H & Anor v A City Council & Anor [2010] EWHC 466 (Admin)

2010] EWHC 466 (Admin)Case No CO/13078/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT SITTING AT LEEDS
Venue Leeds Combined Court Centre
The Court House
1 Oxford Row
Venue Leeds LS1 3BGDate 12 March 2010
Before
His Honour Judge Langan QC
Between
H and LClaimantA City CouncilDefendantB City CouncilInterested Party
Mr Stephen Cragg (instructed by Howells, Solicitors) for claimantsMr Timothy Pitt-Payne (instructed by Legal Services of A Council) for defendantThe interested party did not take part in the hearingHearing Hearing date: 12 February 2010
JUDGMENT
[1]Because of the subject-matter of these proceedings, the claimants and the two local authorities who have been concerned with them will be referred to without reference to their respective surnames or official designations. I call them H, L, ACC and BCC.[2]H is a convicted sex offender. L is his partner. She has no convictions. Both are disabled and have been active in the disability movement. They live in the area for which ACC is the local authority with functions relating to the safeguarding of children. BCC, as will appear later in this judgment, is the local authority for another area, and plays no more than a peripheral role in the story. Both H and L employ personal assistants, and receive from ACC direct payments to fund the wages of these carers.[3]In this litigation, H and L challenge three decisions or groups of decisions made by ACC. These are:(1) decisions made in the summer of 2009 to notify organisations with which H and L are connected;(2) a decision as to the policy to be followed in the future regarding disclosure to organisations and to personal assistants, such decision being contained in a letter dated 21 October 2009 (‘the decision letter’); and(3) a decision to pay the wages of the personal assistants through a managed pay-roll account, such decision also being contained in the decision letter. These decisions are challenged on different grounds. Decisions (1) and (2) are attacked as being both unlawful at common law and as constituting an undue interference with the right of H and L to respect for their private life under article 8 of the European Convention on Human Rights. Decision (3) is challenged on the same grounds, and is additionally said to be said to be contrary to the right of H and L to receive direct payments under the relevant legislation.[4]These proceedings were commenced on 5 November 2009. Permission to proceed with judicial review was granted by His Honour Judge Behrens on 8 December 2010. It has been agreed that any issue as to damages for breach of the claimants’ article 8 rights should, if such breach is established, be left to a future hearing. My understanding is that no point as to the time limit for applying for judicial review has been taken with regard to the disclosures made in the summer of 2009. The challenges made to the decision letter have plainly been made well within the time limit.[5]H and L were represented before me by Mr Stephen Cragg. ACC was represented by Mr Timothy Pitt-Payne. I am grateful to them both for their helpful written and oral submissions. BCC has not adopted an active role in the proceedings.

