S, R (on the application of) v Leicester City Council [2004] EWHC 533 (Admin)

Case No CO/5898/2002[2004] EWHC 533 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 29 th March 2004
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE LEVESON
Between
THE QUEENClaimanton the application of S by her motherClaimantand next friend SANDRA BRANCHClaimantLEICESTER CITY COUNCILDefendant
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr David Wolfe (instructed by Public Law Solicitors) for ClaimantMr Philip Coppel (instructed by Legal Services, Leicester City Council) for Defendant
JudgmentMr Justice Leveson :
[1]S is 35 years of age and suffers from autism. She grew up in Leicester but in June 1995 was placed for further education in Newcastle on Tyne. Initially, she lived in a hall of residence attached to the College but she later moved to 14 Lorne Terrace, Ashbrooke, Sunderland (“Lorne Terrace”) which is operated by the managers of the College. Although for some years her responsible local authority, the present Defendant (to whom I shall refer as “the Council”), has been anxious to return her to Leicestershire, she is happy in Sunderland and her mother is adamant that it remains in her best interests that she stay where she is.[2]This action started as an application for judicial review of a Council decision taken as long ago as 27 September 2002 to move S to a new placement in Leicester. During the course of the oral application for permission, McCombe J was concerned that another mechanism for resolving this dispute should be tried. In the event, the complaints procedure operated by the Council was triggered and its effect has been a further decision dated 20 November 2003 albeit to like effect, namely that S should return to Leicester. The challenge now mounted is to that decision.

