T & Ors, R (on the application of) v London Borough of Haringey [2005] EWHC 2235 (Admin)

Case No CO/1044/2003

[2005] EWHC 2235 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Friday, 21 st October 2005

Before

MR JUSTICE OUSELEY

THE QUEEN on the application of

Between

T (1)Claimant

D (2)Claimant

B (3)Claimant

THE LONDON BOROUGH OF HARINGEYDefendant

- and Between -

THE QUEEN on the application of

Between

DClaimant

HARINGEY TEACHING PRIMARY CARE TRUSTDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

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Mr P Bowen (instructed by John Ford, Solicitors) for Claimant

Mr J Presland (instructed by Head of Legal Services, Haringey LBC) for Defendant

Ms R Haynes (instructed by Capsticks, Solicitors) for Defendant

Judgment

Mr Justice Ouseley :

[1]This is yet another case in which the principal dispute is about who should decide what services the Claimant should receive and who should provide the relevant services to the Claimant. Those issues here are contested between Haringey London Borough Council as social services authority and Haringey Primary Care Trust performing its NHS health functions.

[2]The Claimants against Haringey LBC are a single mother, B, and her two daughters. The mother brings these proceedings both in her own right and as their litigation friend. Although both daughters are Claimants, that part of the claim with which I have been concerned relates to the younger daughter, D. The claim by T, the older daughter, has been adjourned by agreement. Her disabilities have affected however the care needs of the mother and D. Only the daughter D is a Claimant in the proceedings against Haringey PCT. The facts

[3]D was born on 8 March 2002 and is now three years old. Shortly after birth she was admitted to Great Ormond Street Hospital where she was diagnosed as having a haemangioma of the lip (a tangle of abnormal vessels that form an abnormal communication between the arterial and venous systems; a disfiguring, but non life-threatening condition), a subglottic haemangioma (which obstructs her airways) and a subglottic stenosis, a narrowing of the passages in her larynx. Because of the last two conditions she has had a tracheostomy (tube in the throat) fitted and it is anticipated that this will have to remain in place for several years. Operations in recent months have not proved as successful as had been hoped in widening the airways.

[4]T, her half sister, is now 19 years old. She has a profound bilateral sensory-neural hearing loss and uses hearing aids in both ears. She has poor vision. She is unable to communicate verbally and her ability to use sign is limited. In 1999 T was assessed as autistic. In September 2002 T became a residential pupil at a college in Kent, for 52 weeks of the year and remains there. She returns home regularly, currently about once a fortnight. Because of T’s challenging behaviour, the mother requires support when T is at home: at these times the burden of caring for both T and D is particularly acute.

[5]It is quite common now for children who have tracheostomies to be discharged from hospital and cared for at home, when previously they would have been kept in hospital because of the serious risks which arise if routine or emergency care is not provided for suctioning, tube replacement or changing or for tape refixing. Because, however, of the complications surrounding her tracheostomy and the absence of a suitable package of community care, D spent almost the first year of her life at Great Ormond Street Hospital.

[6]The management and safety of her tracheostomy was and remains D’s key care need. During the day, the tube may need suctioning as regularly as every 15 minutes, although the period between suctioning is often longer. She currently needs suctioning about three times a night. Suctioning requires disposable catheters attached to a battery-operated suction machine. In addition, the tube itself requires replacing regularly, about once a week, or when there is an emergency such as if D pulls the tube out altogether. If D is not suctioned or if the tube comes unstuck (which has not happened since she came home, but there is a risk), D would suffocate and die within minutes, or suffer serious brain damage in a shorter time. The tapes which keep the tube in place also need changing if they become loosened, wet, dirty or chafe.

[7]Great Ormond Street Hospital provides training for parents in how to manage those requirements at home; the Claimant mother has been trained fully in those areas. GOSH’s advice is that suctioning can be done by one person. The need for suctioning, which may reduce as a child becomes used to the tube, and increase if she is unwell, is to remove secretions and stop them sticking to the inside of the tube: if left, they will block the tube or cause infections to develop. The older a child is, the more obviously she will be able to alert a parent to the need for suctioning when awake. A parent grows to recognise when suctioning is required.

[8]Tape changes are likely to be needed once a day but GOSH says that it is essential that two people are available to change the tapes, one to hold the tube in place, the other to change the tapes. The mother’s evidence is that in fact she is able to and does change the tapes by herself.

[9]The tube should only need changing once a week and this should only be planned to be done when two people were present, one to deal with the tube, the other with the tape. The Claimant’s mother has never had to change it by herself, she receives medical assistance for that specific purpose. Mr Bowen for the Claimant accepted that in emergencies, tube replacement could be managed by one trained person, such as his client. An emergency may arise if the tube is pulled out accidentally by the child or by young friends.

[10]The GOSH advice says:

“● Help in the home/respite care Families’ needs for help vary, as does provision in different parts of the country. Some parents of children with tracheostomies have no extra help. However, if your child needs very frequent suctioning at night, you may become too tired to cope by day. If you have other small children to cope with, extra help might be needed in the home or with taking children to school. Sometimes the social services department can provide help in the home or with other children. They are usually not able to provide someone to care for your child with a tracheostomy, although some areas can arrange this. Help at night can sometimes be provided by the health authority, using carers with nursing skills or training in the care of a tracheostomy. Respite care for a child can sometimes be arranged to allow you to have a break and perhaps go away with your other children”

[11]It also deals with school or nursery attendance:

“● School or nursery Many children with tracheostomies are successfully placed in ordinary (mainstream) schools and nurseries. They must, however, have a carer with them at all times who is ready to carry out suction and to perform an emergency tube change, if necessary. This carer does not have to be a nurse, but must be trained in tracheostomy care and must not have other duties that would take him or her away from your child”

[12]It is plain from this that the care issues likely to arise for a single mother, trained in the relevant procedures, will be:(i) what alternative care should be available on at least some nights so that proper sleep is available,

(ii) what alternative care should be available by day if the child is not at school,

(iii) what alternative care is required at school if the mother is not to provide all of it, and in this particular case,

(iv) what additional or alternative care is required when T is at home. It is impossible for one person to provide 24 hours care, 7 days a week, a level of care or supervision which it is necessary to have at hand because of the gravity of the risks which can so rapidly develop in an emergency or if routine suctioning needs are not met. This has been called respite care in the case, but it is the same level and nature of care which the mother provides and it is obviously provided to D.

[13]Before D first left Great Ormond Street Hospital, a discharge planning meeting in July 2002 (2/2/56) attended by the mother, Ms Cuffy who is a LBH social worker with its disabled children team, Ms Anderson who is a GOSH social worker, and others, agreed that there was a need for trained respite care during the day or night. Ms Anderson recognised the need for additional care when T was at home.

[14]It had been hoped that the mother’s brother would be trained in tracheostomy care so as to be able to act as a second carer but he felt unable to receive the full training and his availability as a second carer was very limited anyway. Neither father has been referred to in the case in any way.

[15]When D was eventually discharged in February 2003, it appears that it was planned for the Claimants to receive from HPCT four nights respite care initially, which was reduced then to two nights, in two 10 hour shifts. HPCT say that D never actually received 4 nights respite care. It was left up to the mother how she in fact used the 20 hours; she chose to have one night and one day shift, split 11 or 12 hours by night and 8 or 9 hours by day. In July 2003, it was also agreed that HPCT would provide an additional seven hours respite care a month for T’s visits, or the mother’s visits to T.

[16]In August 2003, Dr Meates, D’s consultant paediatrician, expressed the view to the GP that the respite care package was too little, by day and night. Ms MacDonald, a paediatric nursing consultant engaged by the mother also advised that in August 2003 the respite care provided was “the absolute minimum in terms of patient safety”, and that one night’s sleep a week was too little for the mother to remain sufficiently alert to provide for D’s needs, including physical care and managing the home. If she rested by day, she could not do any of the other things out of the house which needed doing and which others take for granted. She therefore recommended “a minimum of 30-40 hours of night care” to provide 3-4 nights of sleep:

“This care need not necessarily be from a qualified nurse. A healthcare assistant could be trained to carry out tracheal suction and would need to awaken [the mother] if she couldn’t quickly clear the tube.”

[17]I do not see any advantage in going through the early days of care provision after discharge from hospital because both the needs and the provision have changed over time and it is the present level and nature of provision which matters. Its later evolution may be of some assistance in resolving the issue as to which authority ought to be paying for the care. D’s needs have evolved as she gets older and her educational requirements have become more apparent.

[18]On 30 September 2003, LBH produced an assessment under the Children Act 1989 which said that the mother needed respite to enable her to develop her own social life, and that inadequate respite for her would pose an increased risk to D; there was a strain within the family and it was fundamental that the mother receive extra respite. Judicial review proceedings had already been begun in February 2003 against LBH.

[19]On 20 July 2004, HPCT, through the Service Manager of Specialist Child Care Services, wrote to the mother saying:

“It is now over 6 months since Paulette Blake, Continuing Care Nurse Specialist left her post at Haringey PCT. As you know, Paulette was responsible for arranging and coordinating [D’s] care package. The post is currently unfilled pending a decision on how best to use the resources across North Central London. In the meantime, I have arranged for the Camden and Islington Team to carry out an up to date Health Needs Assessment for [D]. This will look at [D’s] current needs and review her care packages; jointly with the North Middlesex Hospital Children’s Homecare Nursing Team.”