Narrative

[6]H and L are both very severely disabled. They have been in a relationship since 1992. It is not necessary for the purposes of this judgment, and would be undesirable having regard to the need for anonymity, to set out particulars of their respective problems. Both H and L have been assessed as having substantial needs under the Fair Access to Care Services eligibility framework for adult social care. Both receive weekly direct payments, which they use to employ personal assistants. H has two male personal assistants, both of whom have been in his employment for several years: neither of these carers has children. L has a female personal assistant who is at present on maternity leave: the woman who is replacing that personal assistant over the leave period does not have children.[7]H and L have for many years been active in the disability movement. I think that it can fairly be said that their involvement has had a twofold nature, being both philanthropic and economic. It is philanthropic in that they, or at any rate H, belong or have belonged to a number of representative or consultative bodies dealing with disability issues. It is economic, in that H and L run a company which has sought and obtained contracts from universities and other public bodies.[8]In 1993 H was convicted of indecent assault on a seven-year old boy. The information which has been provided by ACC, and which is not disputed by H and L, is that the boy was blind, that he was a member of a family which H had befriended, and that the offence was a penetrative one which involved oral sex. H denied the charge, but was found guilty and was sentenced to two years imprisonment. He has maintained to this day that he was the victim of a miscarriage of justice, and L concurs in this view.[9]The fact of H’s conviction came to the attention of ACC(1) in 1994, when HM Prison Service notified ACC that H was going to live with his sister in the city of A after his release from prison;(2) in 2001, when another local authority informed ACC that H had applied for a post in the Social Services Department of that other authority and that he had given an address in A; and(3) in 2008, when a an officer in the Sensory Impairment Team of ACC notified ACC’s Safeguarding Children Service that there was a warning entered against H’s name in ACC’s electronic social care record. It seems that no action was taken on any of these occasions, apart from the correction of an erroneous identification number assigned to H in the computer record.[10]B is a city some 200 miles froma. A. On 25 March 2009 a senior officer of BCC wrote to the Director of Children and Young People’s Service at ACC, with the following information.(1) H had been convicted of a sexual assault on a child in 1993 and was facing trial in June 2009 for a similar offence.(2) H was employed as chief executive of a disability charity inb. B.(3) He was commuting from A to B and spent two days a week in B, working for the charity on one further day a week from his home back in A.(4) The charity had employed H with full knowledge of his conviction and, although they were aware of his forthcoming trial, they had refused to suspend him.(5) BCC was making a barring referral to the Independent Safeguarding Authority and a referral to the Charity Commission.[11]On or shortly before 16 April 2009 H was suspended by the Charity Commission from his position with the charity in B.[12]X is a council officer at ACC and was responsible for gathering information about H following the receipt of the letter from BCC and for co-ordinating decision-making within a multi-disciplinary framework. X convened a strategy meeting in A for 17 April 2009. Before that meeting took place, X discovered that H had a further conviction, for failing to disclose his 1993 conviction when applying for a job.[13]The purpose of the strategy meeting was to develop a better understanding of H’s activities in A and to develop an action plan for further investigation. The meeting was attended by representatives of different departments within ACC, the National Health Service, the police, and one of the local universities. It became evident at the meeting that H was a member of a number of organisations and committees concerned with disabled people, that he ran his own company with L, and that he received social work students on placement from the university. Bearing in mind the need to frame this judgment in anonymous terms, I do not propose to give further details of H’s work, save to say that one connection which gave particular concern was with a body for failed asylum-seekers with disabilities. The recommendation given by X to the meeting was that H be asked to stand down from all bodies that “he is involved with immediately given that his level of denial of his serious offence makes him a highly untrustworthy individual. Should he refuse to stand down then legal advice to be sought and consideration be given to seeking an injunction.” X “highlighted the moral legal position and the obligation to fulfil a duty to safeguard children and the sharing of information was justified in protecting those children.”[14]Another strategy meeting was arranged for 15 June 2009. In the course of preparing for that meeting, ACC communicated, by way of short telephone calls, with some nine organisations with which H was believed to have connections. No notes of the telephone calls were kept, but it appears from the evidence of X that the purpose of each call was to clarify H’s role within the relevant organisation and to alert the organisation to the fact of the 1993 conviction and to “the potential for future convictions.”