law. Their exclusion from school was therefore incompatible with the requirements of Art, 2 of Protocol No. 1."
"The Strasbourg jurisprudence…makes clear how article 2 should be interpreted. The underlying premise of the article was that all existing member states of the Council of Europe had, and all future member states would have, an established system of state education. It was intended to guarantee fair and non-discriminatory access to that system by those within the jurisdiction of the respective states. The fundamental importance of education in a modern democratic state was recognised to require no less. But the guarantee is, in comparison with most other Convention guarantees, a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state. There is no Convention guarantee of compliance with domestic law. There is no Convention guarantee of education at or by a particular institution. There is no Convention objection to the expulsion of a pupil from an educational institution on disciplinary grounds, unless (in the ordinary way) there is no alternative source of state education open to the pupil (as in Eren v Turkey (Application No. 60856/00) (unreported) 7 February 2006). The test, as always under the Convention, is a highly pragmatic one, to be applied to the specific facts of the case: have the authorities of the state acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils?"
This formulation has been held to be entirely consistent with the approach outlined by Lord Hoffmann in the same case (see A v Essex County Council (National Autistic Society intervening) [2011] AC 280; [2010] UKSC 33).
"The question, therefore, is whether between those dates the school denied the respondent effective access to such educational facilities as this country provides. In my opinion, the facts compel the conclusion that it did not. It invited the respondent's parents to collect work, which they did not. It referred the respondent to the LEA's access panel, which referred him to the pupil referral unit, an educational provider; the pupil referral unit's offer of tuition was declined. The school arranged a meeting to discuss the respondent's re-admission, which the respondent's family chose not to attend. The head teacher's reaction to this non-attendance was criticised in the courts below as over-hasty. Perhaps so. But I am not altogether surprised that she treated this unjustified non-attendance as a repudiation by the family of the pupil-school relationship. She again gave the parents contact details at the pupil referral unit. The LEA's attempts during the autumn to secure the respondent's readmission to the school or admission to another school were thwarted by the family's uncertainty [about] what they wanted. As soon as they made up their minds a place (although not at the school) was promptly found. The retention of the respondent's name on the roll of the school in July, and its removal in October, although much relied on in argument, were events unknown to the respondent and his family at the time, and had no causal effect or legal consequence. It is a matter for regret when any pupil, not least an able pupil like the respondent, loses months of schooling. But that is not a result which can, in this case, be laid at the door of the school."
"15. As I see it, the critical point in all the speeches is that under article 2 of [the First Protocol to] the Convention, a person is not entitled to some minimum level of education judged by some objective standard and without regard to the system in the particular state. The question is that posed by Lord Bingham, namely whether the pupil was denied effective access to such educational facilities as the country provides. As Lord Hoffmann stressed, that is not the same question as the question whether the relevant authority was in breach of a duty imposed by domestic law, as for example, by failing, in breach of section 324 of the 1996 Act, to comply with educational provisions set out in a statement of special educational needs ("SSEN").
16. The question is then whether the pupil has been denied effective access to the system in place. That question will only be answered in the affirmative where his right to education has been so reduced as to 'impair its very essence and deprive it of its effectiveness'."
"45. Was A deprived of an effective education during the relevant period? I recognise that if that question is asked by reference only to what he was provided with between January 2002 and July 2003, it could be answered in the affirmative. However, as Lord Bingham observed, the correct approach is the pragmatic one adopted by the European Court. It was recognised on all sides that what A required was a satisfactory long term solution for his various problems. It was also recognised at an early stage that, in the absence of a considerable improvement in his condition and behaviour, A could not go back to LS. I agree with the judge and the Court of Appeal that any other view was unarguable.
…
50. The fact that it was not said [on the claimant's behalf] that there was an infringement of A's article 2 right to a long term education immediately shows that the correct approach is to consider the problem in the context of the system available and to recognise that solutions take time and money to put in place, sometimes a considerable amount of both time and money, as here. In my opinion the same approach should be adopted to the interim measures. All the professionals were working towards the long term solution, hoping that it would be achieved sooner rather than later. Some interim measures were put in place in the period from January 2002 to July 2003. It is said with apparent force that A was deprived of any meaningful education in that period and, indeed, that A's condition and behaviour deteriorated during that period. Moreover, the account of the facts set out above shows that, at any rate on A's case, there were grounds for criticism of the local authority in not providing more than they did.
51. The question is not, however, whether the local authority were at fault, but whether the limitations on A's education impaired the very essence of his right to education and deprived his right of effectiveness or, as Lord Bingham put it, whether he was deprived of effective access to education. The answer to that question (or those questions) must have regard to the fact that the problems were correctly seen to be short term problems pending a multi-disciplinary 5-day examination of A in order to achieve a long term solution.
