DM, R (on the application of) v Wigan Metropolitan Borough Council [2011] EWHC 2175 (Admin)

Case No CO/740/2011

[2011] EWHC 2175 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

Date Tuesday, 21st June 2011

M60 9DJ

B e f o r e:

HIS HONOUR JUDGE PELLING QC

SITTING AS A JUDGE OF THE HIGH COURT

Between

THE QUEEN ON THE APPLICATION OF DMClaimant

Between

WIGAN METROPOLITAN BOROUGH COUNCILDefendant

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Mr A Fullwood (instructed by Stephensons Solicitors, St Helens) appeared for Claimant

Miss R Begum (instructed by Legal Department, Wigan Metropolitan Borough Council) appeared for Defendant

J U D G M E N T

HHJ Pelling QC:

[1]In these proceedings the claimant, who I refer to hereafter as "D", who is a minor appearing by his litigation friend and father, who I refer to hereafter as "J", seeks judicial review of the decision of the defendant concerning(a) the provision of transport for the claimant to and from a specialist facility called "Leisure for All",

(b) the provision of direct funding for aspects of D's care and

[2]The claimant's case is that the refusal to provide transport and respite care is either in breach of a statutory duty and therefore unlawful, or alternatively the failure to assess the claimant as entitled to such provision is irrational in the public law sense. The failure to provide direct funding is attacked on the ground that the decision not to provide such funding has been decided by reference to the wrong question or the wrong criteria, and in any event is fatally flawed by a failure to give reasons or reasons that adequately and intelligibly explain why the authority has decided to refuse to make direct payments. The factual background

[3]There is no serious dispute as to the factual background. D was born on 6th April 1998 and is aged 13. He lives at home with his parents and younger sister. He has been diagnosed with ADHD and autism and presents with what is described in the skeletons and evidence as "very challenging" behaviour, which puts him and others at risk if not adequately supervised. An illustration of the issues that arise come from the core assessment which commences in the claimant's bundle at page 20. At page 25 in the bundle, under the heading "EDUCATION: CHILD/YOUNG PERSON'S DEVELOPMENTAL NEEDS - SOCIAL WORKER'S SUMMARY", appears the following:

"[D] does enjoy attending school however he can become upset when he feels he is treated unfairly, he can become angry and lash out at people. [D] cannot reason these feelings and is reactive. After the event he can become sad and feel bad about himself, however because [D] is reactive a situation can develop very quickly. School have utilised one to one staff for [D] and at times two to one. When [D] is calm he is affectionate and loving." 4. A little later on in the same document, at page 47 in the bundle, in the section headed "

ANALYSIS OF THE INFORMATION GATHERED DURING THE CORE ASSESSMENT" there appears the following:

"In relation to risk, there are two main areas of concern: the physical risk to other people when [D] is unable to control his aggressive behaviour, and the risks to [D]'s emotional wellbeing if he is not allowed to develop independence and learn to survive and enjoy social and community life. One is linked to the other in that fears about [D]'s aggression are resulting in him being prevented from accessing community resources. The benefits of [D] having opportunities to engage with his community are manyfold; this gives [D] time away from his immediate family and a break from what is clearly at times, a strained atmosphere. It gives him time away from his step-sister, which he identified himself as a goal whereby he would 'feel successful'. Conversely it gives other family members a break from their caring responsibilities and time to recuperate their energy to face future challenges. Importantly it gives [D] the opportunity to begin to develop a sense of self confidence leading to independence; to establish relationships with adults and young people outside his immediate family; to observe and learn from other role models and to challenge himself to manage within society's expectations. In order to achieve this, both [D]'s parents will need to begin to 'let go' which will include allowing other people to take responsibility for [D] at times and taking some measured risks."

[5]4. As is apparent from what I have said already, there is in [D]'s past a history of physical violence towards others. There has also been the use of language which is insulting and threatening. There are various examples contained in the papers, but for present purposes it is necessary only to identify one, which appears in D's father's most recent statement at C263 in the bundle:

"It is extremely difficult to the point of being impossible to transport [D] using public transport due to the risk he poses both to himself and other members of the public. There have been numerous incidents that I can quote when we have tried to take him on public transport. On one such occasion, as early as just last week, we attempted to take [D] to Hartwood Hall for a family day out and decided to try to take him on the bus. When we got onto the bus, [D] refused to sit with us as he wanted to sit by himself, so we sat close to him on the row behind. As the bus filled up, an elderly gentleman with bags of shopping took the seat next to [D] as there was limited seat space available. This immediately upset [D] and he began to shout at the gentleman [in language that I do not need to quote]. The gentleman was understandably extremely taken aback and offended and when he didn't immediately move, [D] began to kick out at him. I attempted to step in to explain and calm [D] down and the bus driver was forced to stop the bus. This was both extremely embarrassing and dangerous for everyone involved. This kind of incident is a common occurrence when we try to take [D] out. [D] does not use public transport to get to school, he isn't even able to travel on the school bus with the other children due to violent attacks against staff and other children and following a risk assessment some time ago was provided with taxi transport to and from school. I cannot understand why the Local Authority continue to ignore this, when it has been considered and accepted by the school."