The Facts

[3]It is necessary to go into the history in a little detail; for that purpose, I gratefully acknowledge the assistance that I have received from the analysis provided by Mr Coppel for the Council.[4]Prior to the age of 16, S attended a mainstream school where she was bullied and experienced verbal and physical abuse. It was only thereafter, following a reference to a school psychologist, that she was diagnosed as having autism, along with chronic anxiety. She then lived in Leicester with her mother who was (and remains) very concerned about her coping abilities.[5]On 21 February 1994, S’s mother wrote to Josephine Burke, the social worker within the Leicestershire education authority who, at that time, had the closest involvement with S, seeking support for her proposal to further S’s education:
“I have always maintained the view that it is right and proper for young handicapped people like [S] to leave home in a structured way before they were forced to – i.e. at the death of parents or when parents become too infirm to cope. Indeed, this is a natural progression for all young people whether handicapped or not. With this in mind, I have been looking for a suitable place for [S] where I felt she would have a home for life but where she could also grow and develop to her full potential.... I found such a place - Ashleigh College in Newcastle-upon-Tyne - where students live and receive training and then move on to homes for four in the community, but still with a carer in residence...”
[6]S was beyond the age for educational grants (the limit being 25 years of age). However, S’s mother made a special plea to the Further Education Funding Council for exceptional special funding for her daughter to undertake a two-year educational placement at Ashleigh College. That college is run by the European Service for People with Autism (“ESPA”). The Funding Council agreed to the request provided that the Leicestershire County Council (then responsible for S’s social services) agreed to fund the accommodation element of the package.[7]To that end, on 16 May 1995, S’s mother lodged an application on behalf her daughter for the additional financial support in order to be able to meet the amounts being sought by ESPA. She identified the accommodation support as being required from 29 May 1995 to 1997, then being the expected duration of the course that S was attending. In the section of the form headed “Other Information”, she wrote:
“[S] is going to college in Newcastle upon Tyne. The initial placement is for 2 years but an extension to the course could be applied for at end of that period. It is hoped that [S] will progress towards semi-independent living closely linked to the college.”
Although the County Council had not assessed the need for such an educational placement, it nevertheless agreed to fund the accommodation element of the package.[8]Having started her course in June 1995, living in a hall of residence, in December 1996 S moved to Lorne Terrace, a residential care home registered under the Registered Homes (Amendment) Act 1991. This is off-campus and exists for a small number of students at Ashleigh College. It is a terraced house accommodating four residents falling within the autism spectrum or with Asperger’s Syndrome. It is staffed by two carers during waking hours (8.00am – 10.00pm) and one carer sleeps at the premises. The house has four large bedrooms, one office/sleep-in room, 2 lounges, a dining room, a kitchen, a bathroom/shower and two toilets.[9]In that same month, S’s mother sought fresh financial assistance for her daughter’s course at Ashleigh College so as to enable her to live at Lorne Terrace rather than on campus. Again, although the County Council had still not assessed the need for such an educational placement, it nevertheless agreed to fund the revised accommodation element so as to support access to educational opportunities. The Council have subsequently made it clear that, in its view, “...Lorne Terrace has....never been assessed as a suitable non-educational placement for [S]”.[10]Although the educational placement was originally for two years, after representations by S’s mother to the Funding Council, funding was extended for a further year. The Council also agreed to fund the accommodation element for the same period.[11]So it was that the extended placement at Ashleigh College concluded in May 1998 and funding from the Funding Council (which was supplemented by the Council) ceased. At that time, S (and her mother) made it clear that S would like to stay longer at Lorne Terrace and, for a period, ESPA agreed to extend the S’s placement on a short-term basis without seeking additional amounts from the Council. At the same time, during 1998, the Council maintained that now that the educational placement had concluded, it was necessary to meet S’s needs by providing residential accommodation within Leicestershire.[12]S’s mother complained to the County Council about this proposal and, on 18 February 1999, a comprehensive report was concluded. This upheld five complaints which were in these terms: 1. That a decision was taken by Social Services to move [S] from her current home without a proper reassessment of her needs. 2. That the decision to move [S] from her home was based on cost of the current accommodation. 3. That proper account was not taken of the traumatic effect on [S] as a person with autism of a move from her present accommodation. 4. That the reassessment of [S’s] needs did not take into account the views of her consultant, or the particular needs and experiences of [S] as a person with autism. 5. That Social Services are no longer working with [S’s mother] in a structured way to find appropriate accommodation for [S]. Another complaint (about the attitude of Social Services to S’s mother said to lead them to make suggestions for accommodation for S not appropriate for her needs) was not upheld.[13]Social Services determined to resolve to do better both in relation to assessment and monitoring. To that end, between 30 April 1999 and 2 June 1999, a fresh and comprehensive assessment was undertaken of S’s needs. It was prepared by a Social Worker, Jane Forte, and involved S’s mother, the Unit Manager, Senior Care Officer and two Care Officers from Lorne Terrace, and three lecturers and a Chartered Psychologist from the College that she had attended. It is entitled “Comprehensive Assessment and Outline Care Plan” (“the 1999 Care Plan”) and is an important analysis of the position which had been reached.[14]Thus, the views of the S’s mother are recorded. She reported that S saw Lorne Terrace as her home and her regular trips to Leicester as visits with her mother. She was “keen for [S] to maximise her opportunities and acknowledge that a move to more community based activities and some independent travel may now be appropriate...”. The accommodation and environment in and around Lorne Terrace was described as was the aim of the home which was to “develop an individual’s skills with a view to move to more independent living in the future”. Besides outlining her domestic tasks and personal care, her recreational and educational needs were explained in these terms:
“At the age of 30, continued full-time classroom learning is not appropriate for [S]. She needs a wider, more practically based timetable consolidating her academic learning into life skills for domestic, leisure and voluntary work. She works best in groups no larger than five to one … She is unlikely to achieve independent living, but can maintain and build on her skill base with support within a residential setting.”
[15]Risk Factors identified for S included personal vulnerability to inappropriate approaches, emotional and sexual exploitation, financial exploitation which the document records could happen anywhere and involve students or members of the general public. Her need to please and difficulty in saying ‘no’ exacerbates her vulnerability.[16]The 1999 Care Plan reached the following Assessment Conclusion: “[S] has medium dependency needs. Her skill needs are good, but the nature of her disability is such that she is unable to use her skills without the constant prompting and motivating support of staff.” [S] is a vulnerable person … [S] needs:• Residential accommodation in a small group with 24 hour staff support (sleeping in is adequate).• Increased opportunities for use of domestic skills.• A range of community based activities to build on current practical skills and leisure interests. These need to be within small groups and initial staff support will be required to assist [S] to integrate and advise activity leaders on [S’s] specific needs.• Staff support to access community resources on an individual basis• Risk assessment for independent travel.• Consistent support to provide the reassurance and guidance to maintain good mental health.• To maintain contact with family and friends around the country.” [S] is a vulnerable person …