52. Even taking A's case at its highest, considerable efforts were made by LS and others to assist A in various ways. They were not limited to the somewhat ineffectual provision of two boxes of educational toys, which were described as "not acceptable education". The local authority were faced with considerable difficulties. There was no home tutor who was available to meet A's needs. Residential care was not available but A was referred to an occupational therapist. However the school did provide a significant number of speech therapy and activity sessions described above.
…
55. The interim efforts made by the local authority were far from perfect and it is arguable that the local authority were both in breach of duty under domestic law in various ways and more generally open to criticism for not doing more than they did but, once one takes account of the fact that what was needed were interim measures pending a long term solution, I do not think that A can succeed at trial. I agree with the Court of Appeal (and with the judge) that, as Sedley LJ put it at para 12, it is not possible "to spell out of this unhappy interlude, with its undoubtedly adverse consequences for both A and his parents, either a failure of the education system or a denial of access to it."
"75. When these passages are read in their context they do not support the proposition that article 2 of the First Protocol imposes on contracting states a positive obligation to provide education that caters for the special needs of the small, if significant, portion of the population which is unable to profit from mainstream education. On the contrary the authorities assume, correctly, that all contracting states have a system of education and limit the positive obligation imposed by article 2 to regulating education in such a way as to give access without discrimination to that system."
"While education is provided by the state for children, as a matter of course, in all member states, it is not possible for them to give an unlimited guarantee to provide education, as that might be construed to apply to illiterate adults for whom no facilities exist, or to types or standards of education which the state cannot furnish for one reason or another."
"79 …Contracting states that provide facilities for the education of adult illiterates are obliged by article 2 to ensure that adult illiterates have access to those facilities. Those states that do not have such facilities are not required by article 2 to establish them."
"I consider that a denial of education under the article can arise in a variety of ways. Obviously, a calculated refusal to allow a pupil access to any form of even basic education will be in violation of the right. But a failure to take steps to provide education when the state authority responsible for providing it is aware of the absence of the pupil from any form of education could in certain circumstances give rise to a breach of the right. If, for instance, a local education authority knows that a child has been asked by a school not to attend that school; and if the authority is responsible for the provision of education to that child; and if it takes no action to supply any alternative to what has been previously provided by the school, it is at least arguable that it is in breach of its duty under article 2 of the First Protocol. I would go further. I believe it also to be at least arguable that an authority with the responsibility for providing education, if it knows that a pupil is not receiving it and engages in a completely ineffectual attempt to provide it, is in breach of the provision."
Was there a breach of article 2 on the facts of this case?
"[T]he attainment of pupils who make in-year moves is markedly lower than their peers, and lower still among pupils who make multiple in-year moves. Only 27% of pupils who move schools three times or more during their secondary school career achieved 5 A* to C grade GCSEs compared to the national average of 60%."
This is the national picture against which the present facts fall to be evaluated.
Which authority bore primary responsibility for the breach?
"14. For the last 60 years the responsibility for ensuring the secondary education of children in this country has rested on what Lord Wilberforce called "a fourfold foundation": Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1046; and see p. 1063. While the legislation and much else has changed, that fourfold foundation has so far survived.
15. The first of the four elements identified in the Education Act 1996, which governs this case, is the parents of a child of compulsory school age. By section 7 the parents are under a duty to cause every such child to receive efficient and suitable full-time education "either by regular attendance at school or otherwise". The serious character of this duty is reflected in the criminal penalty attaching to unjustified breach of it. The second element is the Secretary of State, charged by section 10 of the Act to promote the education of the people of England and Wales. The third element is the LEA, required by section 13(1) of the Act to secure that efficient secondary education is available to meet the needs of the population of their area. The LEA is also required, by section 19(1), to:
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.
A school established and maintained by the LEA which is specially organised to provide education for such is known as a pupil referral unit: section 19(2). The fourth element consists of the maintained schools themselves."
"As you will be aware the Home Authority has responsibility for securing educational provision for any child resident in its borough.
I have recently received notification that [insert child's name] formally resident in the London Borough of Islington, moved to [insert borough] on [insert date]. As far as I am aware, [insert child's name] is neither on the roll of a school/PRU nor receiving full-time education.
I am therefore writing to you to notify you that as [insert child's name] is no longer resident in Islington, I am officially handing over responsibility to [insert borough] for securing [his/her] education provision.
I would appreciate confirmation that you have registered [insert child's name] as missing from education and are taking steps to secure [his/her] education provision as a matter of urgency."
"Housing authorities will need to liaise and work collaboratively with the relevant service providers to ensure that appropriate arrangements are put in place and monitored. When households are placed in temporary accommodation, it is recommended that housing authorities offer to liaise with the relevant health, education and social services departments in the areas in which the households are temporarily housed. Liaison will be particularly important in cases where households have to be accommodated in the district of another housing authority."
This amounts to an unambiguous and strongly worded recommendation to the housing department of a sending authority which is contemplating the temporary out of borough transfer of a school-age homeless child, to liaise directly and work collaboratively with the education department of the receiving borough, in order to ensure that appropriate educational arrangements are put in place and monitored.