[6]5. A core assessment was carried out by the defendant. Notwithstanding the difficulties that I have referred to, which have had an enormous, and perhaps unimaginable, impact on the lives of the family as a whole, it has never been suggested that the claimant ought to live other than with his family, at any rate on a permanent basis. In the carer's assessment prepared by the defendants and in answer to the question, "Do you want to continue to care, and if so what do you think you need to be able to continue in your caring role? How do you think we can support you?", D's parents are recorded as saying:

"Both [D]'s parents want [D] to remain at home as they both state they love him and want to support him into adulthood. They are concerned that [D] will be taken into care and they wish to access support to avoid this outcome at all costs. Both parents recognise they do need to ‘let steam off’ at times and have asked if there are any support groups for parents to facilitate this. Both parents are keen for Direct Payments to start. [J] believes that respite is a pressing need. Initially he perceived respite as having residential time away from [D]. On further examination, however, [J] stated he understood the limitations of this kind of service and stated that Respite day care would benefit the family equally as well."

[7]6. In consequence of the difficulties I have only inadequately described, the family have suffered financial difficulty. The defendant's core assessment records in the bundle [C40], under the heading "FAMILY AND ENVIRONMENTAL FACTORS: GENERAL-SOCIAL WORKER'S SUMMARY", the following:

"[J] said he had been made bankrupt in the past. He said this was due to spending £35,000 on taking [D] on holidays and he also gave up his job to care for [D]. This has left [J] in a position where he would be unable to get credit. A recent request for a community care grant was supported by the social worker and funding was provided for a fridge freezer, this was £130 of £1,300 requested. [J]'s solicitor has appealed on their behalf and around a further £350 has been awarded. [J] said his solicitor is pursuing this by writing to a place in Birmingham to continue with the appeal."

The health of both parents has been adversely affected as a result of the issues to which I have referred - see, in particular, the core assessment, where it is confirmed under the heading "FAMILY AND ENVIRONMENTAL FACTORS: GENERAL".

[8]It is common ground that in consequence of his disabilities the claimant is a person in respect of whom the defendant has functions under s. 29 of the National Assistance Act 1948. The significance of this will become apparent when I turn to the statutory framework in a moment.

[9]As will be apparent from what I have said already, various assessments have been carried out by the defendant in respect of the claimant's needs and how they ought to be met. There have been previous judicial review proceedings in respect of those assessments. The most recent assessment is the care plan, which was prepared and completed on 6th September 2010. In that document, under the heading "CHILD/YOUNG PERSON'S DEVELOPMENTAL NEEDS - EMOTIONAL AND BEHAVIOURAL DEVELOPMENT", the following appears:

"Child/Young person's identified development need and strengths and difficulties. ICS - Child Emotional & Behavioural Need ([D] needs simple strategies to manage his feelings of frustration in ways that are socially acceptable.) Planned outcome [D] will be able to mix with other young people in his community without them being at risk of physical aggression from him. Action details [D] will be supported to access community facilities by adults who are skilled at managing challenging behaviour. This will include groups and activities in the evenings, weekends and school holidays. The social worker will have responsibility to coordinate the support services ... ([D] needs to have regular opportunities to spend leisure time outside the immediate family environment and with a range of people. [D] needs his parents to allow him to take these opportunities despite the risks associated with it. This means that [D] needs support from adults who understand his disability and have skills in managing the challenges that result from it.) Planned outcome [D] will develop skills to begin to develop independence from his family. Action details [D] will be supported by skilled workers to access community facilities with other young people. The social worker will coordinate the support service."

[10]In relation to the questions concerning respite care and direct payments, these are considered in the most recent carer's assessment under the heading "What do you think would improve the quality of your life?", where the parents are recorded as saying that:

" ... direct payments would improve their quality of life and would help [D] develop his independence. They do, however, see the limitation of the hours assessed to date and think they are problematic. [J] also feels it would be beneficial for his son to be taken out by specialised services with a ratio of two staff to one to ensure [D]'s safety. In [J]'s opinion residential respite care for every other weekend would dramatically improve their lifestyle. Unfortunately, Wigan Local Authority do not have a respite facility that could facilitate these needs at this time. Following discussions it was agreed with [D's parents] that the types of support that would best improve their quality of life would fall into two categories. They were:  leisure activities for [D]  respite for the family. These two categories can be used to assess the service provision that is available and whether they will improve the family's quality of life."