[S] needs:

[17]It is common ground (and the view of the Council) that in the range of assessed needs of persons for whom the Council has responsibility, this summary of assessed need is in the lower-mid range of the spectrum. The description given in the above-quoted Assessment Conclusion describes services of a level that would normally be provided by a residential care home.[18]On 14 July 1999, doubtless while the implications of this assessment were still being considered, ESPA wrote to the Council seeking payment in full for S’s accommodation at Lorne Terrace; they gave notice to terminate the placement if such funding was not forthcoming. S’s mother asked the Council to meet its commitment (which she perceived as being to leave S in Sunderland). The Council, on the other hand, while seeking to reassure her (and agreeing to meet the cost of the placement in the meanwhile) made it clear that they did not believe that the specialist residential placement was needed and that there had never been any expectation that it would be funded entirely by the Council when other sources of funding had been exhausted. Not least because of the then absence of appropriate facilities in Leicester, so the position remained and, over the three years which followed, S has continued to live in Sunderland being monitored by the Council. Meanwhile, the Council, advised by Professor Brugha, Professor of Psychiatry at the University of Leicester with a special interest in adults with autistic spectrum disorder, including Asperger’s Syndrome, considered the other options.[19]A Review in December 2000 records the Council’s wish to move S back to Leicester and, by the summer of 2002, plans had been developed to that end. S’s mother wrote (on 27 August) that it was “simply too late to move someone who is no longer a girl but a young woman of 33 with an established home she loves and which fully meets her complex needs”. Nevertheless, on 27September 2002, the Council’s Head of Services (Learning Disabilities) wrote that in the light of legal, medical and social work opinion, “the long term health, security and happiness of [S] are the considerations driving the current recommendations for [S] to return to Leicester”. The letter went to analyse the considerations and observe that the move (to Sycamore Court in Leicester) would bring extra benefits and that in balancing these benefits:
“against the present placement [i.e. Lorne Terrace] in a privately owned institution where the local specialist NHS and social care services assume no responsibility for [S], and in a locality where there are no family ties, it is clear that long term stability and life long planning will be best met in Leicester.”
[20]On 21 December 2002, S challenged this decision by commencing these proceedings. On 27 February 2003, McCombe J granted her permission to apply for judicial review, but stayed the substantive hearing for 14 days “to consider whether there is a complaints procedure or statutory review”. In the event, the parties agreed that an appropriate forum was the Council’s formal social services complaints procedure. This was invoked. S’s mother has made clear:
“The intended purpose of the parties in utilising the complaints procedure was to invoke a procedure that would be able to undertake a primary fact finding exercise as to the questions of suitability.”
[21]I pass to consider the complaint’s procedure; this has three stages. The parties agreed that the complaints procedure should start at stage II (informal resolution not being practicable) and that an independent investigator be asked to prepare a report and make recommendations. The complaint itself was articulated in a letter from the S’s solicitors dated 17 April 2003 essentially in terms that: 1. Lorne Terrace was suitable accommodation; 2. Sycamore Court in Leicester was not suitable accommodation; and 3. the Council did not consider Lorne Terrace was unsuitable until it was drawn to their attention that the Choice of Accommodation directions applied.[22]The Defendant appointed Mr Clive Twigg as an independent investigator. Having comprehensively discussed the matter with solicitors for both parties, with the relevant (including expert) personnel from Social Services and the Housing Association in Leicester, with the Manager of Lorne Terrace and Professor Brugha, he produced a report, dated 30 May 2003, covering 39 pages that upheld none of the complaints. In relation to the suitability of Lorne Terrace (which is the relevant feature for the purposes of this action), he said:
“I have to take the view here that Lorne Terrace has never been suitable in the sense that it could never be adequately monitored by SSD… Lorne Terrace was accepted as suitable at the time of the 1999 Assessment. Monitoring is not mentioned. It is still able to meet the needs in that Assessment. Dr Brugha has said that Lorne Terrace is ‘fine at present, a good place’… In terms of [S’s] care and expected development … I must conclude that Lorne Terrace is generally suitable. It is not suitable in terms of the provision of monitoring… I also believe that suitability is not a fixed thing. There are many instances when the once suitable becomes unsuitable, or their unsuitability is made evident by something else which is suitable. ”