"[E]'s primary submission, which is advanced against the background of the framework of legal obligations set out above…is that [Islington] can and should properly be held responsible for the fact that [E] was absent from education as a result of the move to Hammersmith and Fulham. Considering the matter from the standpoint of basic causation, and on the assumption for present purposes that there is a breach of [article 2 of the First Protocol] during [the period E was housed in Hammersmith and Fulham], it is evident that [Islington] and not Hammersmith and Fulham, has principal causative responsibility for [E's] absence from school during this period. This arose from its decision to transfer the family to another borough without any meaningful liaison with Hammersmith and Fulham as to the continuation of [E's] education, or any "follow up" to ensure that [E] was receiving full-time education."
Discrimination
Just satisfaction
(1) As to the Court's general approach, paragraph 2 of the Practice Direction provides that the Court will only award such satisfaction as is considered to be "just' in the circumstances. Consequently, "regard will be had to the particular features of each case". The Court may decide that for some heads of alleged prejudice the finding of violation constitutes in itself sufficient just satisfaction, without there being any call to afford financial compensation. It may also find "reasons of equity" to award less than the value of the actual damage sustained, or the costs and expenses actually incurred, or even not to make any award at all. This may be the case, for example, "if the situation complained of, the amount of damage or the level of the costs is due to the applicant's own fault". In setting the amount of an award, the court may also consider "the respective positions of the applicant as the party injured by a violation and the Contracting Party as responsible for the public interest". Finally, the Court will normally take into account local economic circumstances.(2) As to the relevance of domestic levels of compensation, paragraph 3 provides as follows: "When it makes an award under Article 41, the Court may decide to take guidance from domestic standards. It is, however, never bound by them." When this guidance is read in conjunction with section 8(4) of the 1998 Act, an interesting (and almost circular) situation arises. Section 8(4) mandates the domestic court to look for guidance in the Strasbourg approach to fixing the level of damages, rather than fixing them purely by reference to the amount that would ordinarily be awarded if the loss fell to be compensated in civil proceedings in the domestic courts. This was no doubt because Strasbourg awards of compensation are generally thought to be less generous to the successful applicant than the comparable domestic scales. However, when the guidance in paragraph 3 of the Practice Direction is taken fully into account, it reflects back to domestic levels of compensation as a potentially relevant (albeit not decisive) source of guidance. The upshot is that compliance with section 8(4) entitles (but does not oblige) a domestic court to consider and take into account the amount that would be awarded if the same harm fell to be compensated under domestic law principles of compensation. The dialectic between these two sets of instructions is, in my view best resolved by recourse to proportionality principles. The domestic court should first fix the level of damages it judges to be just in the circumstances, taking account of awards made in similar cases in Strasbourg (if there are any). It should then calculate the figure that would be awarded if the same loss were to be compensable in the domestic courts. Finally, it should strive to achieve a reasonable relationship of proportionality between the two. This approach is particularly apposite in light of the Strasbourg Court's policy of taking account of local economic circumstances when fixing the level of an award (see paragraph 147(1) above). The levels of damages identified by the Judicial Studies Board, the Criminal Injuries Compensation Board, and by the Parliamentary and Local Government Ombudsmen, can all provide guidance in cases where the consequences of a violation of a Convention right are similar to those being considered in the comparator selected: Anufrijeva v Southwark London Borough Council [2004] QC 1124, at paragraph 74. However, in the event that there is an irreconcilable disparity, the Strasbourg approach must prevail: R v Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14, paragraphs 18 and 19 per Lord Bingham.
(3) The correct analytical approach to the quantification of both pecuniary and non-pecuniary damages under Article 41 of the Convention is set out in paragraphs 7 to 9 of the Practice Direction, which establishes the following key principles: First, a clear causal link must be established between the damage claimed and the violation that has been established. Compensation may only be awarded in respect of damage that is the direct result of a violation found. Where causation is multi-factorial, therefore, a reasonable assessment of the relative loss directly attributable to the breach will be called for. Secondly, the purpose of an award of compensation under Article 41 is to compensate the applicant for the actual harmful consequences of a violation (that is, to put the applicant, as far as possible, into the situation they would have been in if the state had fully complied with its Convention obligations). Thirdly, as a corollary of the second principle, an award of compensation under Article 41 is not intended to punish the Contracting Party, and there is therefore no scope for any element equivalent to exemplary damages.
(4) As to the assessment of pecuniary damages (analogous to an award of special damages in domestic law), paragraphs 10 to 12 of the Practice Direction explain that any such award is intended to ensure that "the applicant should be placed, as far as possible, in the position in which he or she would have been had the violation found not taken place, in other words, restituto in integrum". This may include not only past quantifiable economic losses that are directly referable to the violation, but also anticipated future expenses, such as prospective costs of remedial services that may be necessary to provide full reparation for the breach. In the present case, depending on the evidence, this could include the costs of future remedial tuition or psychological support for E. The Strasbourg Court will expect the applicant to prove by evidence the extent and value of the damage. If satisfied that the value as quantified by the applicant is justified, "the Court's award will reflect the full calculated amount of the damage". However, if the actual pecuniary damage cannot be precisely calculated, the Court will make "an estimate based on the facts at its disposal".