[15]In the meantime, on 20 May 2009, there was a meeting between representatives of ACC, H, L and the solicitor acting for H and L at the time. The purpose of this meeting, from the point of view of ACC, was to highlight the concerns which ACC had in relation to the risk H was regarded as presenting to children. The ACC representatives, on the basis of information received from the body for disabled former asylum-seekers, were not satisfied that H had no contact with the children of clients, notwithstanding assurances to the contrary given by H. Much of the meeting appears to have been taken up with discussions about the personal assistants employed by H and L, the need (as perceived by ACC) for ACC to be aware of the identities of these assistants so that they could be advised not to take children when they were working for H and L, and the insistence by ACC on the eventual introduction of a managed account system for paying the assistants.[16]After the meeting of 20 May 2009, the Physical Disability and Sensory Impairment Service of ACC prepared a document entitled ‘Risk Summary.’ The writer set out the concerns of ACC arising from the 1993 conviction and highlighted the fact that H is in denial about his culpability; the possibility that the support being received by H from a particular service run by the council was contributing to his good reputation and might “better enable him to gain the trust of adults who have children”; and the opportunities for access to children which might be open to H through his work. Against this, the writer said that it was over 22 years since the date of the relevant offence, and that H had been living in A for 12 years without any concerns having been raised about his behaviour. The writer also pointed out that H and L were themselves vulnerable people, who could be at risk if information about H’s past became available to the public. The Physical Disability and Sensory Impairment Service “needs to take a proportional view while putting the needs of children first and [to] act in accordance with the advice received from legal services and the Safeguarding Children’s Service.”[17]The trial of H, which had been fixed for a date in June 2009, was adjourned.[18]H and L state that they have lost business as a result of such disclosures as have so far been made by ACC.[19]I do not think that I need examine the proceedings at the strategy meeting of 15 June 2009, nor the quite extensive communications (both by correspondence and at a meeting) between ACC and the solicitors acting for H and L which followed that meeting. The communications were inconclusive in that they did not lead to any agreement between ACC on the one hand and H and L on the other as to how the perceived risk to children might be addressed to the satisfaction of all concerned. I can go straight to 21 October 2009 and the decision letter.[20]The decision letter, which was written by ACC’s Director of Legal Services, dealt first with the issue of the personal assistants. The writer began by saying that ACC continued to view H as presenting a risk to children who were not accompanied by a responsible adult, and would need to be satisfied that personal assistants employed by H and L using direct payments were properly made aware that they must not allow their children, or enable other children, to have unsupervised contact with H. This would include contact both within and outside H’s home. The writer went on to say that ACC could not accept assurances from H that he would comply with these conditions, as it had doubts as to its ability to trust H in view of his 2000 conviction for dishonesty. Further, ACC was not satisfied that the situation could be dealt with, as had been suggested by H and L, by adding a clause (as to the personal assistants not bringing children to work) to the contracts of employment of staff.[21]The writer then set out three requirements to cater for the perceived risk.(1) Payment of personal assistants through a managed account, the company operating the account to inform ACC of the names of persons on the payroll. This would “[strike] a reasonable balance between the need for protection, as assessed, and Mr [H’s] and Ms [L’s] desire for autonomy. It will still be for Mr [H] and Ms [L] to decide which PAs they employ. The purpose of this requirement is to provide an audit trail.”(2) Provision by H and L of a letter, prepared by ACC and signed by each employee. The letter would set out the view of ACC that employees should not take their children to work, and should not allow unsupervised contact with their own or other children within a work or social context outside H’s home. This would ensure “that each employee has sufficient information to make sensible personal decisions around the protection of their [sic] children, if any.” Also, employees would thereby have seen ACC’s concerns, which they might have missed or not understood if the provisions were in their employment contracts.(3) A review of these requirements after one year.[22]The writer went on to deal with H’s “potential to come into contact with children via or as a result of the work which he undertakes.” She pointed out that ACC had yet to receive a list in which H and L set out the individuals and organisations with which they worked “and whether that brings them into contact with children.” Without such a list the council was “of the view that Mr [H] presents a risk to an unknown group and sound judgments about what should be shared with whom cannot be made.”[23]The writer repeated ACC’s request for such a list. On provision of a list, judgments would “be made on a case by case basis as to what information should be shared and with whom.” ACC would apply the following principles.(1) Disclosure would not be automatic, but would be assessed case by case.(2) Disclosure would be more likely if the work is likely to being H “into direct contact with children or where the nature of the work is likely to build [his] credibility as safe person to be around children.”(3) Disclosure would be less likely where there is no direct contact with children.[24]Following receipt of the decision letter, these proceedings were commenced.[25]H’s trial for the alleged sexual assault on a child took place in London in January and February 2010 and ended with his being found not guilty by the jury. At one time there appeared to be the prospect, or at least the possibility, of further criminal proceedings of a similar nature, but it seems that these will not now materialise.