[23]Mr Twigg goes on to explain the way in which monitoring has taken place and that the Council did wish to comply with best practice; if S were in Leicester, ad hoc visiting could take place and her needs “better recognised and therefore met”. In addition, social contact with her family would be better facilitated. Finally, I ought to add that he had made a point that S did not have access to the full range of LA health services but he did not rely on this feature when setting out his conclusions.[24]S’s mother did not accept the conclusions in Mr Twigg’s report (which the Council said it would implement) and accordingly asked the Council to invoke Stage III of its complaints procedure; the procedure was subsequently limited to the rejection of the first two complaints only. It involved a hearing before a panel of two independent persons who received a lengthy critique of the Report drafted by S’s solicitor. The panel sat on 24 October 2003; it heard from Mr Twigg, S’s solicitor and David Durrant, the Council’s Service Manager (Learning Disabilities). Its findings and recommendations are set out in a letter to S’s mother dated 27 October 2003 in the following terms:
“… the Panel determined that whilst they were not minded to dispute the facts as found by the Independent Investigator they were entitled to draw their own conclusions from those facts…. [Mr Durrant] said that it was impossible to monitor a placement adequately from 200 miles away…. [S] could not access the specialist NHS Services to which she was entitled and currently such services were provided within the fee paid for the placement at Lorne Terrace which was effectively a payment for private health care which the Department was not entitled to provide. Mr Durrant indicated that a major move such as this did not need a full re-assessment as every piece of information about [S] known to the Department but rather a review of the provision of services to her. Whilst the Panel accepted [S’s solicitor’s] assertion that suitability of preferred accommodation was not an open question but related to [S’s] needs as assessed by the Department the Panel felt these included by necessary implication [S’s] need for specialist NHS Services now and in the future and the need to ensure regular monitoring by the Department to ensure that [S’s] needs are being met. The Panel felt that the lack of access to the former and the inability to perform the latter adequately were such as to make Lorne Terrace unsuitable and that [S’s] long term interests required a move back to Leicester notwithstanding your strong opinions and the dedication that you have shown to safeguarding your daughter’s interests over the years.”
[25]By letter dated 20 November, the Council’s Director of Social Services accepted the recommendation of the Panel (adopting precautionary measures suggested by Mr Twigg which permitted Professor Brugha to abandon the move if he felt it was appropriate to do so). S now challenges that decision complaining, in summary, that: 1. if the accommodation preferred by S appears to the authority to be suitable in relation to the her needs as assessed by the authority, the authority is obliged to maintain or make available that accommodation; 2. a decision to change a placement can only lawfully be made following a material change of circumstances as considered through a lawful reassessment of community care needs and the provision to meet those needs and since the last assessment was made in June 1999, there has been no such material change; 3. the Stage III panel had to reach its own conclusion on the factual and other issues involved, unconstrained by the findings made by the stage 2 investigator; in any event, Mr Twigg’s conclusions both as to monitoring and NHS provision are erroneous which errors equally undermine the Stage III panel; 4. the decision is perverse, failed to give effect to the Choice of Accommodation Directions and represents an interference with S’s right to respect for her home under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Council submit that none of these complaints bear analysis and that, in reality, this challenge is simply to the merits of the decision.[26]I do not apologise for the very lengthy recitation of the history of this matter. Although Mr Wolfe (for S) asserts that the history by which S came to be at Lorne Terrace is irrelevant and that the Council’s view of S’s best interests is also irrelevant, it has been suggested that the Council have thought up justifications only when legal difficulties have been identified and in response to them. It is also important that I make clear not only what issues I am deciding but also what I am not deciding so that the true impact of my decision is not misinterpreted. In any event, with that background, I now turn to the law and then an analysis of the issues.