(5) Turning finally to the assessment of non-pecuniary loss, paragraphs 13 to 15 of the Practice Direction give the following guidance: An award of compensation for non-pecuniary loss (analogous to an award of general damages in domestic law) "is intended to provide financial compensation for non-material harm, for example mental or physical suffering". The Practice Direction recognises that "it is in the nature of non-pecuniary damage that it does not lend itself to precise calculation". If the existence of such damage can be established and calls for a monetary award in compensation, then the Court "will make an assessment on an equitable basis, having regard to the standards which emerge from its case-law". From a procedural point of view, an applicant who claims non-pecuniary damages should specify a sum which, in their view, would be equitable.
i) In written submissions filed after this judgment was circulated in draft, Mr Rutledge QC argued that the court should take into account the likely costs of adjourning the assessment of damages to a Master. A Master would of course need time to familiarise herself or himself with a new matter involving relatively complex factual and legal issues, and hear submissions on the underlying facts from the parties. Mr. Rutledge QC says that I should balance these (admittedly somewhat speculative) costs against the likely level of damages recoverable, so as to ensure that the principle of costs proportionality is maintained. He suggests that damages for non-pecuniary loss are unlikely to exceed £4,000 or £5,000 (although, in the absence of evidence, he does not, of course, attempt to put any figure on pecuniary loss). I express no view on the figures advanced by Mr. Rutledge QC, but I do accept that the level of recoverable damages is likely be relatively modest when compared with many compensation claims heard in the High Court. I also readily accept the submission that the court should adopt the course which is most likely to keep costs to a minimum: Anufrijeva v Southwark London Borough Council [2004] QC 1124 (see further the discussion at paragraphs 259 to 265 below). Since I am already fully familiar with the facts, I can see force in the view that it may be more economical if I were to decide the question of just satisfaction myself. This could be done quickly, and by reference only to any additional evidence over and above that which I have already considered in detail.ii) Mr. Wise QC invites me to adopt that course. He submits that this would be a more proportionate approach, given that I am already fully appraised of all the factual and legal issues. However, he suggests that, in the first instance, the parties should be given a short period to seek to negotiate a settlement, and thereby to avoid the costs of a judicial determination altogether. He invites me to order a stay of the proceedings for one month from the date of the court's sealed order, to provide the parties an opportunity to explore the question of settlement. If the parties are able to reach agreement within a month, he suggests that E's representatives would then notify the court and make arrangements for the proposed settlement to be approved pursuant to CPR rule 21.10(1). If the parties are not able to agree, then they would apply to the court by letter to lift the stay and obtain further directions for the determination of quantum.
I agree that the parties should be afforded a reasonable opportunity to negotiate a settlement. As Mr. Wise QC points out, there must be at least a reasonable possibility that this may save the costs of a judicial determination altogether. However, if it is to be approved by the court, any settlement must be fully informed and evidence-based. One month does not appear to me to be sufficient time to enable the parties to obtain and exchange any necessary expert evidence, and to have a reasonable opportunity to negotiate. I therefore propose to order a stay of proceedings for two months from the date of the sealed order. I do not agree, however, that it is necessary to have a further directions hearing (or any other interim procedural hearings) if a settlement cannot be reached within two months. I therefore propose to direct that, at the expiry of the two month period, the parties must be ready (with all necessary evidence filed and served) to proceed directly to a short hearing on the assessment of quantum at the first open vacancy in the court's list. I have come to the conclusion that the right (and most proportionate) course is for me to reserve the assessment of quantum at this hearing to myself. Given my familiarity with the issues, the time estimate for the hearing will be one hour. The parties written submissions on quantum will be confined to ten pages, and permission will be required for either party to make reference to more than three authorities. I make it clear that, in light of the stay that I am ordering, I do not expect to be faced with applications for further time to prepare the matter for that hearing.
Concluding remarks
Ground 2: The care needs (and related) assessments
The assessment of C's care needs
"10. [C]'s principal needs arise from the fact that she has a hearing impairment. In Sierra Leone, she learned American Sign Language ('ASL') which is slightly different from British Sign Language ('BSL'), so it will take her some time to complete the transition from ASL to BSL. She came to the UK from Sierra Leone in 2006.
11. [C] can say a few simple words and she communicates with her three children by means of contact, gestures and sounds. She uses sign language with [E]. Her children can understand her sounds in a way that an outsider could not.
12. [C] makes good and frequent use of her smart phone which she uses to send and receive text messages, often, I believe, with people in the deaf community.