[20]Considerable importance was attached to that letter by Mr Bowen for the Claimants as showing that the assessment which was produced in reply and upon which he also placed great weight, was an assessment sought by HPCT for the purpose of its duties, in effect delegating the task of assessment to the IPCT. The HPCT did not see it in that light; although it was copied to Mrs Webster of that Trust, she did not see it at the time.

[21]The assessment dated 3 September 2004 recommended:

“3-4 nights, 10 hours a week trained carer support – social and health funded. This would leave 3-4 nights a week when mum will almost certainly have an interrupted nights sleep. It is essential to try and maintain continuity of carer/nurse for [D] and her mother. A trained health care assistant could very suitably provide this care. It is also essential to ensure that the times that mum wants the respite should be paramount and that the responsibility of the agency is to meet this. Once [D] is at nursery this should enable mum to have certain amount of free time. However at the moment mum is planning to stay with [D] at nursery as no one has been allocated to provide the one to one support that [D] will need in nursery to ensure her safety. Until [D] is of statutory school age the responsibility to fund this carer should fall to health and/or social. Until this is funded then the current arrangement should be continued whereby the agency nurse does 1 8 hour shift a week and should take [D] to nursery. During the weekend visits of [D’s] older sister, mum needs 4 hours of respite each day that her sister is home.”

[22]IPCT clarified this in reply to a letter from the Claimants’ solicitors dated 1 July 2005. The assessment appears not to have been sent to the Claimants, and until 9 February 2005, when it was sent by the LBH solicitors to the Claimants’ solicitors, it appears not to have been known of by the latter. Some play was made of that by Mr Bowen.

[23]In this reply, IPCT referred to the assessment on behalf of the HPCT and does not suggest that it was for some other purpose. It says that a comprehensive assessment of needs was carried out at HPCT’s request. The requirement for night respite care was for three or four nights a week, at ten hours a night. A trained carer, who had had the necessary specific training would be sufficiently qualified; it was not necessary for the carer to be a trained nurse.

[24]Following an ADR meeting between the mother and LBH on 3 September 2004, LBH agreed to fund an additional ten hours night respite care until the conclusion of the litigation, or until staff, at the nursery to which D was being sent, had been trained.

[25]On 10 January 2005, a further Core Assessment and Care Plan was produced by LBH under the Children Act 1989. The family Support Care Plan sets out the provision which is required and who is supposed to provide it. D’s mother is provided with twenty hours by HPCT, which she takes as one day and one night respite care. She also receives ten hours a night respite, reluctantly funded for the time being by LBH social services; to provide it LBH, like the HPCT, uses the services of registered nurses. There is a further three hours a week day time qualified care provided by the Lifeforce Team, NHS lottery funded, which is used sometimes to accompany D to school and to look after her there. She also receives additional help from the HPCT when T visits. The HPCT says that this is provided for at the rate of seven hours a week which can be taken even if T does not visit and can be carried over. The Claimant says that this is only provided at seven hours a month and after travel time leaves little enough time with T.

[26]I do not propose to resolve the surprising dispute which emerged during the hearing as to whether the provision for T was seven hours per week or per month. It is clearly intended to be seven hours per week; that may not have been clear to the Claimant who says that she has not received seven hours per week. The HPCT invoices might suggest otherwise in terms of payment. What is not at issue in this litigation is that the HPCT intends to pay for seven hours per week for that purpose and accepts that if not used for that specific purpose, it can nonetheless still be used. I shall treat it as available to the Claimant at least in the future.

[27]The Claimant also receives 4 hours during the day, every other week, from LBH social services under a programme called “Breathing Space”. None of the LBH social care workers are qualified so as to be able to provide the necessary tracheostomy care. This means that the Claimant has to remain in the house with her daughter, even though the unqualified staff may also be in the house. The nature of the care is such that staff are not willing to be trained because of the risks which they feel they might run.

[28]D is supposed, according to the plan, to attend nursery school 15 hours a week; this is important for her speech and social development, more so than it might be for other three year olds because of the disfiguring haemangioma on her lip. But she does not do so unless her mother is with her, because there are no suitably trained staff there to deal with her needs. Her mother is not always able or willing to take her or to use her day respite care nurse because that would use up her respite care by day. The nursery school staff at the school which D attends are also unwilling, at least at present, to be trained in the relevant procedures. The Plan is silent as to who should pay for any care at school.

[29]These categories of respite care are in fact provided by registered nurses. Neither authority in reality can obtain the services of suitably trained carers who are not registered nurses. Although other views about it can be seen in the documents, it is clear from the letter of 31 May 2005 from Dr Daniels, D’s current consultant paediatrician at GOSH, that D’s care does not require qualified nursing personnel but does require that she be looked after by someone who can deal with the problems of blocking, or of the tube falling out and any other problems which may occur. The case has proceeded on the basis that she does not need qualified nurses as such for her care, because of any particular skill which they alone possess.

[30]As a result of the ADR and following this latest assessment by LBH, LBH wrote to the HPCT seeking its co-operation under section 27 Children Act 1989. Its letter of 1 February 2005 specifically asked if the PCT agreed with the above assessment of the respite care needs by night, day and at school. It replied through its solicitors on 7 February 2005 that:

“1. The PCT does not agree with the Local Authority that the PCT should provide an additional 10 hours per week of night respite care. The 20 hours of respite care per week is considered fair and adequate: indeed, it is understood that [D’s] family health visitor has recently been informed by her mother that [D] now sleeps though most nights, unless she is unwell; more generally, we are instructed that [D] is meeting all her developmental milestones and doing well – with communication as in other areas of her life. 3. As for the nursery, additional assistance could be considered, but the PCT’s staff originally put forward for consideration a contribution of one session, in conjunction with such provision from Social Services and Education subject to the outcome of the statementing process.”

[31]Ms Haynes for HPCT clarified that the answer meant not only that the HPCT did not consider that it should pay for the extra ten hours but also that it did not think that the extra ten hours was necessary. Its view was that twenty hours sufficed for night respite and if the Claimant chose not to use the hours in that way, that was a matter for her and not a matter for complaint against the LBH or PCT. As Mr Bowen pointed out on more than one occasion this was not the view expressed by IPCT.

[32]He referred to subsequent letters in support of a contention that the HPCT was adopting an inflexible blanket approach to this provision which was unlawful on ordinary public law grounds. On 9 February 2005, HPCT had written to the Claimants’ solicitors saying that there were no specific eligibility criteria in respect of nursing care at home:

“The normal practice is to base requirements on individual assessments of needs, and, as a benchmark, the PCT begins with 2 nights per week for children with a chronic disease or disability.”

There is no statutory requirement for a Health Authority to have eligibility criteria for children, although there is for adults.

[33]In March 2005, the HPCT reluctantly agreed to provide six hours of qualified care for six weeks at the nursery school, and has reluctantly agreed to continue that six hours per week until judgment. It appears that in May 2005 LBH as local education authority agreed on a short term basis, to fund one day’s qualified care at the nursery. LBH has agreed to continue to fund the extra ten hours a night, but says is not its responsibility, until trial and then until judgment. It also intends to drop that extra provision once adequate provision is made for nursery attendance. HPCT also took the view that there were other schools which D could attend at which suitably trained carers were available. The PCT would also intend that were it to continue with nursery school support that should be deducted from the twenty hours and not be additional to it.

[34]An updated report from Ms MacDonald dated 23 June 2005 confirmed that a minimum overnight care of three-four nights should be provided; this could be covered by a healthcare assistant, it seems, because she could wake the mother if an emergency arose. Daytime nursery provision for at least two-three sessions per week should be made and this should be covered by a qualified nurse, because she would be on her own. Notwithstanding that comment, there still was no real issue but that the care needs could be properly met by someone who was suitably trained and that it did not need to be by a registered nurse as such.

[35]The Claimant mother’s sixth, seventh and ninth witness statements gave a picture of her night time needs. In November 2003, the sixth statement said that she could only allow herself to drop asleep at night if she were near enough to hear if D needed her in the night; D also has a sleep apnoea alarm. The Claimant tended to go to sleep at 3 am. In December 2004, she spoke of the lack of sleep she had been suffering from for eighteen months, leaving her often too tired to take D to school; but there was little enough detail about the problems and whether in reality she was able to get reasonable if disturbed sleep. Her most recent statement prepared during the hearing referred to the marked improvement in her well being which the extra ten hours had brought. She could now get more things done. If she were on her own, she would get about five or six hours sleep a night of which only two or three would be uninterrupted; this left her very exhausted for the day. As D was now older, she could come and wake her mother if something went wrong in certain circumstances.

[36]The focus of Mr Bowen’s attack was the provision of the extra ten hours care at night. HPCT was not threatening to cease other provision which it made. The provision of nursing care for D at nursery school was an issue upon which all parties asked me specifically not to rule, because it was thought that my judgment on the other aspect would enable nursing care at school to be resolved by negotiation. It was fully debated however and it is inevitable that the judgment will contain points which bear directly on it. Mr Bowen contended that the LBH was obliged to provide the nursing care at issue, because it was under duties created by section 17 of the Children Act 1989 and sections 2 and 28A of the Chronically Sick and Disabled Persons Act 1970. It was not prevented by section 49 of the Health and Social Care Act 2001 from providing that care, at least under the Children Act.

