D, R (on the application of) v Brent Council [2015] EWHC 3224 (Admin)

Case No CO/4522/2015[2015] EWHC 3224 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/11/2015
Before
DAVID CASEMENT QC
Between
THE QUEEN (on the application of)ClaimantDClaimantBRENT COUNCILDefendant
Mr Eric Metcalfe (instructed by Maxwell Gillott) for ClaimantMs Hannah Slarks (instructed by London Borough of Brent) for DefendantHearing Hearing dates: 4 November 2015
JudgmentDavid Casement QC :Introduction and background
[1]The Claimant is an extremely vulnerable 23 year-old with autism spectrum disorder and severe communication difficulties. Until the end of July 2015, he attended St John’s College, an independent specialist school in Brighton on a residential basis. Since then, he has lived in Brent with his mother, who is also his litigation friend in these proceedings.[2]On 8 May 2015, the Defendant assessed the Claimant as having a need for “suitable care and accommodation … in Brent” to be identified by “July 2015” [C75]. Specifically, the Defendant concluded that the Claimant “would be best supported in a structured, supportive setting, similar to the environment that he is now” [C71]. The Defendant also agreed to draw up a new support plan to reflect this forthcoming change in his situation [C72].[3]On 25 May 2015, the Claimant’s mother asked the Defendant to place the Claimant at the London Care Partnership (‘LCP’) [D16]. The following day, the Defendant’s social worker communicated by email dated 26 May 2015 that she agreed to put in a referral for the Claimant to LCP [D16]. Further in that email the social worker stated that “the chances of a place for [D] are slim and so I will also be looking for other placements. If there are other placements that you would consider please let me know so that I can investigate whether there is a vacancy and get the referral process going as soon as possible.” In an email dated 7 June 2015, the Defendant’s social worker stated that she would “obviously do my best” to pursue the Claimant’s placement with LCP “as it appears to meet his needs well” [D14]. On 23 June 2015, the Defendant also referred the Claimant to Mount Lodge, a supported living provider, for assessment [B38/7].[4]On 24 July 2015, the Claimant returned to his family home in Brent. Despite the Defendant’s assessment that he was in need of accommodation and support upon his return to the Defendant’s area, no arrangements had been identified by that time. On 18 August 2015, the Defendant asked three supported living placements – CMG, Care Partnership and Precious Homes – to assess the Claimant [B40/34].[5]It is now almost six months since the Defendant first assessed the Claimant as having a need for the identification of accommodation and support by the time of his return to Brent in July 2015. The Defendant has yet to take a decision in favour of the Claimant’s placement at LCP. It still has not ruled out placing the Claimant at LCP. The Claimant’s mother asserts that the Defendant has offered to do so as long as the Claimant’s mother funds the additional “top up” cost between the cost of placement at LCP and the cost of local support living arrangements (see [B10/6] and [B40/33]). It is contended on behalf of the Claimant that the Defendant’s sole or main driver in delaying making a decision to place the Claimant at LCP is financial and there is little or no regard for the Claimant’s interests.[6]The Claimant has now been at home for over three months. In the absence of suitable accommodation and support, it is contended that both his independent living skills and his condition more generally are said to be deteriorating [B10/5]. It was submitted on behalf of the Claimant that the window for the Claimant’s placement at LCP was closing within a short timescale hence the urgency of these proceedings [B14/4-5]. In her witness statement, the Defendant’s social worker stated that she was not aware of any risk to the Claimant’s placement but she admitted that she has not been in contact with LCP since August [B41/43]. That position has been updated by way of a letter sent by the Defendant to the Claimant’s mother on the day before the hearing. I will return to the contents of that letter which is relevant to these proceedings.[7]By his Order dated 29 October 2015 [A71], Cranston J granted the Claimant’s application for urgent consideration and directed that a rolled-up hearing be held on 4 November 2015. The Claimant challenges as unlawful: i) the Defendant’s continuing failure to take a decision concerning his placement, being contrary to its statutory duty under section 2(1) of the Chronically Sick and Disabled Persons Act 1980 and section 18(1) of the Care Act 2014; ii) the Defendant’s failure to prepare a care and support plan for the Claimant, as well as to review and revise that plan, contrary to sections 24(1), 27(1) and 27(4) of the Care Act 2014; and iii) the Defendant’s failure to involve the Claimant and his mother in its decisions concerning placement, contrary to section 27(2)(b) of the Care Act 2014 and section 19(b) of the Children and Families Act 2014.