Evidence for ACC

[26]X signed a witness statement in January 2010. After dealing with the history of the case, he addressed the following three matters.(1) His assessment of the risk posed by H.(2) The position with regard to L.(3) ACC’s conclusions.[27](1) Assessment of the risk posed by H. X said that the primary cause of risk arose out of H’s sexual interest in the child whom he had abused. H had made his acquaintance with this child through his employment and contact with the child’s parents. The abuse had occurred while H had care of the victim and the victim’s brother and thus constituted a serious breach of trust. H maintained a strong denial of the offence and had sought to obtain employment without disclosing the conviction. H was an effective advocate on behalf of disabled people, and his good reputation would lead people to believe that he could safely be employed to work with families. Although being a member of a consultative body might not provide direct access to families, it created “an aura of trust and responsibility which is ill deserved” and which in turn might enable H to win the confidence of parents and thereby to obtain access to their children.[28](2) The position in relation to L. X pointed out that, like H, L is in denial about H’s conviction. She “does not provide any protective factors and appears… at the very least not to acknowledge the safeguarding implications consequent to the conviction of her partner.”[29](3) Conclusion. ACC took the view that it was discharging its duty to ensure that risk to children is effectively managed “by disclosure to and discussion with key partners, employing organisations and relevant individuals.” The proposals set out in the decision letter were a proper response to the situation, and those relating to the personal assistants represented a proportionate approach.

Evidence for H and L

[30]Most unusually, H and L did not initially file any evidence in support of their claim. Two days before the hearing, and in response to matters contained in ACC’s counsel’s written submissions, they did produce witness statements.[31]H explained his conviction for dishonesty as having arisen from “desperation to obtain employment not as a predatory act.”[32]H said that he had not undertaken nor sought any work (paid or voluntary) that would deliberately bring him into contact with children since the date of his 1993 conviction. His company had never bid for such work, and neither he nor L had any expertise in that area.[33]H said that the support workers employed by him and by L were given an induction during which they were told that children were not allowed in the home. The reasons for this was that the home doubled as an office where meeting were held with clients and that the presence of children would be unsuitable as it would breach the privacy required for the medical treatment and assistance which L required on a daily basis. Further, H and L did not socialise with their employees out of working hour. Since September 2009, all employees had signed an amendment to their employment contracts to formalise the existing rule about not bringing children to work.[34]H expressed anxiety as to how ACC would manage or control the further spread of information once it had been passed to third parties. H said that the personal safety of himself and L has not been taken into account and that, on the basis of recent experience (there had been a poster campaign which publicised his previous convictions) he was concerned about vigilante action as a result of disclosures.[35]L stated that she had imposed on herself lifestyle restrictions which took account of H’s conviction: thus she went out of her way to ensure that she and H did not have significant contact with the children of their friends. She did not allow her support workers to bring children into her home and she did not have any contact with her staff outside of work. She did not work with children, and had deliberately chosen not to do so because of H’s conviction and her own lack of any expertise in the area.