13. [C] does receive help in four ways. Each of these four forms of help comes from an agency or service that is independent of Islington and which I have assumed for the purpose of my Care Act assessment will continue to provide her with necessary services. Clearly, if such a service ceased to be available then I would reconsider whether [C]'s assessment should be updated.
14. Deafhope, which is a nationally funded service, has workers who often see [C], particularly Sarah Eltar, who originally put [C] in touch with me. These workers are themselves deaf and are able to sign with [C] and hence to translate documents for her and assist her in other ways. For example, Ms. Eltar has supported [C] to register with a GP and, as her outreach worker, she provides her with emotional support and had attended some court hearings [in connection with C's matrimonial litigation].
15. Deafhope has a family support worker, Moona Mohammed, who has been assisting [C] with some low level parenting issues around boundaries that she has had with [E]. Ms. Mohammed is also deaf and is able to sign with [C]. This service was prompted by a request in July from my colleague in Children Services, Lucy Woolliscoft-Faulkner.
16. [C] is in touch with the Deaf Welfare Rights Advice Service ('DWRA'), an Islington funded service that is based in 222 Upper Street. This service can support [C] with a wide range of issues including:
Booking a BSL interpreter, for NHS, GP, council and other appointments;
Housing repairs and other housing queries;
Form filling and letter translation;
Help and support with HMRC (child tax credit/working tax credit);
Debt and access to work advice;
Referral to other services that support deaf people.
17. [C] often has times when she does not have to care for her children. [E], aged 8, is at school, and since July [F], aged 3, has been at nursery. Since September she has been attending nursery for 30 hours per week and [J], aged 1, has been attending the same nursery for 15 hours per week (9:45 to 12:45 during weekdays)."
"The impact of [C]'s needs on her well-being was considered throughout my assessment, as required by section 1(2) of the Act. The provision of specialist sensory equipment, information on how to access BSL Interpreters, [and] access to the DWRA service, are measures that will minimise the impact of [C]'s needs on her well-being. [C] also receives additional support from Deafhope and [has] been receiving support from children services and the housing department."
"[C]'s sensory impairment has a major impact on her, as without the provision of BSL interpreters, specialist sensory equipment and advice and information on how to access deaf services, she will be at significant risk of social isolation and limited independence. However, these services are available and [C] has been accessing them without difficulty."
"[C] told me that she feels anxious and emotional daily and this causes her to be stressed and upset. However, she has not presented to me as being either sad or alone. Moreover, she related her anxiety and emotions to (i) the fact that her family was in Africa, (ii) [the fact that] she needed help to look after her children, and (iii) [the fact that] she did not know where to get help. These issues have, as I always suspected they would, waned with the passage of time as she has settled in and been able to access services. In my opinion, many single parents with three young children who had recently moved to a new home would often feel low/anxious."
"While the document states, under 'Work, Education, Training and Volunteering' that [C] 'would like to pursue a further education course once her family situation becomes stable', there is no assessment of what exactly she wishes to achieve, and how care and support might contribute to that outcome beyond a bare statement that she will receive 'information and advice'."
"During my assessment, [C] did not provide any information regarding what she aims to achieve in pursuing further education. When asked, she emphasised that her priority at that moment was her housing situation and education for her children. She states that she will consider that once her family situation is settled. [C] is aware that she will receive advice and information as well as support from the DWRA service, regarding further education and other opportunities for deaf people."
"I discussed [C]'s use of the internet and her ability to do internet shopping and she confirmed that she was in the process of having telephone and internet access made available at her home. In my email of 26 July I recorded that '[C] has internet connection now at home and she uses a[n] electronic tablet."
Again, Mr. Wise QC argues that it is "difficult to see how this can be correct" in view of C's literacy difficulties. For the reasons I have given in relation to the previous complaint, however, I do not consider that this suggested conflict of fact is a matter for this court to resolve in judicial review proceedings, particularly in the absence of oral evidence and cross-examination, something that neither party requested.
"My assessment of [C] is that she is able to be independent in maintaining her personal relationships and engage in social activities. [C] is able to contact family and friends, as she uses text, as well as video messages on her smart phone to do so. She is also in receipt of information regarding Deaf Clubs in and around the borough of Islington and has access to the DWRA service, who can provide her with additional support if required. At the time of my assessment, [C] chose not to, as she said she was focussed on her housing and schooling issues for her family. It was because of this choice, rather than any need for services, that I recorded that she was 'not able to pursue any activities at the moment, due to her circumstances'."
(a) "Although I noted that [C] was 'unable to maintain her relationships with [her friends]' I concluded that this was her choice because 'settling with her family is the main priority'. In particular, she was keen to secure permanent accommodation for her family. Hence, this was not an issue that gave rise to a need in the Care Act context.
(b) Similarly, [C] was 'not able to pursue at the moment' making use of facilities or services in the local community. In fact, as noted above [C] is making use of some facilities and services. However, she is not making full use of them because she is pre-occupied with settling with her family and because she made it clear that her housing situation was her priority. Again, this did not give rise to a need. [C] has an information booklet that lists all the services within and out of borough to meet the needs of deaf people. The DWRA worker has also met [C] to discuss these services."