Relevant law and guidance

[8]It is common ground between the parties that section 9 Care Act 2014 requires the Defendant to assess the Claimant’s needs and section 24 of the Act obliged the Defendant to prepare a care and support plan.[9]Section 24(1) of the 2014 Act provides:
“(1) Where a local authority is required to meet needs under section 18 or 20(1), or decides to do so under section 19(1) or (2) or 20(6), it must— (a) prepare a care and support plan or a support plan for the adult concerned, (b) tell the adult which (if any) of the needs that it is going to meet may be met by direct payments, and (c) help the adult with deciding how to have the needs met.”
[10]Section 25(1) defines a care and support plan materially as follows:
“(1) A care and support plan … is a document prepared by a local authority which— (a) specifies the needs identified by the needs assessment …, (b) specifies whether, and if so to what extent, the needs meet the eligibility criteria, (c) specifies the needs that the local authority is going to meet and how it is going to meet them, (d) specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or to which of the matters referred to in section 10(5) and (6) the provision of support could be relevant, (e) includes the personal budget for the adult concerned (see section 26), and (f) includes advice and information about— (i) what can be done to meet or reduce the needs in question; (ii) what can be done to prevent or delay the development of needs for care and support or of needs for support in the future.”
[11]In addition, where a local authority prepares a care and support plan, it is required by section 25(3) to involve:
“(a) the adult for whom it is being prepared, (b) any carer that the adult has, and (c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare.”
[12]Section 19 of the Children and Families Act 2014 applies in respect of the Claimant and provides that:
“In exercising a function under this Part in the case of a child or young person, a local authority in England must have regard to the following matters in particular— (a) the views, wishes and feelings of the child and his or her parent, or the young person; (b) the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned; (c) the importance of the child and his or her parent, or the young person, being provided with the information and support necessary to enable participation in those decisions; (d) the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.”
[13]The Special educational needs and disability code of practice: 0 to 25 years is statutory guidance issued by the Departments for Education and Health in January 2015:
“Under no circumstances should young people find themselves suddenly without support and care as they make the transition to adult services” (para 8.65). In addition, local authorities must: “put in place a statutory care and support plan for young people with eligible needs for adult care and support. Local authorities must meet the needs of the young person set out in their care and support plan (para 8.68).”
[14]The Care and Support Statutory Guidance was issued by the Department of Health in October 2014. Chapter 20 of the Guidance emphasises the importance of continuity of care, see especially as follows:
“20.3. The continuity of care chapter sets out the process local authorities must follow to ensure that the person’s care and support continue, without disruption, during and after the move …. 20.4. The aim of this process is to ensure that the person with care and support needs will be able to move with the confidence that arrangements to meet their needs will be in place on the day of the move ….”
[15]There are other provisions within the 2014 Guidance to which reference is made briefly below. Issues between the parties The “deadline” for making a decision