[37]If the LBH were not able to provide that assistance, it was for the HPCT to do so. It had duties under the National Health Service Act 1977, which had become enforceable by the individual claimants because, read with section 3 Human Rights Act, there would be a breach of Articles 2 and 8 ECHR if the provision sought were not made. In addition the Claimants were granted leave to add a new ground, notified to the HPCT in mid June, that the HPCT had applied an inflexible policy of providing only two nights respite care and had failed to consider the individual circumstances of D and her mother. They were also granted leave at the hearing to add two further grounds: that HPCT had given inadequate reasons for not accepting the assessment of needs provided by IPCT at its request or for concluding that the needs of the Claimants did not exceed the benchmark of two nights respite care. HPCT was also in breach of its obligation under section 27 Children Act 1989 to comply with the request for co-operation made by LBH in February 2005.

[38]LBH did not take issue with the needs of the Claimants as set out in the latest Care Plan which it produced. It submitted that the care at issue was care which it was prohibited from supplying under the CSDPA by section 49 of the HSCA 2001. The Children Act and CSDPA were also simply not apt to cover the provision of such services. Even if section 49 did not prohibit that provision, there was still a divide between the provision of health and social services and, in contrast to Mr Bowen’s submissions, this service fell on the health provision side. In any event, the provision of such services was open to the HPCT and its resources were relevant in any judgment which the LBH made about how it would allocate resources and what resources were available to the Claimants. The Children Act did not give rise to any relevant duty here enforceable by an individual. The provisions of the CSDPA 1970 did not extend so far as was necessary to cover this nursing care.

[39]As against the HPCT, LBH said that it had invoked the co-operation provisions of section 27 of Children Act which the PCT had unlawfully failed to meet. It had not brought any judicial review proceedings in its own right in respect of that claim. The duty in sections 1 and 3 of the NHSA 1977 had crystallised in the circumstances, an assessment had been made on behalf of the HPCT by IPCT, no reasons had been given for not adopting and giving effect to it and it had adopted a rigid policy of sticking to its benchmark.

[40]The HPCT denied that section 49 HCSA prevented LBH providing the nursing care and asserted that the ten hours at issue fell more naturally into social care than health. In any event it rejected the view that the extra ten hours were necessary; the IPCT assessment was not accepted nor was it one which had been provided for the purpose of reaching an assessment binding on the HPCT as to its obligations towards D. It was not its function to provide health care for the Claimant at school and there was no duty to that end which could be enforced by the Claimants. There were also other schools which could provide the necessary nursing facilities. It took issue with the claims that it had been rigid in its application of the benchmark; needs had been considered and the HPCT had been generous in its application of NHS funds to the Claimants. There were many competing demands for finite resources and no specific duty, enforceable in the interest of the Claimants, had arisen. The ECHR should not be used to turn the target duty into a specific duty. The statutory provisions

[41]I turn to the statutory provisions. First, the Children Act 1989. Section 17 provides, so far as material: “(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (2) For the purpose principally of facilitating the discharge of their general duty under this section every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2. (3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. (10) For the purpose of this Part a child shall be taken to be in need if-

(c) he is disabled, (11) For the purposes of this Part, a child is disabled if he is substantially and permanently handicapped by illness, injury or congenital deformity.” (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.

[42]Other provisions permit the services to be charged for. It is agreed that D is disabled because, in the absence of corrective surgery, her disability is permanent.

[43]Part 1 of Schedule 2 to the Children Act provides in paragraphs 1 and 6:

“(1) Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area. (6) Every local authority shall provide services designed- (a) to minimise the effect on disabled children within their area of their disabilities; and (b) to give such children the opportunity to lead lives which are as normal as possible.”

[44]Section 27 of the Children Act provides:

“(1) Where it appears to a local authority that any authority…mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority…, specifying the action in question. (2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions”

[45]The authorities whose help can be requested include PCTs.

[46]Next, the Chronically Sick and Disabled Person Act 1970. Section 2, as amended and so far as material, and 28A provide:

“(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely- (a) the provision of practical assistance for that person in his home; (b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities; ( c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him; then,…subject…[…to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29. 28A Application of Act to authorities having functions under the Children Act 1989. This Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989 as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies.”

[47]Section 1 of the National Health Service Act 1977 provides:

“It is the Secretary of State’s duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement – (a) in the physical and mental health of the people of those countries, and (b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act.”

[48]Section 3(1) of the 1977 Act imposes a duty on the Secretary of State:

“to provide throughout England and Wales to such extent as he considers necessary to meet all reasonable requirements – (a) hospital accommodation … (c) such facilities for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness as he considers are appropriate as part of the health service; (f) such other services as are required for the diagnosis and treatment of illness.”

[49]These services are free by statute, except where there is a power to charge. This contrasts with the position in principle in relation to the provision of social services.

[50]Section 49 of the Health and Social Care Act 2001 provides: “(1) Nothing in the enactments relating to the provision of community care services shall authorise or require a local authority in or in connection with the provision of any such services, to-(a) provide for any person, or

(b) arrange for any person to be provided with, nursing care by a registered nurse. (2) In this section “nursing care by a registered nurse” means any services provided by a registered nurse and involving- (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which, having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse” nursing care by a registered nurse. (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care,

[51]The “enactments relating to the provision of community care services” are defined in section 59 by reference to the provisions of section 46(3) of the National Health Service and Community Care Act 1990. These enactments do not expressly include either the Children Act 1989 or the CSDPA 1970: they do include the National Assistance Act 1948 Part 3. Discussion and Conclusions

[52]In my judgment, the first issue to resolve is whether or not the care at the heart of this dispute is one which LBH has the power to provide or is under any legal duty to do so, whether individually enforceable or not. It is understandable that the parties should have put the question of the exclusionary application of section 49 of the Health and Social Care Act 2001 first, because its application would eliminate the need for consideration of many issues. But it is not the logical, and in my judgment necessary, starting point.

[53]I shall deal first with section 17 and Schedule 2 to the Children Act 1989, and whether it contains a legally enforceable duty on LBH to provide the disputed care. It was accepted by all parties to this case that, whether or not section 49 of the HSCA 2001 applied to any of the statutory provisions at issue, there was nonetheless a divide which had to be respected between health provision and social care provision. The distinction was relevant to an understanding of the true scope of the Children Act provisions. In this context all parties found assistance in the discussion in R v North and East Devon Health Authority ex p Coughlan

[2001] QB 213

, decided in 1999.

[54]This discussion was concerned with the effect of section 21 (5) and (8) of the National Assistance Act 1948 which enabled a social services authority to provide nursing services if and only if they were “provided in connection with the accommodation” provided by the social services authority, and precluded it providing services provided under the National Health Service Act. The Court of Appeal held: 29. …The section should not be regarded as preventing a local authority from providing any health services. The subsection’s prohibitive effect is limited to those health services which, in fact, have been authorised or required to be provided under the 1977 Act. Such health services would not therefore include services which the Secretary of State legitimately decided under section 3(1) of the 1977 Act it was not necessary for the NHS to provide… The true effect is to emphasise that 1948 Act provision, which is secondary to 1977 Act provision, may nevertheless include nursing care which properly falls outside the NHS. Conclusion 30 (a) The Secretary of State can exclude some nursing services from the services provided by the NHS. Such services can then be provided as a social or care service rather than as a health service. ( c) The fact that the nursing services are to be provided as part of social services care and will have to be paid for by the person concerned, unless that person’s resources mean that he or she will be exempt from having to pay for those services, does not prohibit the Secretary of State from deciding not to provide those services. (d) The fact that some nursing services can be properly regarded as part of social services care, to be provided by the local authority, does not mean that all nursing services provided to those in the care of the local authority can be treated in this way. The scale and type of nursing required in an individual case may mean that it would not be appropriate to regard all or part of the nursing as being part of the package of care which can be provided by a local authority. There can be no precise legal line drawn between those nursing services which are and those which are not capable of being related as included in such a package of care services. (e) The distinction between those services which can and cannot be so provided is one of degree which in a borderline case will depend on a careful appraisal of the facts of the individual case. However, as a very general indication as to where the line is to be drawn, it can be said that if the nursing services are (i) merely incidental or ancillary to the provision of the accommodation which a local authority is under a duty to provide to the category of persons to whom section 21 of the 1948 Act refers and (ii) of a nature which it can be expected that an authority whose primary responsibility is to provide social services can be expected to provide, then they can be provided under section 21. It will be appreciated that the first part of the test is focusing on the overall quantity of the service and the second part on the quality of the services provided. (f) The fact that care services are provided on a means tested contribution basis does not prevent the Secretary of State declining to provide the nursing part of those services on the NHS. However, he can only decline if he has formed a judgment which is tenable and consistent with his long-term general duty to continue to promote a comprehensive free health service that it is not necessary to provide the services. He cannot decline simply because social services will fill the gap. 31. It follows that we do not accept the judge’s conclusion that all nursing care must be the sole responsibility of the NHS and has to be provided by the health authority. Whether it can be provided by the local authority has to be determined on an assessment of the circumstances of the individual concerned. The Secretary of State accepts that, where the primary need is a health need, then the responsibility is that of the NHS, even when the individual has been placed in a home by a local authority. The difficulty is identifying the cases which are required to be placed into that category on their facts in order to comply with the statutory provisions. Here the needs of Miss Coughlan and her fellow occupants were primarily health needs for which the health authority is as a matter of law responsible, for reasons which we will now explain”. Conclusion ( c) The fact that the nursing services are to be provided as part of social services care and will have to be paid for by the person concerned, unless that person’s resources mean that he or she will be exempt from having to pay for those services, does not prohibit the Secretary of State from deciding not to provide those services.