The law on disclosure of information

[36]I was taken through the principal authorities at length.[37]So far as the common law is concerned, one must start with the decisions of the Divisional Court and of the Court of Appeal in R v Chief Constable of the North Wales Police, ex parte Thorpe [1999] QB 396. The case concerned the disclosure by the police to the owner of a caravan site of the previous convictions of a married couple who were living on the site. The convictions were for serious sexual offences against children. In the Divisional Court, the following submissions made on behalf of the Home Secretary, and set out at p.409 of the report, were endorsed by Lord Bingham of Cornhill CJ:
“(1) There is a general presumption that information should not be disclosed, such a presumption being based on a recognition of (a) the potentially serious effect on the ability of the convicted people to lead a normal life; (b) the risk of violence to such people; and (c) the risk that disclosure might drive them underground. (2) There is a strong public interest in ensuring that police are able to disclose information about offenders where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people. (3) Each case should be considered carefully on its particular facts, assessing the risk posed by the individual offender; the vulnerability of those who may be at risk; and the impact of disclosure on the offender.”
Lord Bingham emphasised that a blanket policy of disclosure would be objectionable; that decisions must be made with close regard to the facts of the individual case; and that consultation with other agencies was “a valuable safeguard against partial or ill-considered conclusions” ([1999] QB 396 at 410,411).[38]In the Court of Appeal, which affirmed the refusal of the Divisional Court to find that the policy and decision adopted by the police was unlawful, Lord Woolf MR said that “[d]isclosure should only be made when there is a pressing need for such disclosure” ([1999] QB 396 at 428). I think, with respect to the submissions made by Mr Cragg, that at times he appeared to employ the phrase “pressing need” as though it were some kind of mantra, the repetition and application of which would produce the right answer in a case of this kind. It seems to me, although the pressing need test is of general application (see Re L (Sexual Abuse:Disclosure [1998] 1 WLR 299), matters are not quite so simple: judicial review of the exercise of a discretion does not involve a search for the only answer which can be right.[39]Among the other cases to which reference was made, the most helpful appeared to me to be the decision of Dyson J in R v A Local Authority in the Midlands Area, CO 4734/98, 6 September 1999. Dyson J pointed out that the decision on disclosure or non-disclosure involved balancing the need to protect children and the safeguarding of the right of an individual to a private life. All relevant factors had to be considered. Although it was not possible to provide an exhaustive list of those factors, there were three which would usually have to be considered. “(i) [The authority’s] own belief as to the truth of the allegation… (ii) The interest of the third party in obtaining the information… (iii) The degree of risk posed by the person if disclosure is not made.”[40]Mr Cragg submitted that, just as his clients’ common law rights had been infringed by the actions, or would be infringed by the proposed actions, of ACC, so also would their article 8 Convention right to respect for their private life. Mr Pitt-Payne submitted that this was not a case in which article 8 was engaged. So far as the application of article 8 is concerned (I leave the question of breach for consideration later in this judgment), I agree with Mr Cragg. Mr Pitt-Payne’s approach simply cannot stand with the decision of the Supreme Court in R (L) v Commissioner of Police of the Metropolis [2009] 3 WLR 1056. Moreover, that case shifts the law to a position somewhat more favourable to the claimants than that which obtained under the earlier authorities. It is no longer right to assume that priority must be given to the need to protect the vulnerable over the right to respect for the private life of the individual. Where competing Convention rights are in issue, neither has precedence over the other: see paragraphs 44,45, per Lord Hope of Craighead DPSC.[41]That having been said, I am not convinced that there will be situations in which disclosure, while lawful at common law, will involve a breach of article 8; or in which disclosure is unlawful at common law but justifiable under the Convention. In any event, in the circumstances of the present case, the two systems seem to be to run in parallel. The significance of the concurrent article 8 claim is that, if it were made good, it would (as the common law claim would not) give rise to a remedy in damages.

Issue (1): Disclosures made in 2009

[42]I have had throughout Mr Cragg’s submissions on Issues(1) and(2) been forced to remind myself that the court is faced with an application for judicial review, and not with anything in the nature of an appeal on the merits. In relation to Issue (1), and in relation to Issue (2) so far as the carers are concerned, ACC might reasonably have come to conclusions other than those to which it in fact came: but that is not to say that the latter conclusions were unlawful. The test of legality is the familiar one: whether relevant considerations were ignored, or irrelevant considerations were taken into account, or the decisions reached were ones at which no reasonable authority could have arrived (or, in Convention terms, were disproportionate).[43]Mr Cragg fairly pointed out that, during the 12 years for which H had resided in A, no complaints about his conduct towards children had been made to ACC; that there was no evidence that his work brought him into contact with children (although there may have been chance contact with the children of one family through the group concerned with failed asylum-seekers); that ACC had been aware of H’s conviction for a number of years, but had taken no action; that the business interests of H and L were being put at risk by disclosure; and that H and L were vulnerable people who would or might be placed at risk of physical harm through disclosure.[44]I would not attempt to gainsay any of these points. But they have to be placed in the context in which the disclosures were made. They were made between the strategy meetings of 17 April and 15 June 2009. At the time,(1) ACC had become aware of the concerns entertained by BCC;(2) ACC had learnt for the first time of H’s conviction for dishonesty;(3) H had been committed for trial on a charge of sexual assault on a child; and(4) the wide scope of H’s (wholly legitimate and, in themselves, admirable) activities in the field of disability was becoming apparent. Mr Cragg’s essential criticism is that the disclosures were disproportionate and, having regard to the potential damage to the reputations and careers of H and L, were not properly thought through. I do not agree. The disclosures were not made to the public generally, but to nine selected organisations with which H was involved; and, on the basis of the evidence of X, the disclosures were made in a guarded fashion. It is not suggested that they were made in terms which were lurid or went beyond what was required for the purpose of making a measured communication. If one were to judge what happened by the ‘pressing need’ test, I would say that neither the decision to make disclosure nor the way in which that decision was implemented have been shown to have failed that test.