[11]The defendant accepts that the claimant benefits enormously from attending the specialist facility that I have referred to already and will continue to refer to as "Leisure for All". Currently a placement is available once a week on Sundays between the hours of 12 noon and 4 pm. The incidental effect of D attending between these hours on a weekly basis is that it provides D's parents with limited respite during those hours.

[12]The difficulty that remains concerns transport. The claimant's case, advanced by his father, is that(a) the claimant cannot be safely transported using public transport facilities because his behaviour is not predictable (see by way of example the incident described in J's witness statement set out above) and

(b) D ought to be attended by professionals while travelling, as he is currently when travelling to and from school, because his father says he cannot, and cannot reasonably be expected, to carry out that task.

[13]The defendant's position, in summary, is that set out in the second statement of Miss Hewer, which is in these terms:

"The Local Authority is unfortunately not in a position to fund [D]'s transport to Leisure for All activities. Transport is not part of the package available to children and young people accessing this resource in Wigan. The activities are provided to disabled young people through specific government funding and have been accessed by approximately 170 young people over the last year, who present with a wide spectrum of learning and physical needs. It is an expectation of them all, that they get to and from the activities with support from their parents or carers. Limited resources is one reason for this expectation. Given the number of young people attending the activities, funding for and/or provision of transport would require a significant amount of resources from a finite budget (in terms of money, vehicles and staff). Such provision would impact severely on the activity programme itself. I have been advised by the co-ordinator of the Leisure for All service that transport was provided for summer schemes until approximately 6 years ago, when the cost (£15,000 at that time) was deemed too expensive and a decision was made by the then Service Manager that the money was better spent on providing more activities, for longer, and to more children and young people. It was then possible to provide the service in other school holidays and not just during the summer holidays." 14. It is accepted a little later in the witness statement that there remains a discretion in exceptional circumstances to deviate from the approach that I have just set out, and then the witness statement continues as follows: "

In [D]'s case, the family have not been assessed as having exceptional circumstances, beyond the range of the majority of families with a disabled child accessing the leisure service. Therefore, as with this majority, [D]'s parents are expected to fulfil their parental responsibility. However in [D]'s case, the Local Authority has made efforts to offer assistance to his family, in order to support them to fulfil this responsibility. Initially this assistance was through the funding of individual workers to support [D] in the very early stages of accessing the community away from his family. It was recognised that he and his parents needed to do this at a slow pace and that they were not ready for [D] to move straight into the Leisure for All activity programme. This process led to [D] being able to access a range of activities with support from Landgate House and these workers in turn assisted [D] into the Leisure for All activity programme. In these early stages, transport was provided by the workers as part of that short term provision. Attempts have been made on a number of occasions to identify a driver and escort from the volunteer programme. It is unfortunate that no one has so far come forward to offer this but the coordinator of the programme remains aware of the circumstances. I have confirmed with him that he is willing to target volunteers specifically regarding matching [D]'s needs when a new referral is received. [J] is already aware of the Ring and Ride service used by some families."

[15]14. As to the scheme referred to at the end of that quotation, whilst the evidence appears to establish that it would be available in order to transport the claimant, and possibly his father, to Leisure for All on Sundays, it does not address the supervision issue to which I have already referred. Statutory framework

[16]15. It is common ground that s. 2 of the Chronically Sick and Disabled Persons Act 1970 applies to the defendant in relation to the claimant. Insofar as is material, that section provides:

"Provision of welfare services (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 ... (c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him; (d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements ... (f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise ... then ... ... it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."

[17]16. Direct payments are regulated by statute and regulation. S.17A of the Children's Act 1989 is the primary legislative source in relation to such payments. That provision provides, insofar as is material, as follows:

"Direct payments (1) The appropriate national authority may by regulations make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person's consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in that subsection. (2) A person falls within this subsection if he is - (a) a person with parental responsibility for a disabled child ... and a local authority ('the responsible authority') have decided for the purposes of section 17 that the child's needs (or, if he is such a disabled child, his needs) call for the provision by them of a service in exercise of functions conferred on them under that section."