Conclusion

[55]Mr Bowen submitted that the nursing care required by D and her mother did not fall outside the social care provisions of the Children Act because on the facts, any carer could be trained in suction and to change the tracheostomy; and IPCT accepted that a trained healthcare assistant could do it. It was necessary to look at the nature and type of intervention required, whether there were risks involved and whether it was of a routine nature, and at the level of care and skill which the service provider had to have. Nor did it matter that the care might in fact be provided by a registered nurse. This showed the care to be on the social care side of the line.

[56]Mr Presland submitted that the provision of nursing care of the sort in question here fell outside the true scope of section 17 or paragraph 6 of Schedule 2. The provisions did not naturally embrace health care. He drew on Coughlan to show the boundary between health and care services. The provision at issue fell on the health care side of the line; it could not be said to be incidental to some other provision such as the provision of accommodation, nor was it of a nature which could be expected of an authority whose primary function was the provision of social services. Attending to a tracheostomy would be a health care matter, quite apart from the effect of section 49. Dressing, feeding and toileting would be social care matters.

[57]Mr Presland submitted that there was a considerable cross-over between what could be provided by way of nursing services by health and social services authorities following Coughlan. It showed that NHS care did not have to be provided in a hospital. Eligibility criteria were important for deciding those issues. Such criteria, after Coughlan, were required to be agreed in relation to adults by guidance issued in 2001, and Directions in 2004 required the Strategic Health Authority to draft them. Those requirements did not extend to children. The adult eligibility criteria produced by the North Central London SHA, which Mr Presland and Mr Bowen adduced, show that for an adult who has a tracheostomy which he cannot manage himself, e.g. because of disabilities, the weighting of responsibility is 100 per cent to health.

[58]The needs could not be provided for here without undue impact on the resources available for other children. He compared it with the language of provisions of paragraph 8 of Schedule 2 which in general terms imposes a target dutyon social service authorities to provide certain services to children living with their families. Those requirements would be even less likely to include the provision of what he contended ought properly to be regarded as health assistance.

[59]Ms Haynes supported the Claimant’s contention that nursing care could be both a community care and a health service. This, she said, was a duty wholly or partly for LBH, which had assessed the needs to be met, and to be met whether or not HPCT had failed in any part of its duty.

[60]I do not consider that the service in question falls within the scope of the Children Act section 17 or any of the paragraphs of Schedule 2 which were referred to.

[61]I accept, first, that there is a broad distinction to be drawn between health and social care provision which illustrates the true interpretation of those provisions. It does so even though there may be an overlap between the two in any given case. The discussion in Coughlan is helpful as to the indicators relevant here: the provisions of the Children Act are not to be regarded in general as reducing or replacing the important public obligations, with their qualifications and their target nature, set out in the 1977 NHS Act. I do not see that the impact there of section 21(8) of the NAA 1948 means that the principles enunciated were peculiar to that Act, incapable of sensible application to the Children Act. Children Act nursing care provision is only that which properly falls outside scope of the NHS.

[62]The scale and type of nursing care is particularly important as is the question of whether its provision is incidental or ancillary to the provision of some other service which the social services authority is lawfully providing, and whether it is of a nature which such authority can be expected to provide.

[63]Second, this is care designed to deal with the continuing medical consequences of an operation, which if not met will give rise to urgent or immediate medical needs: tube replacement and unblocking, to avoid very significant risks of a life threatening nature. The advice on management is provided by a hospital. The training is provided by the medically qualified.

[64]The largest part of the provision actually made is made by the HPCT as part of the NHS obligations to patients, i.e. twenty hours a week plus the 7 hours a week related to T. I see that as clearly signifying acceptance by HPCT, LBH and indeed the Claimants, that D is receiving medical care. HPCT does not dispute any obligation to that extent, though it may be at issue as to whether it is legally enforceable. But for the care, D would have to stay in hospital. The adult weighting of 100 per cent to health is a pointer in the same direction. The GOSH advice and the arrangement of the package suggests a health responsibility.

[65]To my mind, it also shows how the purpose of the care should be regarded. It is spoken of as respite care for the mother. From one viewpoint, the purpose of its provision is so that the mother can have a few nights of unbroken sleep per week or some time by herself a week or to look after T. That could be seen as social care for the mother. But its nature and purpose is to provide medical care for D; the intention behind the provision of that medical care is her safety while her mother enjoys respite. There is nothing different in quality or care about the disputed provision.

[66]The gravity of the consequences of a failure in care, the duration of the care need, which required her carer always to be present lest something had to be dealt with rapidly, underscores the medical rather than social service nature of the provision.

[67]It has in fact always been provided by nurses except where the mother has had specific training. The reluctance of others, whether teachers, close relatives or health care assistants, to be trained in the particular procedures serves only to emphasise the medical nature of the provision without itself being determinative. The nurses themselves require specific training in tracheostomy care. While it is possible for others to be trained in that specific care, it would still clearly be an important medical procedure in which they were trained.

[68]Those factors, taken together, show this particular care for D to fall outside the scope of the general obligation in section 17(1) of the Children Act “to safeguard and promote the welfare of children by proving a range and level of services appropriate to” their needs, or in Schedule 2 paragraph 6 to “minimise the effect on disabled children” of their disabilities or to give them the opportunity to lead normal lives so far as possible. On one broad interpretation, those provisions could cover what are essentially medical needs. Such an interpretation would turn the social services authority into a substitute or additional NHS for children. That would be to provide an impermissibly wide interpretation, creating obligations on a social services authority which are far too broad in the context of other statutory bodies and provisions covering the needs of children.

[69]To give to the provisions of the Children Act the effect sought by Mr Bowen would be to make almost anything possible under Schedule 2 by way of medical care, including operations which were manifestly to be dealt with under the NHS Act. Were it otherwise, the LBH could only meet D’s medical needs by drawing on resources which were required for the social welfare of other children. I do not see the provision of the care here is of an “overlap” type, where both authorities have a clear role to play.

[70]The fact that a need has been assessed by the local authority pursuant to Schedule 2 paragraph 1 does not create a duty on the local authority to meet that need. The task of assessment involved looking at the whole spectrum of needs, social, health, educational and others, which could not properly then fall upon the social services authority. The assessment of the child’s needs, which has to be comprehensive, can properly include the availability of medical provision under the provision of the NHS Act. I reject the suggestion of Mr Bowen that the local authority was the “default provider” for those needs which it assessed, even those which fell primarily into the province of other bodies, but which those others might not meet.

[71]If I am wrong about this interpretation of the relevant provisions of the Children Act, the Claimants would still not be able to succeed in these proceedings against LBH for the individual specific enforcement of any obligation: the obligations relied on are all “target” obligations.

[72]Mr Bowen had contrasted the language of paragraphs 1 and 6 of Schedule 2 to the Children Act with the language of other paragraphs such as 5 and 8 which require “reasonable” steps to be taken or “appropriate provision” to be made. This showed, he said, that paragraphs 1 and 6 were more than target duties.

[73]These provisions however have been considered in R(G) v Barnet LBC

[2003] UKHL 57

[2004] 2 AC 208

. The duty to make an assessment under paragraphs 1 and 3 of schedule 2, together with section 17(1), is a specific and individually enforceable duty. Otherwise the provisions of section 17 contain general duties and the fact that the assessment may have identified a particular need does not make it one which there is an individually enforceable duty to provide. Many other duties were alike in their legal effect. The nature of the discretion given to the local authority showed which provisions did not give rise to a legally enforceable duty. The duties in Schedule 2 followed the same pattern. Paragraph 6 was specifically identified as one which left substantial matters to the discretion of the local authority and which could not lead to an enforceable duty towards an affected individual.

[74]It follows that Mr Bowen’s assertion that the Children Act Schedule 2 paragraph 6 provides for a duty upon the LBH which can be enforced through action, to provide the night care or nursery care assistance at issue, even though it is an assessed need, is wrong. Neither that paragraph nor section 17(1) give rise to more than what has been called a target duty.

[75]It follows also from what I have concluded about the powers of the LBH under the Children Act, that it cannot invoke section 27 and call upon HPCT to co-operate. It has no function in respect of which it can seek such co-operation.

[76]I turn next to sections 2 and 28A CSDPA 1970.

[77]The first question is whether section 2(1)(a) – (c) CSDPA covers the provision of the care at issue here. For the same reasoning which I have set out in relation to section 17 and Schedule 2 to the Children Act, I do not consider that those subsections should be given so wide an interpretation as would cover the day or night respite care. Such care can be seen as “practical assistance” in the home, but in the context of those provisions and with the broad health and social services division in mind, that phrase is not apt to include this nursing care. Subsection (a)’s concept of “practical assistance” does not extend to medical treatment of that nature. This is not assisting in movement, dressing, feeding, hygiene, lavatory functions or any other of the aspects of life for which chronically sick and disabled need assistance. Still less does it come within the recreational provision in subsection (b). I do not find it easy to see that the concept of “assistance…in taking advantage of educational facilities” includes, in the context of lectures, games, outings and so on, essential nursing care for medical reasons enabling school to be attended in the first place.

[78]If, however, section 2 and 28A did apply to the nursing care at issue, whether nursery school related or home respite care, the next questions are whether section 49 HSCA 2001 applies to it and if so whether the care in question falls within its exclusionary ambit as “nursing care by a registered nurse”.