Issues between the parties

[16]It is now common ground between the parties that the Council carried out an assessment of the Claimant’s needs dated 8 May 2015. This is summarized in paragraph 13 of the social worker’s statement [B35]. On behalf of the Claimant it is contended that the assessment concluded at page 50 [C86] that there was to be a “Move to residential care” and that at page 39 of the assessment there was established what Mr Metcalfe described as “the deadline” namely the end of July 2015 for “Suitable care and accommodation to be identified for [D] in Brent. [D’s mother] to be updated with available accommodation as arrangements need to be made for her to visit.”.[17]The central thrust of the Claimant’s case in these proceedings is that the Council was under an obligation by reason of statute, the Council’s own guidance and the assessment of 8 May 2015 to have made a decision regarding the most suitable way of meeting the Claimant’s already assessed needs by no later than when the Claimant finished his time at St John’s College namely by the end of July 2015.[18]It was contended by Mr Metcalfe that by the end of July or shortly thereafter the Defendant was obliged to make a decision on the best information it had taking into account the assessment’s clear conclusion that residential care was the appropriate option for the Claimant. Specifically Mr Metcalfe resisted any suggestion by the Council that the Claimant’s mother was in any way at fault or non-co-operative in respect of alternatives to LCP and highlighted that she had engaged with the assessment for one provider namely Mount Lodge and had made enquiries of many others. It was also contended on behalf of the Claimant that whilst the Claimant’s mother had expressed her reluctance to allow the Claimant to be assessed by another provider namely CMG that should not be regarded as obstruction especially when looked at against a background of the Defendant having breached the deadline for making a decision, which was end of July, and the further continued inexcusable delay in putting forward the option of CMG which only took place on 18 August 2015.[19]On behalf of the Defendant Ms Slarks rejected the suggestion of there being any deadline for making a decision and contended that there was no deadline set out in the statute, the Council’s guidance or in the assessment. Whilst it is accepted that there is a general public law duty to make a decision within a reasonable period of time, what is a reasonable period of time will depend upon all the circumstances of the case. It was also submitted by Ms Slarks that important aspects of the assessment and the input from various sources in respect of the Claimant was supportive of exploring the possibility of supported living to promote the independence of the Claimant. In particular it was highlighted that certain recommendations from St. John’s were that the Claimant would go into semi-independent/supported living accommodation [C/127, 141 and 142]. Further in the Review Minutes Summary of the meeting of 19 November 2014 it was recorded “[D] is clear he would like to move back to London, ideally living with his Mother. However a more natural progression would be for him to live in a supported environment, have more independence and begin to live as a young adult. [D] would prefer to live on his own more that with other people, in a self-contained flat within a supported block with other young people, where he could access their company as and when he chooses. Having his own space is important but his mother says he needs to be able to socialize with others.” Furthermore the Defendant highlights that Mount Lodge had assessed the Claimant as suitable for supported living. Mount Lodge was however not regarded by the Defendant as an appropriate specific provider of such care for the Claimant – supported living was however still very much a real option with a different provider.[20]The Defendant contends that it would be unreasonable and a usurpation of the Defendant’s statutory function for it to be forced to choose residential care at LPC when there remains a further option, namely supported living with care provided by CMG to be explored. Supported living with CMG might be more appropriate for the Claimant’s needs than residential care with LCP and more consistent with not only the recommendations from St John’s and the review meeting referred to above but also with the Claimant’s own expressed wishes and thereby enhance the Claimant’s independence.[21]The Defendant contends that if there is no assessment that can be undertaken with CMG in respect of the supported living option the Defendant would be forced to adopt one of two approaches:(a) to choose residential care for the Claimant with LCP which may not be the best option for the Claimant as well as incurring substantially greater expense for the Defendant or more likely(b) to make an application to the Court of Protection for the Court to decide whether to make the decision for an assessment with CMG in place of the Claimant’s mother. The latter option whilst more costly and time-consuming would at least, if the application is successful, enable an assessment to be carried out with CMG to determine how best the Claimant’s needs should be met.

Responsibility for the delay in making a decision

[22]It is a feature of this case that in July only one alternative to LCP was being considered namely Mount Lodge which turned out to be not suitable in the case of the Claimant. The Council contends that the Claimant’s mother had expressed her reluctance for the Claimant to be placed under the care of Mount Lodge, that this was indicative of the Claimant’s mother adopting a closed mind and only wanting residential care with LCP and that the effect of this was to delay a decision being provided by Mount Lodge. When the Defendant found that Mount Lodge was taking a considerable period to make a decision the Claimant sought assessments from three other providers including CMG in August 2015. The Defendant says that if there was any delay it was in part caused by the Claimant’s mother, or by the provider but in any event does not amount to such delay as to amount to unreasonableness in the public law sense.[23]In any event the Defendant points out that it has offered interim care to the Claimant and his mother whilst the decision was being made regarding the Claimant’s care but this offer was rejected. By an email dated 22 July 2015 the Claimant’s mother made it clear that interim care was not required and “He will feel safe at home with me until the matter of his provision is resolved.”[24]On behalf of the Claimant it is contended that the delay is extreme and is entirely unreasonable. The delay is made unreasonable not merely by the amount of time that has passed since the deadline of end of July but also the special needs of the Claimant including the danger that his condition is liable to deteriorate with the potentially serious consequences for his own well being and potentially that of others [C69/70]. Whilst it is accepted that the Claimant would normally return to live with his mother during the summer periods that would normally only be for a period of 6 weeks and that period is now over three months.