Issue (2): Future disclosure

[45]The decision letter, in so far as it relates to future disclosure, has to be considered in two aspects: disclosure in relation to individuals and organisations with which H and L work; and disclosure to their personal assistants.[46]The policy of ACC with regard to disclosure to individuals and organisations does not appear to me to raise any difficult question. Mr Cragg has understandably reiterated the risks, physical and economic, to which disclosure would expose H and L; and he has rehearsed what might be called the “merits points” which militate against disclosure. The flaw in his submissions seems to me to lie in this: that, if he is right, it is difficult to conceive of any circumstances (other than a further relevant conviction) in which disclosure could be justified. But there must be such circumstances: for example, if at some future time H and L engaged in work which in fact brought them into regular contact with children, there would be at least (as I think that H and L accept) a strong case for disclosure. In truth, by the decision letter ACC is doing no more than reserving for the future its right to act in accordance with the law as it stands in whatever factual situation then obtains. There is nothing wrong about that and there is no ground on which H or L could reasonably apprehend that there is a risk that ACC will act in excess of its rights. Indeed, the fact that ACC has been prepared to stay its hand on future disclosure pending the outcome of this litigation is evidence of the responsible manner in which it has approached the whole matter.[47]On this aspect of Issue (2), I would go so far as to say that the policy adumbrated in the decision letter represented the minimum permissible response to the situation with which ACC was faced. Anything less would have been open to legitimate criticism as constituting a failure of the duty of ACC towards children within the area.[48]The second aspect of Issue (2), that relating to disclosure to personal assistants, is less clear-cut.[49]As with every decision which it has had to reach in this case, ACC was called upon to carry out a balancing exercise. The court can interfere with ACC’s conclusion only if it is such as no reasonable authority could have reached or, which is the same thing, amounts to a disproportionate interference with the right of H and L to respect for their private life. In relation to the decision relating to personal assistants I have, with some diffidence, come to the conclusion that ACC has gone beyond the boundaries of what is permissible.[50]The factors which support the decision are obvious: they include the guilt of H, the fact that H and L are in denial, the duty of ACC to safeguard children in the area, and the limited number of persons to whom it is proposed to make disclosure. These factors are, in short, the same as those which provide support for the disclosures made in the summer of 2009 (Issue (1)) and the policy to be followed with other individuals and with organisations in the future (the first part of Issue (2)). There are, however, matters which relate to the personal assistants, which are specific to this limited aspect of the case.(1) The action proposed in relation to the personal assistants has to do with activities largely (exclusively, if H and L are correct when they say that they do not socialise with their carers) within the home of H and L.(2) The action must, of its nature, threaten to disrupt relationships which are of significance to H and L.(3) The action ignores the evidence from H and L as to two of the three long-term carers not having children and as to the recent insertion of a “no children at work” provision in the relevant employment contracts. I appreciate that ACC has reservations about the trustworthiness of H and L, but it does not follow that any evidence from them or any assurance they give as to their conduct should be wholly discounted.(4) The terms of the disclosure, which are perhaps inevitable, must raise in the minds of the carers suspicions as to their employers, which may (in the case of H) be more grave than his past conduct warrants and (in the case of L) be wholly unjustified.[51]I appreciate that a judge should hesitate before coming to the conclusion that a public authority which has conscientiously carried out a balancing exercise has arrived at the wrong result. This does, however, seem to me to be such a case. In so far as the decision of ACC relates to disclosure to personal assistants, it must be quashed.