[79]The application of section 49 to section 2 CSDPA depends on whether the latter, which is not expressly included as an “enactment relating to the provision of community care services”, comes within its scope because of the references in section 2 and 28A to the NAA 1948 which is such an enactment.

[80]I was referred to three cases. The first is R v Powys CC ex p Hamidge

[1998] 1 CCLR 458

. The issue was whether a social services authority was entitled to charge for the provision of practical aids to a severely disabled adult under CSDPA 1970. Under the provisions of the Health and Social Services and Social Security Adjudications Act 1983, it could do so if the service was “provided under…section 29 of the National Assistance Act 1948”. It appears to have been common ground that the effect of section 2 of CSDPA was that the service was provided in the exercise of functions under section 29 of the 1948 Act.

[81]Thus Mr Presland submitted here : services provided under section 2 CSDPA are “community care services” for the purposes of sections 49 and 59 of the 2001 Act, as they are provided under section 29 and Part 3 of the 1948 Act; and the CSDPA is an enactment relating to the provision of community care services, although not specified as such in section 59 of the 2001 Act, because services under it are provided through an enactment which is so specified. So the provision of nursing care by a registered nurse could not be provided under CSDPA because of section 49 HSCA.

[82]R v Bexley LBC ex p B

[1995] 3 CCLR 15

does not advance the issue.

[83]The third case is the most important; it is R (Spink) v LB Wandsworth

[2005] EWCA Civ 302

. The case concerned whether the local authority owed a statutory duty to two very disabled children to provide and pay for aids and adaptations to the family home to meet their needs. The issue turned on whether the authority could take into account the means of the parents in deciding whether or not to provide and pay for the alterations.

[84]The Court held that it would be perverse to interpret sections 2 and 28A of the CSDPA as requiring local authorities to behave as if section 29 of the 1948 Act still applied to children when they had expressly been removed from its ambit by amendment to section 29. It rejected the children’s submission that if a scheme made by the Secretary of State created duties under section 29 of the 1948 Act that meant that functions under section 2 of the CSDPA were performed only through section 29:

“34…On the contrary, section 2 of the 1970 Act expressly provided that local authorities were to comply with their obligations under that section in the exercise of their functions under section 29 of the 1948 Act “notwithstanding anything in any scheme made by the authority under section 29”

. Just as the Secretary of State might be able to impose a duty on local authorities, enforceable by individuals, to exercise their functions under section 29, so section 2 of the 1970 Act could impose a similar duty. 35. Once this is appreciated, there is no difficulty in interpreting sections 2 and 28A of the 1970 Act as requiring local authorities to comply with the requirements of section 2, in so far as these apply to children, by the exercise of their functions under Part III of the Children Act, of which section 17 is particularly relevant. In our judgment this is the correct interpretation of those sections, as Mr Kovats has submitted. It is the only interpretation that produces a coherent legislative scheme. 36. It follows that, where a local authority provides services in accordance with obligations imposed by section 2 of the 1970 Act by exercising functions under section 17 of the Children Act, the provision of those services is subject to such rights to charge as are conferred by section 29 of the Children Act.”

[85]The Court also concluded that in assessing whether there were needs under section 2 of the CSDPA which it was necessary for the Council to provide, the Council could have regard not merely to its own resources but it could have regard to those of the individual, and if a child, to the resources of its parents. The same appears to apply to services under the Children Act.

[86]Mr Presland acknowledged, without conceding the point entirely, that the probable effect of Spink on the operation of sections 2 and 28A of the CSDPA was that they substituted references to Part 3 of the 1989 Act for references to section 29 of the 1948 Act throughout section 2. He pointed out that until Spink, it would have been generally thought in the light of the earlier cases that the correct approach was to see section 2 operating through section 29of the 1948 Act. That would have led to section 49 of the 2001 Act biting, because section 29 of the 1948 Act was an enactment relating to the provision of community care within section 59 of the 2001 Act. It would be odd to have different provisions in relation to nursing care as between adults and children. If Spink were correct, a local authority could provide nursing care, and charge for it. Although HASSASSA permits services under the NAA to be charged for, that does not apply to services under section 2 CSDPA. Mr Presland said that it was arguable that, notwithstanding Spink, the references to the NAA in section 2 should be read as having some effect, in order to avoid the anomalous distinction in treatment between adults and children which would otherwise arise out of an Act the purpose of which was to ensure that certain nursing services were free.

[87]Although the decision in Spink may not sit wholly comfortably with Hamidge, and although Mr Presland seems to be right in saying that a possible consequence of Spink is that in certain circumstances anomalous distinctions may arise between adults and children nursing services if provided under the CSDPA 1970, the conclusion of Spink is clear and binding. It is in effect that references to Part 3 of the Children Act are substituted for references to section 29 of the NAA 1948 throughout section 2. It provides for analogous duties as between the Children Act and NAA when CSDPA functions are exercised in relation to children. Accordingly, section 49 HSCA does not apply to the CSDPA in relation to children, so as to exclude the nursing provision were it otherwise required.

[88]As an aside, it seems to me that one explanation for section 49 of the HSCA not including either Children Act or CSDPA functions is that it was not thought that the language in which their functions was couched would permit the potential for nursing care by registered nurses for medical conditions to arise as social service functions. It would be the reverse for NAA functions exercised by social services authorities.

[89]Had section 49 been applicable, however, I would have regarded the nursing care at issue as excluded by it essentially for the same reasons which led me to conclude that it fell outside the provisions in the first place. I would not regard the mere fact that it was here provided by registered nurses as more than a factor, however.

[90]I accept that Mr Bowen is correct that if sections 2 and 28A were to cover the provision of the care in question, then a duty to meet the assessed need, enforceable by the individual would have arisen. The resources issue would have to be considered at the assessment stage. But that consequence serves to reinforce my view of the need to confine the words of section 2 so that it does not create a form of parallel or substitute national health service, enforceable by individuals against the social services authority.

[91]Next, if the care had fallen within the scope of sections 2 and 28A of the CSDPA, and following Spink had to be regarded as provided under the Children Act, the question of the application of section 27 of that Act and the duty on HPCT to co-operate would have arisen.

[92]Mr Bowen submitted that LBH had made a request for help which required to be considered by the HPCT. This was made on 1 February 2005. There was no evidence, submitted Mr Presland and Mr Bowen, that meeting the request would be incompatible with the PCT’s duties or unduly prejudicial to their performance. It must be borne in mind that this ground was raised very late in the day by amendment to the Claimant’s grounds and that the scope for evidence in reply was very limited. It was not the subject of any separate judicial review claim by the LBH.

[93]The fact, submitted Mr Bowen, that the HPCT might provide those services did not remove the obligation on LBH to do so, whether or not a request for co-operation had been made under section 27 Children Act. A refusal to co-operate did not remove the obligation on LBH either.

[94]Mr Presland supported Mr Bowen’s submissions as to the effect of section 27 of the 1989 Act, the duty to co-operate. It was not possible for the HPCT to say that the provision of a further ten hours care would unduly prejudice its functions and the provision of twenty hours showed that it accepted that that provision was part of its statutory duties. It was not open to the HPCT to say that it would not do what it ought to do, because the local authority was there to fill the gap. Social services authorities were not there to fill gaps in other social provision e.g. in housing legislation.

[95]Ms Haynes submitted that on the assumption that the LBH had a power or duty to act under the CSDPA or the 1970 Act, there was nonetheless no justification for the use of section 27 of the 1970 Act here. It was wrongly being used by the LBH to impose its assessment of needs as a duty on the HPCT when there was no duty on it at all. In seeking to impose the social services duty on the HPCT, it was doing what Lord Templeman had rejected as permissible in R v Northavon DC ex parte Smith

[1994] 2 AC 402

. The HPCT was entitled to reject the LBH assessment of what was needed. Section 27 did not permit one authority to compel another to do something which it did not think was necessary. That would be an example of action which would be beyond the scope of its functions and would unduly prejudice its functions. But it had not had the opportunity to put in more specific material on those issues.

[96]I do not consider that section 27 of the Children Act advances these proceedings. First, the obvious Claimant in any such proceedings is the requesting authority. LBH has brought no proceedings and the issue cannot be regarded as adequately raised in order for a considered defence fairly to be prepared by HPCT.

[97]Second, I do not at present see the basis upon which D or her mother could claim that section 27 gave rise to any duty owed to them. If there is a power or duty, directly enforceable or otherwise on LBH to provide the services at issue, the fact that it could seek the assistance of another authority neither diminishes nor extinguishes the extent of the duty owed by LBH to D or her mother.

[98]Third, Section 27 cannot be used by social services authorities to evade those responsibilities and to compel other authorities to do what they do not consider to be their duty, as the Northavon DC case shows very clearly. On the necessary premise, contended for by Mr Bowen, that LBH had the power or duty to provide the services at issue, I find it difficult to see how the request does not fall foul of those strictures.

[99]Some weight was placed upon the language of Lord Templeman in Northavon DC at p410 G-H:

“In the event the housing authority were able, without in their view unduly prejudicing the discharge of any of their functions, to co-operate in arrangements whereby the children of Mr Smith did not suffer from lack of accommodation. The social services authority are responsible for children and the housing authority are responsible for housing. The two authorities must co-operate. Judicial review is not the way to obtain co-operation. The court cannot decide what form co-operation should take. Both forms of authority have difficult tasks which are of great importance and for which they may feel their resources are not wholly adequate. The authorities must together do the best they can.”