[18]17. The regulations that are relevant for present purposes are the Community Care Service for Carers and Children's Services (Direct Payments) (England) Regulations 2009. In regulation 1 the phrase "prescribed person" is defined as meaning a person falling within the description contained in regulation 2 or 4 who falls within s. 57(2) of the 2001 Act or s. 17A(2) of the 1989 Act. Regulation 4 is headed "Prescribed descriptions of persons under section 17A(1) of the 1989 Act - children's services", and provides as follows:

"For the purposes of section 17A(1) of the 1989 Act a person is of a prescribed description if they are - (a) a person who appears to the responsible authority to be capable of managing a direct payment by themselves or with such assistance as may be available to them; and (b) not a person to whom Schedule 1 applies."

It is common ground that Schedule 1 is of no relevance to the circumstances of this case. 19. It is common ground that once a local authority has concluded that a person has a relevant need, there is an obligation under s. 2 of the 19070 Act to provide for such needs without regard to expense - see R v Wigan MBC ex parte Tammadge

[1998] 1 CCLR 581

, a decision of Forbes J, who at 597 said:

"I am therefore satisfied that, by a date no later than 22 October 1996 (when it was acknowledged that Wigan had accepted the SSCRP findings: see above), Mrs Tammadge's needs for larger accommodation was established. I reject Miss Patterson's submissions to the contrary. As a result, from that date Wigan have been obliged to make provision of such accommodation to Mrs Tammadge and her family: see ex parte M at pages 1009-1010. Once the duty had arisen in this way, it was not lawful of Wigan to refuse to perform that duty because of a shortage of or limits upon its financial resources or for any of the other reasons expressed in Mr Walker's letters ... see ex parte Sefton ... where Lord Woolf said this: However in this case it is clear from the evidence that Sefton accepted that Mrs Blanchard met their own threshold as a person in need of care and attention. What they were seeking to do was to say that because of their lack of resources notwithstanding this they were not prepared to meet the duty which was placed upon them by the Section. This it was not entitled to do.'"

A refusal to provide an assessed need is therefore unlawful: see most recently R (on the application of McDonald) v Royal Borough of Kensington and Chelsea

[2010] EWCA Civ 1109

. The parties' respective cases

[20]19. For the reasons I have already summarised, the claimant contends that I should quash a decision taken by the local authority on 6th January 2011 to close the claimant's case and that I should remit both the current care plan and the carer assessment to the local authority with a direction that they be reassessed lawfully. The defendant's case is that the authority has not acted unlawfully or irrationally and that the applications should be dismissed. Discussion

[21]20. It is convenient that I discuss the alleged errors under each of the heads adopted by counsel in the order that they were addressed in the course of submissions. This is the course I adopt. Transport:

[22]The claimant's primary case was that the failure to provide transport was unlawful, being contrary to section 2(1)(d) of the 1970 Act, because on a proper construction of the care plan, the relevant parts of which I have set out above, the defendant local authority had concluded that there was a need for such transport and thus were obliged to provide it, or otherwise act in breach of the duty imposed by the subsection and subparagraph to which I have referred. The section of the care plan relied upon by the claimant simply does not say what Mr Fullwood says it says, at any rate expressly. The whole of the text in that section of the relevant document is focused on the need to provide for facilities such as those available at Leisure for All, because the provision of such facilities would obviously benefit the future development of D, as is more fully explained by the defendant's officials elsewhere in the document. Nowhere is the question of transport touched upon. That being so, I do not see how it could be said that a breach of duty under section 2 arose in the circumstances of this case. 23. Mr Fullwood's alternative submission was that the care plan was defective, and irrationally so, because it failed to address the question of transport at all. Thus, it was his submission that no reasonable local authority, properly directing itself, could conclude that the claimant's requirements for support could be resolved without considering the question of transport.

[23]24. In my judgment, this submission is well made. At the time that the care plan was drawn up the defendant actually knew that the claimant would require transport to get to and from the facility that had been identified, that is to say Leisure for All, was aware of the very difficult behavioural issues that existed in relation to the claimant, and furthermore was aware at the time when the report was signed off that temporary transport arrangements were in place which, on the basis of the evidence that I have set out above from the defendants, was meant to be a transitional arrangement that was designed to enable the claimant's father to cope with the issues that were likely to arise as a result of transportation of the claimant to and from Leisure for All. The care plan, however, simply ignores the issue, even though, on the defendant's own evidence, the issue was alive and the subject of a transitional arrangement the efficacy of which was yet to become apparent. Had a transport requirement been identified and the response been to refuse on resources grounds, that would have been unlawful for the reasons identified by Mr Fullwood. Simply to ignore the issue in the circumstances was, in my judgment, irrational in the public law sense, and probably unlawful as well, since no consideration on this basis appears to have been given to whether the claimant had a need which, if identified as being a need, the local authority would be bound to provide for pursuant to section 2 of the 1970 Act.