Issue (3): Managed account

[52]The proposal to pay personal assistants through a managed account is intended to provide an audit trail as to the identities of the persons employed by H and L. It is parasitic upon the proposal to make disclosures to such persons as are now or may be in the future employed as personal assistants: and it must therefore, on common law and Convention grounds, fall with that proposal as to disclosures. There was, however, an additional argument about the lawfulness, as a matter of pure statutory interpretation, of the managed account proposal, and I should deal with that argument.[53]Both H and L have been assessed as needing community care services pursuant to section 47(1)(a) of the National Health Service and Community Care Act 1990. Such an assessment leads to a care plan of services to be provided by the local authority pursuant to section 47(1)(b) of that Act. The services planned for H and L include services of personal assistants. At one time, such personal assistants would have been employed and paid by the local authority. But the Health and Social Care Act 2001, and in particular section 57, introduced a scheme of what are called “direct payments”: this means that the local authority makes to the person receiving community care services payments which enable that person to purchase a relevant service − which, in the case of his having a personal assistant, would mean that he (and not the local authority) employs and pays the personal assistant. The object of the direct payments system is, perhaps, obvious, and is to provide for the autonomy and independence of the person receiving services: see the government publication, Guidance on direct payments For community care, services for carers and children’s services England 2009, paragraphs 20, 92, 93.[54]At the date at which the decision letter was written, the subordinate legislation governing direct payments was the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2003 (SI 2003 No 762). As from 9 November 2009, these regulations were repealed and replaced by the Community Care, Services and Carers and Children’s Services (Direct Payments) (England) Regulations 2009 (SI 2009 No 1887). It has been agreed by counsel that, for the purposes of this judgment, we should ignore the 2003 regulations and focus exclusively on the 2009 regulations.[55]Regulation 7(1)(c) provides that, save in cases for which provision is made by paragraphs (a) and (b), which can be ignored for present purposes, a responsible authority (which term covers ACC) “must, with that person’s consent, make in respect of a prescribed person direct payments in respect of the prescribed person’s securing the provision of a relevant service.” It is common ground that H and L are “prescribed persons” and that the services of their personal assistants are “relevant services.” Regulation 11 deals with conditions which may be attached to direct payments. Regulation 11(1) to (3) empowers the responsible authority to make a condition to the effect that relevant services shall not be secured from close relatives and others unless the authority is satisfied that the provision of services by such persons is necessary. By regulation 11(4) a responsible authority “may make a direct payment… subject to such other conditions (if any) as they think fit”; and by regulation 11(5) such conditions “may, in particular, require that the payee −(a) shall not secure the service from a particular person; and(b) shall provide such information to the responsible authority as the authority considers necessary in connection with the direct payment.”[56]Following this somewhat lengthy introduction, the controversy which has to be decided at the end of the line is a short and finely-balanced one. Mr Pitt-Payne says that regulation 11(4) is sufficiently wide to enable ACC to require payments to be made through a managed account. The imposition of a condition about a managed account would not affect the ability of H and L to decide whom they shall employ, at what rates of pay, for what hours and on what other terms. The condition is of a procedural kind which is not in fact destructive of the autonomy which the direct payments system is designed to achieve. I prefer, although by no great margin, Mr Cragg’s submission to the contrary. This is focused on what Mr Cragg would say is of the very essence of a direct payment. It is a payment which passes from the responsible authority to the payee. A condition that the payment should go through an intermediate account is inconsistent with the nature of a direct payment, and such a condition could be justified only if there were (which there is not) specific statutory provision for it.

Disposal

(b) Disposal

[57]In summary, my conclusion is that the disclosures made in the summer of 2009 were lawful; that the policy advanced as to future disclosure, other than disclosures as to personal assistants, is also lawful; but that the policies as to personal assistants, both with regard to disclosure and payment, must be quashed.

Cited in 1 later judgment