The Legal Framework

[27]Section 47(1) of the National Health Service and Community Care Act 1990 (“the 1990 Act”) imposes a duty on a local authority to carry out an assessment of a person’s needs for community care services (which including services provided pursuant, among other provisions, to section 21 of the National Assistance Act 1948). The subsection provides:
“Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority ... shall carry out an assessment of his needs for those services; and ... having regard to the results of that assessment shall then decide whether his needs call for the provision by them of any such services.”
[28]So far as is relevant, section 21 of the National Assistance Act 1948, provides: “(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing- (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.... (2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided.... (4) Subject to the provisions of section 26 of this Act accommodation provided by a local authority … shall be provided in premises managed by the authority or, … in such premises managed by another local authority as may be agreed between the two authorities and on such terms … as may be so agreed.” (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them....[29]In the main, where accommodation provided by a local authority in the exercise of its functions under section 21 of the National Assistance Act 1948 is broadly suitable to the needs of the person, the accommodation offered by the local authority cannot be impeached on the ground that it is not the accommodation preferred by the recipient of it. That provision, however, must be seen in the light of the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 (“the Directions”).[30]The Directions are at the core of this case and, so far as is relevant, provide: “Local authorities to provide preferred accommodation 2. Where a local authority have assessed a person under section 47 of the National Health Service and Community Care Act 1990(assessment) and have decided that accommodation should be provided pursuant to section 21 of the National Assistance Act 1948(provision of residential accommodation), the local authority shall, subject to paragraph 3 of these Directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice within England and Wales (in these Directions called "preferred accommodation”) if he has indicated that he wishes to be accommodated in preferred accommodation. Conditions for provision of preferred accommodation 3. …the local authority shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if(a) the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them(b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;(c) the preferred accommodation is available;(d) the persons in charge of the preferred accommodation provide it subject to the authority's usual terms and conditions, having regard to the nature of the accommodation, for providing accommodation for such a person under Part III. Conditions for provision of preferred accommodation (a) the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them (b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs; (c) the preferred accommodation is available; (d) the persons in charge of the preferred accommodation provide it subject to the authority's usual terms and conditions, having regard to the nature of the accommodation, for providing accommodation for such a person under Part III.

Conditions for provision of preferred accommodation

[31]Finally, section 7(1) of the Local Authorities Social Services Act 1970 provides that:
“Local Authorities shall, in the exercise of their social service functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State.”
[32]Such guidance includes the guidance attached to a document known as the Laming letter (being a letter from Mr Herbert Laming CBE, Chief Inspector, Social Services Inspectorate, dated 14 December 1992). This includes the guidance:
“13. ... [O]nce the authority has indicated that a service should be provided to meet an individual’s needs and the authority is under a legal obligation to provide it or arrange for its provision then the service must be provided ...”
[33]So far as care plans are concerned, the Laming letter goes on “31. ... The care plans of all users should be subject to regular review. For frail people in the community, frequent reviews and adjustments of their care plans are likely to be needed. Before any changes in services are made for existing users, they should be re-assessed. In those cases where assessments have been undertaken, particularly under section 2(1) of the [1970 Act], authorities must satisfy themselves, before any reduction in service provision takes place, that the user does not have a continuing need for it. So long as there is a continuing need, a service must be provided although, following review, it is possible that an assessed need might be met in a different way. ” Analysis The absence of recent Assessment