[100]It was suggested that those remarks were intended to preclude the existence of an enforceable duty. I do not see them as doing so. The Act clearly imposes a duty to co-operate which is subject to the twin negative requirements of incompatibility and undue prejudice. Plainly the duty requires the request to be considered and the statutory language imports a very substantial measure of judgement for the receiving authority as to how it assesses the request and responds to it. But it is still a duty which can be enforced by action. What Lord Templeman’s remarks were addressed to was the difficulty in the way of legal action being effective in achieving the necessary co-operation, by its very nature; it incites opposition and entrenched and inflexible positions rather than the goodwill which is necessary to make such provisions work effectively. His costs remarks emphasise that. But that is not to say that there is no enforceable duty, and even less so, no duty to consider the request by reference to the statutory requirements.

[101]Fourth, if as a matter of construction of the NHS Act any duty owed by the HPCT is only a target duty, and has not become a specific duty by reason of the IPCT assessment or the ECHR, there is an obvious conflict between the effect of the qualifications in the Children Act to the duty to co-operate and the consequences of the duties urged by Mr Bowen. It seems to me that there would be a conflict between the HPCT duties or undue prejudice to the discharge of its functions if the making of the request were to transform a target duty into a specific duty.

[102]Fifth, the reality is that, enforceable at law though the duty to co-operate is, the evidence required to show that it has been breached taking the Claimant’s case at it highest and in the light of Northavon, is much clearer and more cogent than is the case here.

[103]Accordingly, the Claimants do not succeed in their claim against LBH, or through LBH against HPCT. So I turn to the claim made directly against HPCT by D.

[104]Section 1 and 3 NHSA, Mr Bowen accepted, provided only for a target duty, or something to be aimed at. But in the light of the submissions as to the effect of the HRA and of the assessment by the IPCT and HPCT, it is worth only pointing out here what the Court of Appeal said in Coughlan: section 1 did not require the provision of a comprehensive health service but only the continued promotion of one. Section 3 did not require the meeting of all nursing requirements but only those which in the exercise of the SSH’s judgment he considered reasonably required or necessary to meet a reasonable requirement. For those purposes he was entitled to take into account the resources available to him and the competing demands on those resources. Those sections did not impose a duty which an individual could directly enforce in relation to his asserted treatment needs.

[105]So far as the HPCT was concerned, as Mr Bowen’s argument developed, whether or not the LBH was precluded by section 49 from providing the relevant nursing care and whether or not LBH was in breach of its duties, there were circumstances in which what would otherwise be the target duty on the HPCT could crystallise into a specific duty. It was also possible that there might be different considerations which applied to nursing by night, which could be the obligation of LBH, and nursery care which could be for the HPCT.

[106]Mr Bowen, with the support of Mr Presland, contended that a positive duty arose on the HPCT to provide the nursing care by virtue of Articles 2, 3 and 8 of the ECHR. The absence of such care would pose a risk to the life and physical health of D. It would also interfere with her personal integrity and development and indeed it would interfere with her mother’s right under Article 8 to a personal and private life because of the inhibitions which the lack of respite care for her would impose on the development of her life. There was also a positive obligation on HPCT to provide these services derived from Article 2 of Protocol 1, which concerns the right to education. These all caused the target duty under Sections 1 and 3 NHS Act 1977 to become a specific duty. Also section 6 HRA 1998, which makes it unlawful for a public authority such as the HPCT to act in a way which is incompatible with Convention rights, and section 27 Children Act 1989 created a specific duty arising from the same considerations.

[107]Article 2 was engaged because there was a real and immediate risk of death if there were inadequate nursing care, of which the state through HPCT knew, so that there was an obligation to take reasonable though not impossible or disproportionate steps to prevent it, through the provision of sufficient nursing care. Necessary treatment was not an undue burden.

[108]Mr Bowen referred to Osman v UK 28 October 1998 ECtHR, a case arising out of rather different circumstances: the positive obligation on the state in certain circumstances to take operational measures to protect an individual whose life is at risk from the criminal acts of a third person. The ECtHR recognised that that obligation could not be interpreted so as to impose an impossible or disproportionate burden on authorities. The passages which Mr Bowen relied on by analogy in this case are at paragraph 116:

“It must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid the risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case.”

[109]Article 8 was engaged because D’s mother was trained but only had one and now two nights unbroken sleep a week; she risked exhaustion, or sleeping through her daughter’s travails or being too tired to do what was necessary. It was also engaged because of D’s right to social contact at nursery and her need for it because of her disfigurement. D’s mother herself was entitled to get out of the house and develop a life of her own including a social life. There could be positive obligations on the state to take steps to secure respect for the rights in Article 8; the necessary special link between the situation complained of and the particular needs of the individual existed on the facts here. The HPCT was in breach of that positive obligation in not providing the services sought.

[110]On the relationship of medical treatment and care to Article 8, Mr Bowen referred to Sentges v Netherlands, an ECtHR admissibility decision of 8 July 2003, which concerned whether the health insurance company’s denial of a robotic arm for someone who was severely disabled and for whom such an arm would have greatly increased his independence, held that Article 8 could not be considered applicable every time an individual’s life was disrupted but only in exceptional circumstances where the state’s failure to adopt measures interfered with an Article 8 right because of a special link between the inaction and the needs of the individual. Even then a fair balance had to be struck between the competing demands of the community as a whole and those of the individual. A particularly wide margin of appreciation was due where the issues involved an assessment of competing priorities for a limited state resource. The refusal was within that margin and the complaint was inadmissible as manifestly unfounded.

[111]In an admissibility decision of 4 January 2005, Pentiacova v Moldova, Article 2 and Article 8 were raised on behalf of patients who needed kidney dialysis and complained that they had to pay for it and that there were inadequate facilities. The ECtHR accepted that in principle there could be circumstances in which the lack of public funding could engage Article 8, but in addition to the wide margin of appreciation, it looked at what the complainants did receive and concluded that there had been no failure of any positive Article 8 obligations. It also accepted that it could not be said that Article 2 was necessarily excluded from decisions in the field of health care policy, or where an individual was denied health care which was made generally available to the general population. But because renal failure was a disease with a high risk of mortality, death did not in itself prove any shortcomings in the medical care system. There was no evidence that any specific lack of drugs or treatment had caused any deaths. The complaint was manifestly ill-founded under both Articles.

[112]I did not find Storck v Germany 16 June 2005 to be of any further assistance in the issues, nor Van Kuck v Germany

[2003] 37 EHRR 973

[113]I was also referred to the decision of Munby J in R(A and B) v East Sussex County Council and the Disability Rights Commission (No2),

[2003] EWHC Admin 167

, 6 CCLR June 2003 which concerned the prohibition which the local authority had placed on the manual lifting of two profoundly disabled young adults, because of the health and safety needs of the lifters. Munby J said that the Article 8 rights of the two disabled adults were engaged, which required particular care and emphasis precisely because of their extensive disabilities and the impact which that had upon their human dignity. He cited extensively from the Commission opinion in Botta v Italy

[1998] 26 EHRR 241

delivered by Mr Bratza, who after acknowledging that Article 8 might impose positive obligations on the state in certain circumstances, said:

“Such positive obligations may exceptionally arise in the case of the handicapped in order to ensure that they are not deprived of the possibility of developing social relations with others and thereby developing their own personalities. In this regard, the Commission observes that there is no water-tight division separating the sphere of social and economic rights from the field covered by the Convention. In the case of the physically handicapped, the above-mentioned positive obligations require appropriate measures to be taken, to the greatest extent feasible, to ensure that they have access to essential economic and social activities and to an appropriate range of recreational and cultural activities.”

[114]I was also referred to R v North West Lancashire Health Authority ex p A

[2000] 1WLR 977

in which a transsexual sought to challenge the refusal of the health authority to fund gender reassignment surgery. Auld LJ said at p 991D:

“As illustrated in the Cambridge Health Authority case [1999] 1 WLR 898 and Coughlan’s case [2001] QB 213, it is an unhappy but unavoidable feature of state funded health care that regional health authorities have to establish certain priorities in funding different treatments from their finite resources. It is natural that each authority, in establishing its own priorities, will give greater priority to life-threatening and other grave illnesses than to others obviously less demanding of medical intervention. The precise allocation and weighting of priorities is clearly a matter of judgment for each authority, keeping well in mind its statutory obligations to meet the reasonable requirements of all those within its area for which it is responsible… However, in establishing priorities – comparing the respective needs of patients suffering from different illnesses and determining the respective strengths of their claims to treatment – it is vital for an authority: (1) accurately to assess the nature and seriousness of each type of illness; (2) to determine the effectiveness of various forms of treatment for it; and (3) to give proper effect to that assessment and that determination in the formulation and individual application of its policy.”

At p 995G he said :

“Article 8 imposes no positive obligations to provide treatment,” and at p 996C approved this observation of Hidden J at first instance: “The Convention does not give the applicants rights to free healthcare in general or to gender reassignment surgery in particular. Even if the applicants had such a right it would be qualified by the authority’s right to determine healthcare priorities in the light of its limited resources.”

At p 995G he said :

“The Convention does not give the applicants rights to free healthcare in general or to gender reassignment surgery in particular. Even if the applicants had such a right it would be qualified by the authority’s right to determine healthcare priorities in the light of its limited resources.”