(c) I tried to explore with [C] what type of training she would like to pursue but all she would tell me was that she 'wants to attend college'. I explained that if she wanted to pursue this in the future she should contact the DWRA service which would work with her to explore training and employment opportunities."
(d) Although I said that [C] could not make use of her home safely this was in the context of the needs which had been addressed (ie a flashing doorbell chime and receivers had been installed and the Fire Brigade had also installed specialist sensory equipment)."
The court's standard of scrutiny
"Need is a relative concept which trained and experienced social workers are much better equipped to assess than are lawyers and courts, provided that they act rationally."
"I [do not] accept that it is for the court, [rather than] the local authority, to decide whether the applicant is in need of care and attention which is not otherwise available to him. It is for the authority to make that decision, subject to the possibility of challenge by way of judicial review on any of the usual grounds."
"In construing assessments and care plans reviews, it should not be overlooked that these are documents that are usually drafted by social workers. They are not drafted by lawyers, nor should they be. They should be construed in a practical way against the factual background in which they are written and with the aim of seeking to discover the substance of their true meaning."
"My Lords, I am troubled at the prolific use of judicial review for purpose of challenging the performance by local authorities of their functions under the Act of 1977. Parliament intended the local authority to be the judge of the fact. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers, or otherwise acted perversely, I think great restraint should be exercised in giving leave to proceed by judicial review. The plight of the homeless is a desperate case, and the plight of the applicants in the present case commands the deepest sympathy. But it is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under Act save in the exceptional case. The ground upon which the courts will review the exercise of an administrative discretion is abuse of power (e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense – unreasonableness verging on an absurdity: see the speech of Lord Scarman in Reg v Secretary of State for the Environment, ex parte Nottinghamshire County Council [1986] 1 AC 240, 247-248. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum, ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
In Ireneschild Hallet L.J. observed that although those remarks were "directed to a different statutory function in a different era" they were nonetheless "as pertinent today as they were in the 1980's" (at paragraph 44). I would add that, in my view, they also provide a useful guide to the approach which the court should take in the present case.
"[A] benevolent approach should be adopted [by the court] to the interpretation of review decisions. The court should not take too technical a view of the language used, or search for inconsistencies, or adopt a nit-picking approach, when confronted with an appeal against a review decision. That is not to say that the court should approve incomprehensible or misjudged reasoning, but it should be realistic and practical in its approach to the interpretation of review decisions."
Lord Neuberger went on, at paragraph 45, to give some examples of the kinds of objection that would be unlikely to vitiate the ultimate conclusions reached by a local authority:
"Further, as the present case shows, a decision can often survive despite the existence of an error in the reasoning advanced to support it. For example, sometimes the error is irrelevant to the outcome; sometimes it is too trivial (objectively, or in the eyes of the decision-maker) to affect the outcome; sometimes it is obvious from the rest of the reasoning, read as a whole, that the decision would have been the same, notwithstanding the error; sometimes, there is more than one reason for the conclusion, and the error only undermines one of the reasons; sometimes the decision is the only one which could rationally have been reached. In all such cases the error should not (save, perhaps in wholly exceptional circumstances) justify the decision being quashed."
I accept Mr. Rutledge's submission that this guidance is equally apt to apply to a care needs assessment under the 2014 Act.
Conclusions on C's care needs assessment
The child and family assessments
The assessment of E's needs
(a) First, Mr. Wise QC contends that it was not open to Ms. Woolliscroft-Faulkner to reach the conclusion she did on the facts as she found them. Having concluded that the burden placed on E to translate for C was "highly inappropriate" it was rationally inconsistent for her to conclude that E was not a "child in need" within the meaning of section 17(10) of the 1989 Act.(b) Secondly, he submits that having initially concluded that it was necessary for a further assessment to be conducted by a specialist family support service, Ms. Woolliscroft-Faulkner was obliged to await that assessment in order to determine whether the statutory threshold in section 17(10) was crossed. The further assessment may, for example, have revealed that, without the provision of local authority services, the nature of E's relationship with C would substantially impair E's opportunities to maintain a reasonable standard of development. If that was a possible outcome then, says Mr. Wise QC, it was unlawful for Ms. Woolliscroft-Faulkner to reach a concluded care needs assessment for E, without awaiting the results of the further assessment that she herself initially considered to be necessary. For these reasons, the approach taken by Ms. Woolliscroft-Faulkner amounted to a failure to take reasonable steps to equate herself with the information she needed to answer the statutory question, and was therefore irrational in the sense identified by Lord Diplock in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 104.