Analysis

[34]The only basis on which the Council seek to deny S her preferred accommodation at Lorne Terrace is that it does not appear “to be suitable in relation to her needs as assessed by them”. Thus, in the light of the clear provisions of paragraph 3(a) of the Directions, it cannot be gainsaid that if Lorne Terrace does appear to the authority to be suitable in relation to the her needs as assessed by the authority, it is obliged to maintain or make available that accommodation. Mr Wolfe’s first (and fundamental) submission is to the effect that the last assessment of S’s needs was in 1999 when there was no suggestion that Lorne Terrace was not suitable (or any need which it was suggested could not be met), and that there has been no material change of circumstance since then. Mr Coppel, on the other hand, argues that there has been a change of circumstance because the limited educational purpose for which S went to Sunderland (which was the basis on which it was agreed that such a placement was suitable) has long since passed and that, in any event, there is no need for a “material change of circumstances” still less one that can only be brought about after formal assessment.[35]To such extent as it is suggested that if Lorne Terrace was suitable in 1999 and S’s needs then assessed can still be met there, it cannot be said that Lorne Terrace is now unsuitable, I do not agree. As Mr Twigg said in his report, suitability is not fixed. What may have been suitable both for educational placement and in the years thereafter may not be suitable over a lifetime with uncertainty of tenure and dependence on a few who may move on. Secondly, it is not difficult to postulate circumstances in which the very protected setting of residential accommodation such as is provided in Lorne Terrace may over-cosset residents and does not require them to maximise their potential for living in the community thereby gaining a rather more fulfilled life than would otherwise be the case. In that regard, I further accept that there is a real potential advantage if those responsible for monitoring care have the opportunity to ‘drop in’ and react quickly to events as they occur. Monitoring is, indeed, important but that feature is only one of a number that fall to be considered.[36]The difficulty is that there was been no specific assessment in the 3½ years which has elapsed and no formal enunciation of the extent (if at all) to which the needs set out in June 1999 have changed or are likely to change with the passage of time. In that regard, I do agree that any assessment must be carried out with a degree of formality. Paragraph 31 of the Laming letter (being guidance to which the Council is required to have regard in the exercise of its discretion) visualises that before any changes in services are made for existing users, needs should be re-assessed (which I read as referring to the mechanism prescribed by section 47 of the 1970 Act). That is doubtless to ensure that all those engaged on the process are focussing on the appropriate features: Mr Twigg’s comment (at 3.118) that matters may have been more straightforward if the Council’s case had been made clear in earlier correspondence only goes to underline the need to ensure that all arguments are considered together.[37]Does the absence of a formal re-appraisal of need render this decision flawed from the outset? Without the investigation that took place for the purposes of the complaint, it is difficult to see how it would not have done. That, however, is not the present position and, given that the purpose of the complaint procedure was to deal with the issue of suitability (which inevitably required consideration of need) and that Mr Twigg spoke to everyone who might be involved in such an appraisal, it may seem a pointless exercise to require its repetition simply so that the correct form can be completed. For two principal reasons, however, I have come to the conclusion that the complaint procedure does not save the decision and that the decision communicated by the letter of 20 November 2003 is not in compliance with the Council’s statutory obligations.[38]First, the primary focus of the complaint procedure was the suitability of the premises, rather than S’s needs now and over the many years left remaining to her (albeit that one may involve the other). Mr Twigg specifically restricted himself to answering the complaints as drafted and not ‘wider questions’. In considering suitability, he focussed on a comparative analysis: his conclusion in terms was that Lorne Terrace was generally suitable but that if S’s needs would be better recognised and therefore met in Leicester, it was not suitable. Although that may be so, depending on the circumstances, it does not necessarily follow. With the benefit of hindsight, it might have been better if the opportunity provided by McCombe J had been used for a formal assessment rather than a complaint.[39]Secondly, and in any event, the panel widened the ambit of the reasoning by referring to S’s inability to access specialist NHS services with the result that payments were being required for private health care. Although Mr Twigg had made the point, it did not form part of his commentary or conclusions and the Council had made it clear that they relied on Mr Twigg as their response to the Stage III complaint; thus, it is not surprising that S’s solicitor did not focus on it or seek to call evidence about it. In fact, although at least one bill (from 1999) referred to payment for specialist services (“Multidisciplinary, psychology and Central Overhead Allocation”), it is now clear that S can access all NHS services in Sunderland and that, whether the Council has the power to pay for private health care or not, the managers of Lorne Terrace are quite content to rely on NHS provision only. To such extent as the panel (whom the Council, save exceptionally, must follow: see R v. Avon County Council ex parte M (1993) 2 CCLR 185) operated on a false premise, it would be wrong to make assumptions that the same conclusion would inevitably be reached after a more formal assessment. It is unnecessary for me to decide whether this error would have been sufficient to vitiate the decision on its own.[40]I am conscious that in reaching this conclusion, I have not resolved the competing arguments relating to the adequacy of monitoring. Suffice to say that having recognised that monitoring is important but only one of a number of features that fall to be considered, I do not wish to pre-judge any further formal assessment that takes place. Much depends, and will depend, both on the way in which S’s needs are assessed for now and into the foreseeable future, on the general suitability of premises and on the approach of the Council to monitoring S and those who will be responsible for her care. It is for the Council to determine how it should discharge its statutory responsibilities. Having said that, the mere fact of distance cannot be conclusive (given that there is specific provision for persons to be placed with other local authorities and the undeniable fact that placements have come to ESPA from many different parts of the country).