[115]At p 997 A Buxton LJ said: “A number of propositions are clearly established, mainly by the decision of this court in R v Cambridge Health Authority ex p B

[1995] 1 WLR 898

. They are 1. A health authority can legitimately, indeed must, make choices between the various claims on its budget when, as will usually be the case, it does not have sufficient funds to meet all of those claims. 2. In making those decisions the authority can legitimately take into account a wide range of considerations, including the proven success or otherwise of the proposed treatment; the seriousness of the condition that the treatment is intended to relieve; and the cost of that treatment. 3. The court cannot substitute its decision for that of the authority, either in respect of the medical judgments that the authority makes, or in respect of its view of priorities. I further agree with Mr Pannick’s submission that it follows from the foregoing propositions that a health authority can in the course of performing these functions determine that it will provide no treatment at all for a particular condition, even if the condition is medically recognised as an illness requiring intervention that is categorised as medical and curative, rather than merely cosmetic or a matter of convenience or lifestyle. In all of this, the court’s only role is to require that such decisions are taken in accordance with equally well known principles of public law. Those principles include a requirement that the decisions are rationally based upon a proper consideration of the facts. The more important the interest of the citizen that the decision affects, the greater will be the degree of consideration that is required of the decision-maker. A decision that, as is the evidence in this case, seriously affects the citizen’s health will require substantial consideration, and be subject to careful scrutiny by the court as to its rationality.

[116]Buxton LJ at p 1001E said this:

“…it is plain that in this case there has occurred no interference with either the applicants’ private life or with their sexuality. The ECHR jurisprudence demonstrates that a state can be guilty of such interference simply by inaction, though the cases in which that has been found do not seem to go beyond an obligation to adopt measures to prevent serious infractions of private or family life by subjects of the state … Such an interference could hardly be founded on a refusal to fund medical treatment.”

[117]As to Article 3, Auld LJ explained why it was of no assistance at p 996A:

“As Mr Pannick observed, if the applicants have no case under article 8 of failure to respect their private and family life, they could not, a fortiori, establish that they were victims of inhuman or degrading treatment under article 3 since the same essential issues arise: see Olsson v Sweden (1988) 11 EHRR 259, 292, paras 85-87. And, as he also observed, a breach of the article requires “a particular level” of severity which, of course depends on the circumstances of the case. It is plain, in my view, that article 3 was not designed for circumstances of this sort of case where the challenge is as to a health authority’s allocation of finite funds between competing demands.”

[118]Buxton LJ at 1000G said this:

“Article 3 of the ECHR addresses positive conduct by public officials of a high degree of seriousness and opprobrium. It has never been applied to merely policy decisions on the allocation of resources, such as the present case is concerned with. That is clear not only from the terms of article 3 itself, and the lack of any suggestion in any of the authorities that it could apply in a case even remotely like the present, but also from the explanation of the reach of article 3 that has been given by the Convention organs.”

[119]If it had not carried out a proper assessment, the HPCT could not respond to an assertion of a Convention breach by saying that it had struck a proper balance within the ECHR. In a very different context, Hatton v UK ECtHR 8 July 2003 showed that in order to gain the benefit of the margin of appreciation, the domestic government had to assess the conflicting factors carefully before reaching the conclusion which it wished to see upheld. The key factors had to be considered and based on evidence.

[120]There was a gap between what the HPCT, through the IPCT, had assessed as the Claimant’s needs and what it was providing. Accordingly the HPCT was in breach of its duty to fund the additional ten hours night nursing care so as to enable the mother to have at least two full nights care, in addition to day care. In any event, HPCT had applied a blanket policy of providing no more than twenty hours nursing care. The need for day care had been ignored, as had the IPCT assessment.

[121]Alternatively, the HPCT’s reasoning, as to why the IPCT assessment was not being applied, was inadequate. The inconsistent and unsatisfactory explanations offered at various stages by the HPCT as to how the IPCT assessment came into being, meant that what its witnesses had to say about it should be discounted to a very large extent, if not totally. There was no ambiguity about it as HPCT witnesses had claimed, and it seemed very strange that such an assessment should have been asked for simply to see what IPCT could provide if its services were to be engaged by HPCT, as was now being said. There was no sound evidential basis for saying that the assessment had not been asked for by the HPCT in order to assess D’s needs. In support, Mr Bowen drew attention to the history of the care provided and required, including the fact that on discharge from hospital in April 2003, D had been assessed as requiring four nights respite care a week but had never received that and it had been reduced without explanation. The increase from sixteen hours to twenty hours was not in reality an extra because that merely reflected the usual length of a night shift for other reasons. Two incidents in 2003 showed there to be insufficient respite care and Dr Meates had supported that view in August 2003, as later had Ms Macdonald. LBH had also assessed the requirements in its Core Plan of 10 January 2005, and the HPCT rejection of the further ten hours failed to grapple with the issues.

[122]Mr Presland supported Mr Bowen’s submissions about the extent of agreement between the IPCT assessment and the Claimant’s own medical advisers as to what was needed and about the absence of any asserted ambiguity in what IPCT meant when it referred to “3-4 nights, 10 hours a week” of trained carer support.

[123]One further element which was argued by the Claimants to show that such a duty arose was the assessment of needs by the IPCT made on behalf of the HPCT. R v Avon County Council ex p M

[1994] 2 FLR 1006

, Henry J, was cited as showing that if the HPCT wished to go behind that assessment seemingly made on its behalf, it had to have and provide substantial reasons for doing so which showed that sufficient weight had been given to it. IPCT had been asked to deal with the assessment; it had done so carefully and had dealt with reasons with the relevant issues. There was no basis, let alone one of sufficient strength, for HPCT to ignore or set aside its conclusions.

[124]However, I note that that case was decided in the context of a specific statutory provision for the independent review of social service committee decisions. Although that reviewing Panel could only make recommendations to the committee, its very purpose shows that its recommendations could not be rejected without substantial and sound reason being given. That is not to say that the underlying point is without some force, in my view, if the IPCT were in fact asked to make the assessment for HPCT.

[125]Ms Haynes contended that no specific duty had arisen; the duties were only target duties. She took issue with the claim that it had applied a rigid policy in relation to the extra ten hours, but opposed the amendment being granted because of the need to file evidence.

[126]On the facts, Ms Haynes submitted that the IPCT assessment did not constitute the HPCT assessment of D’s needs. Mrs Webster, who is Head of Complex Needs at the HPCT, said in her first Witness Statement that she thought that the IPCT assessment was part of forward planning for new children’s services, rather than being specific to D’s care planning. IPCT’s Children’s team did not dissent from the level of provision currently being made. IPCT also had greater resources than HPCT for nursery assistance and had a complement of people trained to offer the nursery care needed by D for a few hours each day, but had a lower benchmark for night respite care. In a second statement served during the hearing to deal with the amendment and matters which had arisen during the hearing, Mrs Webster said that she did not make assessments of needs but decided what provision could be made by the HPCT, if necessary by buying in services from another PCT. She drew on what she was advised by Mrs Davies. She had not been involved in obtaining the IPCT assessment, but she was aware that when reviewing the provision of services for children, the possibility of buying services in from IPCT was considered and it was in that context that an assessment of the needs of complex children such as D had been sought. That would have formed the basis of the provision of services by IPCT had they been bought in from it. But it was not a HPCT assessment nor was it sought for the purpose of assessing what D needed.

[127]Mrs Webster also said that the twenty seven hours a week had been made available since December 2004 or January 2005. They could also be carried over from week to week. She named two schools at which the necessary tracheostomy care was available but Mr Presland said that the mother had not wanted to unsettle D by moving her when fellow pupils had got used to her and she to them. One had a trained carer provided by the local PCT who was attached to a particular individual. The other was a special school with joint provision by health, social services and education.

[128]Mrs Webster was of the view, knowing the views of Mrs Davies, that the decisions which she had made as to the level of respite care provided by the HPCT to D and her mother were reasonable in the circumstances and in the light of resources.

[129]Mrs Davies, the Specialist Health Visitor for Children with Special Needs at the HPCT who was familiar with D, remained of the view that twenty hours was sufficient, especially if fortified by the extra seven hours a week which the Claimant could call on even if T did not come home. It had performed its duty and the provision made was a rational exercise of the general duty on the HPCT, necessarily informed by its awareness of its limited resources and competing demands. It was for D’s mother to decide if she wanted to use the twenty hours provided other than for night respite care. The HPCT had provided enough for her to have two uninterrupted nights’ sleep a week which is what she wanted. Mrs Davies recognised the need for care at the nursery which would be able to react quickly to an emergency, thought that there might be other nurseries which could provide for that, but essentially saw it as the mother’s responsibility to ensure attendance at nursery. She accepted that a multi-agency approach was required.

[130]Mrs Webster rejected the assertion that the HPCT had been rigid in its approach to D’s needs. The provision of twenty hours as a benchmark was no more than a starting point. This was the normal provision so that the carer could have two nights respite and sleep. Mrs Davies did not think that more was necessary but Mrs Webster had allocated a further seven hours a week to allow for the particular problems created by visits from T. Although the further six hours for nursery care had been allocated and continued unwillingly, it had not ultimately been resisted and that also showed a lack of rigidity. The provision could not be met anyway without buying in services from agencies. She also pointed out that D’s needs had changed over time and that material from 2003 was out of date. The tracheostomy was now well-established and D was obviously older, more active and in less need of tube clearance by a trained carer.