(c) Thirdly, Mr. Wise QC draws my attention to paragraphs 22 and 35 of the guidance set out in Working Together to Safeguard Children. Taken together, these two paragraphs emphasise the need for an integrated approach and for the effective sharing of information between professionals and local authorities when conducting a care needs assessment for a child. Once Ms. Woolliscroft-Faulkner had provisionally concluded that it was necessary for E to be further assessed by a specialist family support unit, she ought to have recognised that E's case cried out for a collaborative approach between the local authority and the professionals, before the statutory questions could be answered.
(d) Finally, Mr. Wise submits that for the same reason, the young carers assessment (which formed part of the care needs assessment for E) failed to comply with the detailed requirements of the Young Carers (Needs Assessment) Regulations 2015, particularly those set out in regulation 4(2). This provides, amongst other things, that the local authority must determine "whether the care which the young carer provides (or intends to provide) impacts on the young carer's well-being, education or development" (regulation 4(2)(c)); and "whether any of the tasks which the young carer is performing (or intends to perform) when providing care are excessive or inappropriate for the young carer to perform having regard to all the circumstances" (regulation 4(2)(d)). Mr. Wise QC argues that, having concluded that one of the central tasks E was performing was "highly inappropriate" and arguably "beyond what is appropriate for her age", Ms. Woolliscroft-Faulkner was bound properly to inform herself about the impact this situation was having on E's well-being and development. This she could not do without awaiting the outcome of the assessment.
"The definition of a 'young carer' in subsection 3 of the Act is potentially very broad but I have interpreted it as requiring that the child provides a degree of care arising from the mother's care needs. The conclusion I reached in my assessment was that [E] helps her mother in a way that goes 'beyond what is appropriate for her age' but I did not consider this to be care, within the Act because firstly, neither mother nor child considers it to be care and secondly, its need arises not primarily from her mother's deafness, but from her parenting style. In other words the additional responsibilities that [E] adopts are not caring responsibilities but responsibilities that arise in a parent-child context, shaped by [C]'s parenting style."
"[S]ocial workers should always keep an open mind about changed circumstances. Hence, when I assessed that [C] and her children would benefit from family support work, I discussed this with [C] only to find out that a specialist family support worker (Moona Mohammed, a family support worker with Deafhope) was already due to be allocated to the family. [C] has indicated that she is very happy with the service provided by Deafhope and prefers working with deaf workers to hearing workers, therefore an additional referral service was not necessary. I cannot agree that this means that my assessment was unlawful, it means merely that I identified a need that could be fulfilled without the provision of local authority services, which was discussed with [C] and which is significantly less stigmatising for parents and families, who are often very aware of the assumptions and implications made when children's social workers are involved."
The assessment of F and J's needs
"The broad response to this criticism is that (a) because their mother cannot speak to them they are likely to have an element of delayed speech, but (b) once they start at nursery school this problem is likely to be overcome. Indeed, this already appears to be the case for [F], who I and other professionals have observed to have made huge developments in this area over the last few months. Furthermore, the provision of speech and language therapy is a medical service provided by the NHS, and although Islington can have a role in signposting, referrals need to be made by health professionals. A referral has been made for [F] by the health visiting team, and it is expected that the same will take place for [J] once he is older and his speech delay more discernible."
Relief
Costs
i) The costs incurred in relation to the issues I have already decided in paragraphs 146 to 154 above (concerning the necessity for an award of damages, and fixing the procedure for determining quantum). These costs must represent a very small fraction of the overall costs of this litigation and were, in any event, necessarily and properly incurred. The issues had to be decided at some point and it was both economical and convenient for them to be decided at the same time as the substantive issue arising under section 6 of the Human Rights Act. More importantly, Mr. Rutledge QC voiced no objection to this approach until now. Indeed, he actively engaged with this issue, seeking to persuade me that a declaration of breach was sufficient just satisfaction on the facts.
ii) The prospective costs of preparing for, and attending, a one hour hearing, before me, for the final assessment of damages. The procedure I have set out in paragraph 154 is designed to keep the costs of assessing quantum to an absolute minimum.
i) "The courts should look critically at any attempt to recover damages under the Human Rights Act for maladministration by any procedure other than judicial review in the Administrative Court."
In the present case, E has clearly complied with this requirement.
ii) "A claim for damages alone cannot be brought by judicial review (Part 54.3(2)) but in this case the proceedings should still be brought in the Administrative Court."
This principle is irrelevant to the present case because E claimed declaratory relief as well as damages. She made these claims in judicial review proceedings in the Administrative Court, which was undoubtedly the appropriate forum for the determination of her claim.
iii) "Before giving permission to apply for judicial review, the Administrative Court judge should require the claimant to explain why it would not be more appropriate to use any available internal complaint procedure or proceed by making a claim to the PCA or LGO."
This is an instruction to the permission judge. In the present case, there is nothing to indicate that Jefford J. made this inquiry. However, this is not an omission that can be laid at the door of the claimant. Moreover, when the pre-action protocol letter was sent, E was still out of school, and her education claim was rolled up in one judicial review application with the second ground of challenge (which related to an ongoing detriment to the family that could not be resolved other than by judicial review proceedings).
iv) "If there is a legitimate claim for other relief, permission should, if appropriate be limited to that relief and consideration given to deferring permission for the damages claim, adjourning or staying that claim until use had been made of ADR, whether by reference to a mediator or an ombudsman or otherwise, or by remitting that claim to a district judge or master."