The Approach of the Panel

[41]Although not necessary for the purposes of the decision, in deference to the arguments that have been advanced, I ought shortly to express my views about the challenge to the decision of the Panel. Mr Wolfe argued that the Stage III panel had to reach its own conclusion on the factual and other issues involved, that is, not constrained by the findings of the investigator.[42]The Policy Guidance: Complaints Procedure Directions 1990 permit (at paragraph 7(2)) a complainant dissatisfied with the result of Stage II (which only requires consideration by the local authority and not by an independent investigator as prescribed by the Leicester scheme) to refer the mater to a panel “for review”. In the Leicester scheme, the panel is formally “The Complaints Review Panel”. In my judgment they were perfectly entitled to take the view, having read the papers, that “whilst they were not minded to dispute the facts as found by the independent investigator, they were entitled to draw their own conclusions from those facts”. They were not saying that they would not re-consider facts if there was a specific issue which concerned them; they were only identifying (as they were entitled to) the way in which they intended to approach their task. In any event, save in relation to specialist NHS access, Mr Wolfe essentially takes issues with conclusions from primary fact (such as, for example, the adequacy of monitoring) rather than the primary fact (namely the monitoring which in fact took place).

Article 8(1) of the ECHR

[43]It is beyond argument that Lorne Terrace presently represents S’s home and that an interference with her right to respect for her home infringes Article 8(1) of the ECHR. It is equally common ground, however, that such interference can be justified under Article 8(2) as being in accordance with law, in pursuit of one of the legitimate aims there set out (which include protection of health) and necessary in a democratic society, that is in pursuit of a pressing social need and proportionate to the legitimate aim pursued.[44]Given that I do not accept that the determination complied with the Council’s obligations under the relevant legislation, it is not in accordance with the law. Having said that, however, I am not for one moment saying that had it complied with this requirement, it would not also have been in pursuit of a legitimate aim and necessary in a democratic society as being in pursuit of a pressing social need and proportionate to the legitimate aim pursued. I have no difficulty in accepting (although this was not common ground) that the Council were and are seeking the betterment of S’s health and I can well understand why a move could well be in her long term interests and (given, in particular, the in-built protection that Professor Brugha could stop the process if he felt it appropriate to do so) proportionate to need. I do not accept as accurate S’s mother’s heartfelt view, long expressed, that it is now too late to move S. I recognise that she is now 35 years of age but she still has a lifetime in front of her and, in my judgment, it is vital that the regime suitable for her long term needs is addressed sooner rather than later. I am not saying that Lorne Terrace is not suitable or that it is necessarily appropriate that she move: that is a matter for others. Nothing in this judgment, however, should be taken as supporting the view that it is suitable. For the sake of completeness, I add that I do not believe that R v. North and East Devon Health Authority ex parte Coughlan [2001] QB 213 requires me to reach a different conclusion.

Concluding Remarks

[45]The upshot of this decision is that the Council’s decision conveyed by letter dated 20 November 2003 is quashed. I very much regret that it is therefore necessary that the parties go back to review where each stands and that the Council must determine, once again, how to proceed. I would not like to leave the case, however, without recognising the integrity of both sides. First, it is clear throughout the papers that S’s mother has been tireless in her pursuit of her daughter’s best interests as she believes them to be. No parent could have done more for her child and she has done so in moderate tone and with good grace. Whether or not her view should prevail, she is entitled to hold it and nothing that I have said should be taken to detract from that. Secondly, however, I also pay tribute to the Council’s officers. Although it has been argued that the extent to which the emphasis of their views has changed evidences an underlying motive simply to save money or make life easier for themselves, I do not believe that either is the underlying motive for the line they have taken; if there is to be a further appraisal, I am sure that they will approach it fairly, fully mindful of the statutory restrictions on the exercise of their discretion - - - - - - - - - - - - - - - - - - - - - - - MR JUSTICE LEVESON: For the reasons set out in the judgment which I now hand down, and in the light of that judgment by consent, I order that the defendant's decision of 20th November 2002 be quashed; that the defendant pay the claimant's costs to be assessed if not agreed; and for the claimant's costs to be assessed in the courts with the Community Legal Service Regulations 2000.

Cited in 1 later judgment