[131]Ms Haynes suggested that the combined effect of the submissions of Mr Bowen and Mr Presland would amount to the setting up of a system of needs assessment in parallel to that created by the 1989 Act and the 1970 Act, coupled with a duty on the NHS to provide what had been assessed. There was no statutory justification for that.

[132]This was not a case in which the HPCT was refusing to provide life-saving treatment; it was dealing with respite care for the primary carer delivered in such a way that D was safe. It could not sensibly be said that anything less than three or four nights care could constitute an infringement of D’s rights under Articles 2 or 3 ECHR, but twenty hours, which the mother could take as two nights care if she chose, was such a breach. In reality Article 2 was not engaged and the considerations in Osman did not arise. To the extent that Articles 2, 3 or 8 engaged positive obligations on the state, those were met by the provision which was actually made. The HPCT was to be accorded a wide margin for its judgments in this area.

[133]I do not accept that the refusal of HPCT to provide the disputed care amounts to a breach of Articles 2 or 3 or 8 ECHR. The first two go together and the emphasis of Mr Bowen on the rapidity with which a potentially fatal emergency can arise puts the argument more on the basis of Article 2. The NHS has provided the life-saving initial treatment; it has trained the mother in the relevant care. The continuing medical care provided by the HPCT at twenty hours per week, to be taken in two shifts by day or night as the mother chooses, provides a significant cover for the child to prevent the mother’s fatigue endangering the child. I do not see it as essentially a social service provision as I have explained but it gives a reasonable respite as well to the mother. I also take into account the additional seven hours per week, which though intended to protect D so that the mother can look after T, is available whether needed for T or not. Whether it has or has not been provided in the past and whatever misunderstandings there may have been, the HPCT’s position clearly is that it is available. As Ms Haynes submitted, it is not rational to contend that the provision of twenty seven hours per week nursing care involves a breach of Articles 2 and 3, whereas a further ten (or possibly eight) would obviate a breach. The facts do not permit so stark a line to be drawn. What HPCT propose is manifestly sufficient to avoid a breach of Article 2.

[134]The Osman case presented much stronger features in terms of the source and nature of the risk, and the measures available to the victim and provided by the State than does this case. Pentiacova v Moldova requires real caution in the application of Article 2 to issues of health care treatment and the apportionment of resources among many whose lives to some degree or other may be threatened or blighted by a medical condition. Here, operations to reduce the blockage and provide alternative means of breaching have been undertaken; the mother has been trained in nursing care and a significant amount of protective cover in respite care provided. The State’s positive obligations, to the extent that they are engaged, are met by the provision made.

[135]As for Article 8 and Article 2 Protocol 1, whilst I accept that they could be engaged both for the mother, in her social and personal life, and D, in her personal, social and educational development, I do not consider that the level of nursing care provided breaches the qualified rights in Article 8 or, yet, the right to education. Both Sentges and Pantiacova show the wide margin of discretion afforded to states; the NHS Act target duties reflect that. They embody a wide margin for the judgment of statutory bodies charged with the allocation of resources to competing priorities, many of which could be said to engage Article 8(1). Both were admissibility decisions rejecting the existence of even an arguable claim.

[136]I do not see the impact on the mother’s personal life (assuming her to be a Claimant) as sufficient to show that the discretionary area of judgment accorded to HPCT has been exceeded. The same applies to D’s personal and educational development. Taking the HPCT decision to be the stance which it has adopted here and, and putting to one side for the moment the arguments about the IPCT assessment and the inflexibility of the HPCT, there is no evidence which suggests that the resources which it is prepared to allocate to D or her mother represent an impermissible exercise of its judgment. It is not suggested that the treatment is out of line with other cases in its area, or that there are resources which are unused or which should obviously be switched from other areas. The argument is rather that it has been too inflexible. But there have not been shown to be any particular feature of D’s condition or of her mother’s circumstances to which HPCT has attached obviously too little significance.

[137]Mr Bowen argued that it would not be possible to satisfy the balancing requirements of Article 8, nor to obtain the benefit of the wide margin of discretionary judgment if there had been no proper assessment of the Claimants’ needs; still less would that be possible if there had been an assessment which showed that more was required.

[138]I would not take issue with the general point that a balancing judgment is required, looking at the relevant factors, if the qualifying factors in Article 8(2) are to be relied on, along with the area of judgment afforded to such a decision. But I consider that Ms Haynes is right to point to the absence of a statutory scheme of assessment for NHS services parallel to that in the Children Act. It is not for an LBH assessment to dictate how the HPCT allocates its resources. Nor does such a process have to be undertaken in order for the exercise of the powers and performance of the target duties under the NHS Act to comply with the ECHR.

[139]It is plain from the HPCT evidence that it has considered what is necessary for these Claimants now in the light of their needs and its resources and has reached a view. This view is expressed in the evidence of Mrs Webster and Mrs Davies. There is a properly balanced decision. It satisfies the tests in North West Lancashire Health Authority. Botta has to be seen in the context of the facts of that case, which were not concerned with the allocation of medical resources. The East Sussex CC case arises from yet another different problem, the conflict between needs or rights of the disabled and the protection of the health of workers. It does not really advance matters here. For the reasons given in the North West Lancashire Health Authority case, I do not consider Article 3 to be of assistance to the Claimants.

[140]I received further submissions in August 2005 from the Claimants and LBH after the decision of the Court of Appeal in R(Burke) v GMC [2205] EWCA Civ 1003, the potential relevance of which had been foreshadowed in argument. In the end, both sets of submissions agreed that it did not advance either of their arguments to any marked extent. The factual circumstances are not comparable. In so far as there is a positive duty, owed to someone outside a hospital, to take reasonable steps to keep a patient alive, that duty is being fulfilled.

[141]The next attack upon it is that that is not in fact the relevant assessment; the relevant assessment is that made by the IPCT, by which the HPCT is bound. This is a misconception. Whether or not the request for an assessment was a delegation of the function of making a balanced judgment as the Claimants contend, or a request for information as to how IPCT would assess needs or provide resources were its services to be called on, as the HPCT more obscurely contends, the relevant judgment is that which HPCT has made and relies on for the purposes of this case. If HPCT is providing the resources, it is entitled to decide how they should be used. Even if it had in reality delegated the task of making a judgment to IPCT it is still entitled to reach its own view later and to be judged by that later and different view. The Claimants cannot say that HPCT is bound in law by the IPCT view to provide what emerged. Indeed, although the HPCT position is obscurely expressed, one feature is clear: it did not intend to delegate the task of deciding how to allocate HPCT resources to IPCT.

[142]I accept that the ECHR obligations may cause a target duty to crystallise into a specific duty, or indeed create duties directly, but very considerable caution is needed before holding that to have happened in any individual case, as the authorities cited by Mr Bowen and the North West Lancashire Health Authority case show. In judging whether or not any target duty has crystallised into a specific duty, whether or not through the effect of Articles 2, 3 and 8 ECHR, and in judging whether or not any decision falls within the discretionary are afforded to the HPCT, Mr Bowen is entitled to point to the range of views expressed about what is necessary, including those of the IPCT, whatever it was that brought them into existence. However, I do not accept that it is incumbent on HPCT to provide a form of reasoned opinion dealing with each of those in order for its judgment to fall within the margin afforded to it. I have already explained why R v Avon County Council ex p M is not authority for that. To require such an opinion would be to create too high a degree of legal formality and to put an onus on HPCT to refute other views. What matters in the light of the number and significance of those who argue for more provision is that the HPCT contrary view be reasoned, and that in striking its balance it has considered the relevant individual circumstances as well as any benchmark or policy. It does not have to take the contrary opinions and refute them in sequence as if in response to a pleading.

[143]The HPCT evidence does show that it has reached a reasoned view. It cannot be stigmatised as irrational. Nor does it fall outside any narrower range of permissible responses, though others without the responsibility of resource allocation can disagree legitimately. As I have said, no factor of significance for the condition or circumstances of D or her mother has been identified and shown to have been overlooked. I am far from sure as well that those who argue for greater care provision, whether Claimant, advocate or expert, had in fact appreciated that HPCT was offering not just 7 hours a week for a visit by T, but 7 hours a week, whether T came or not. The hours can also be carried forward.

[144]I reject the inflexibility argument on the facts. True it is that there is a benchmark of twenty hours care and that is what was offered and provided by HPCT originally. That could not of itself show that the benchmark had been applied inflexibly. However, there is a particular feature here which affects the mother and hence D over and above that which would apply to the general run of tracheostomy cases and that is the condition of T. Yet there has been, however muddled in its inception or initial practice, specific provision for that in the 7 hours a week extra. But I do not attach the weight which Ms Haynes suggested to the interim provision of nursery care. That was done because of indications by the Court rather than wholly in the full exercise of judgment. Overall however I do not consider that the argument that inflexibility has caused relevant factors to be overlooked is made out.

[145]However, for the reasons which I have given, I do not consider that LBH has any relevant power or is in breach of any duty. HPCT has the relevant power and target duties, but no specific duties have crystallised, and it has not acted unlawfully in deciding on the care which it provides. I add that as compulsory school age nears, the considerations attaching to any decision on that will need to be re-examined.

[146]This part of the proceedings therefore leads to no relief. I will hear Counsel as to what form of Order is appropriate.

T & Ors, R (on the application of) v London Borough of Haringey [2005] EWHC 2235 (Admin)

Conclusion

Cited in 6 later judgments