[25]Respite care:

[24]26. It was submitted on behalf of the local authority that respite care had been properly considered and was being provided by the willingness of the local authority to fund the claimant's attendance at Leisure for All.

[25]27. I am wholly unconvinced by this analysis. The care assessment, I accept, appears to record an acknowledgement by the claimant's parents that respite day care would benefit the family as much as residential respite care. However, it is not clear, at any rate to me, whether the claimant's parents agreed to this simply because the local authority advised them that residential respite care was not available, as it is apparent they did in the earlier part of the document that I have set out above. Certainly nowhere in the assessment, or elsewhere at any event in correspondence passing between the parties, does the defendant clearly assess respite needs by reference to day care rather than residential care. There is no doubt that the facilities that the defendant could be required to provide included those identified in section 2(1)(f) of the 1970 Act. In my judgment, the carer's assessment document is flawed, first because it fails to set out an assessment at all in relation to respite, but rather purports to record an agreement reached between the parties on an uncertain and opaque basis and, secondly, because it appears to reject the concept of residential respite care, not on the basis of the best interests of the claimant or by reference to his needs, but on the basis that, even if assessed as needed, it would nevertheless not be provided because such facilities were not available. This was an impermissible approach because such facilities could, and in an appropriate case would have to be provided, by being bought in as a service by the defendant if the defendant was to avoid a breach of its obligations under section 2 of the 1970 Act. Again, therefore, in my judgment the assessment is flawed in relation to this issue.

[28]Direct funding:

[26]29. The challenge to this issue is essentially a traditional public law challenge based on defective reasoning and an absence of proper reasons being given. The first ground of challenge is that no, or no proper, reasons were given for refusing direct funding. It is common ground that an administrative body such as the defendant must adopt procedural fairness at common law, and whilst it is true that not every decision requires reasons to be given, a decision such as the one under consideration is not one of those for which no reasons are required. Where reasons are required, the length and depth of reasoning required differs depending upon the circumstances. It is the case, however, that where reasons are required as a minimum they have to be sufficiently intelligible and comprehensive to explain(a) what the decision is that has been taken, and

(b) how and why it has been reached. The only reasons supplied to the claimant or his parents in relation to direct funding are those which are set out in the bundle at page 65 under a heading "Service provision for [D]", where, under the subheading "Provision", there is at number 4, "Direct Payments". Under the heading "Completed", there appears the following:

"Assessment undertaken and agreement by Service Manager to Direct Payments. completed"

. Under the heading "Action" there appears the following:

"Direct payments were agreed at three hours provision per week. However this could not be set up as [J] was not deemed an appropriate person to administer the programme. Therefore direct payments are no longer an option."

[27]30. It is plain that this is not a proper basis for rejecting a claim for direct payments, which is otherwise identified as being an entitlement, subject to quantification, in primary legislation. After the event explanations that have been offered to date include that in a statement filed on behalf of the defendants by Miss Hewer, who says that J could only be assessed as suitable to receive direct payments if Miss Hewer was " ... able to identify demonstrable and meaningful change in approach and attitude from [J] which is likely to result in the team having confidence in his ability to employ staff effectively". That approach does not attempt to apply the test identified in regulation 4 of the relevant regulations, the relevant part of which is set out above; much less does it appear to carry into effect the approach or practice identified in the guidelines issued in relation to the correct approach to be adopted to such decisions. There is, in my judgment, an additional difficulty. The reasoning set out in the statement does not appear to coincide with the reasoning set out in an internal e-mail of 28th July 2010, which in any event contains reasoning which was not at any stage communicated to the claimant, or at any rate not communicated to him until after the commencement of these proceedings. Conclusion

[28]31. In those circumstances the decision to close the claimant's case must be quashed unless it is agreed between the parties since the conclusion of the argument that that is the position in any event. The care plan and carer's assessment must, it seems to me, be remitted for reconsideration and reassessment in accordance with the relevant legal principles that I have attempted to identify above. It is not the function of this court to carry out assessments in place of the local authority, who at all times are the primary decision makers. It is only the function of a court of review such as this to interfere with decisions taken by decision makers where it can be demonstrated that the decisions taken are tainted with unlawfulness or irrationality in the public law sense. Thus it is that with these directions in place the local authority can proceed to re-examine the questions which I have referred to, applying the correct legal principles.

[29]32. Given that this is the outcome, it would be wrong of me to say any more about the merits of the issues which have given rise to this application, which in the end will have to be the subject of further consideration by the local authority. I have, however, I think set out sufficient in this judgment to identify the problems that have arisen, the reasons why the decisions need to be re-examined and to have pointed in the direction of what the relevant legal principles are or where they can be found.