This too is an instruction to the permission judge. Significantly, the Court does not suggest that the substantive human rights claim should be adjourned to another forum. On the contrary, it suggests that the permission judge should allow any arguable substantive claim to proceed to a determination of liability on judicial review (and, if appropriate, declaratory or other relief). However, the Court recommends that the permission judge should consider severing the damages claim at permission stage, and adjourning it to be dealt with (after possible mediation) in a judicial forum where costs can be controlled. This can of course only occur after issues of liability under section 6 of the Act have been judicially determined.
In the present case, there was (to use the language of the Court in Anufrijeva) "a legitimate claim for other relief", namely a declaration that E's Convention right had been violated by Islington. That substantive issue had to be decided before any question of remedy could arise. It was this question that occupied the overwhelming majority of the parties' and the court's time.
Thus, on an entirely faithful application of this guideline, the right course for the permission judge to take would have been to grant permission for the substantive challenge under the Human Rights Act to proceed (as she did), and then to consider at the same time whether to adjourn the question of damages (a) to enable the parties to seek a mediated settlement and (b) to ensure that it could be resolved by the least costly procedure. That is, in substance, if not in form, the outcome that has been arrived at here (see paragraph 154 above).
In this case I was invited by both parties to determine the question of whether damages were necessary to achieve just satisfaction (as required by section 8(3)), Mr. Rutledge QC enthusiastically engaged in the argument. In light of my conclusion that damages are indeed necessary to afford just satisfaction to E, I have decided to stay the proceedings to enable settlement negotiations to take place. If these negotiations fail to produce a compromise, there will then be a short hearing that will be confined to the consideration of any new evidence and short written and oral submissions. I have reserved the final determination of quantum to myself in order to minimise the additional costs that are likely to be incurred. I consider that this substantially achieves the procedural objectives identified by the Court of Appeal in its fourth guideline in Anufrijeva.
v) "It is hoped that with the assistance of this judgment, in future claims that have to be determined by the courts can be determined by the appropriate level of judge in a summary manner by the judge reading the relevant evidence. The citing of more than three authorities should be justified and the hearing should be limited to half a day except in exceptional circumstances."
This guideline will be followed to the letter in the procedure I have outlined for the assessment of damages (at paragraph 154 above). The matter will be dealt with by the appropriate level of judge (in this particular case, a Deputy High Court Judge). Given that I am already familiar with the facts, I will be in a position to deal with the assessment of quantum summarily, as recommended in Anufrijeva, and to confine my pre-reading to any new evidence filed by the parties and their written submissions on damages (which I shall limit to ten pages). The parties will be expected to comply with my order to justify reliance on more than three quantum authorities, and the hearing will last considerably less than the half day limit laid down in Anufrijeva. Indeed, I have given it a marking of one hour. I have made every effort to achieve the objective of costs proportionality identified in this guidance through the adoption of the procedure set out at paragraph 154 above.
vi) "There are no doubt other ways in which the proportionate resolution of this type of claim for damages can be achieved. We encourage their use and do not intend to be prescriptive. What we want to avoid is any repetition of what has happened in the court below in relation to each of these appeals and before us, when we have been deluged with extensive written and oral arguments and citation from numerous lever arch files crammed to overflowing with authorities."
The procedure I have outlined in paragraph 154 is the leanest process I can devise for assessing damages in this case, and will bear no resemblance whatever to the manner in which the litigation was conducted in Anufrijeva.
"[I]t is important to consider the approach actually advocated by the Court of Appeal in [Anufrijeva]. At no stage did the Court of Appeal suggest that the courts should exercise their costs discretion in order to deprive successful parties of their entitlement (in principle) to all or part of their legal costs on the grounds of disproportionality to any damages award. Rather, what the Court of Appeal recommended was a form of active case management to ensure that costs are kept proportionate…That is precisely the approach that E has put forward in her written submissions of 27 June, proactively suggesting alternative dispute resolution to avoid the generation of unnecessary further costs in connection with the damages aspect of the claim. Anufrijeva therefore provides no support whatsoever for the approach to costs that [Islington] now advocates."
I agree with this analysis, and reject Mr. Rutledge QC's central submission that the claimant should be denied her costs altogether, or that they should be partially disallowed, by reference to a comparison between the quantum of any likely damages award, on the one hand, and the costs reasonably and necessarily incurred in pursuing an entirely legitimate claim for damages, on the other.
"If the successful claimant has lost out on a number of issues it may be inappropriate to make separate orders for costs in respect of issues upon which he has failed, unless the points were unreasonably taken. It is a fortunate litigant who wins on every point."