Letter of 3 November 2015

[25]By letter dated 3 November 2015 the Defendant wrote to the Claimant’s mother asking again that CMG be permitted to assess the Claimant. The letter provides a clear timescale in which not only does it record that CMG would carry out the assessment in the week commencing 9 November 2015 but that the QAM Panel of the Defendant would make a final decision on 18 November regarding care for the Claimant. Furthermore it confirmed that LCP had assured the Defendant that it would hold a place for the Claimant until a decision was made on 18 November. This would enable the Defendant to consider the potentially appropriate options. The letter confirmed that the Defendant had referred the matter to an Independent Advocate pursuant to the Care Act 2014.[26]At the commencement of the rolled-up hearing Mr Metcalfe on behalf of the Claimant resisted the suggestion I made that the case be put back for a period to enable an assessment to be carried out along the lines set out in the letter. The Claimant has maintained the position that the efforts to allow CMG to assess are now too late.

Findings

[27]The Defendant was under an obligation to carry out an assessment of the Claimant’s needs by reason of section 9 Care Act 2014 and was under an obligation to assess and decide how those needs were to be met. Neither section 24 Care Act 2014 nor the other provisions cited impose a time limit, equivalent to a deadline, as contended on the making of a decision and a care and support plan. It is however clear that on general public law principles the decision and the plan must be made and prepared within a reasonable period of time. What that reasonable period of time is will depend upon all of the circumstances of the case. In the present case such circumstances will include the objective to be pursued most particularly to identify what is the best option for meeting the Claimant’s assessed needs. The circumstances also include the Defendant’s obligation to try to obtain input from the Claimant’s mother and as well as to try to obtain assessments and information from third-party care providers, in this case CMG.[28]In the Care and Support Statutory Guidance dated October 2014 it is clear from paragraphs 6.29, 10.84 and 20.4 that the decision and planning process is to be completed in a timely fashion, proportionate to the needs to be met “to ensure the plan is appropriate to meet the needs in question, and is agreed by the person the plan is intended for. The planning process should not unduly delay needs being met.” (paragraph 10.84). The Guidance envisages that there may be delay and it is important to bear in mind that paragraph 20.4 is specifically concerned with continuity of care where there is a move between local authorities. That situation does not arise in the present case.[29]The submission that there was a final deadline of the end of July 2015 or shortly thereafter for the making of a decision in respect of the Claimant’s care is not supported by the legislation or the guidance. The Defendant was obliged to consider what was the best way of meeting the Claimant’s needs given the information available to it that supported living might well be the best option for him. The Defendant was therefore entitled to pursue that option even after the end of July and to reach a decision within a reasonable period of time. The reference in the assessment in May 2015 to “Move to residential care” [C86] cannot be regarded as a final determination as to the how the Claimant’s needs should be met given that one option set out in the assessment documentation was that of supported living and at that stage there was an absence of any assessments from providers of such supported living care. Indeed the evidence of the social worker as set out in her witness statement is that the reference at [C86] must have been filled in by her by mistake. Looking at the evidence overall I find that is likely to be the case.[30]In my judgment whilst there have been delays and whilst it may have been more advisable for the Defendant to have identified more providers as options in June or July than merely Mount Lodge that decision is not in itself unreasonable. One of the marked features of this case is the communication between the Defendant and the Claimant’s mother was not as clear as it should have been. The email correspondence such as that of 26 May referred to above was likely to have given the impression that LCP was the main or settled option subject to availability and that other placements were being looked at just in case a place at LCP could not be obtained. However it is not suggested that anything that was communicated gave rise to a legitimate expectation and it is clear that in communications thereafter and certainly by the letter of 8 July 2015 that the Claimant’s mother was aware that a final decision had not been made regarding LCP and the Defendant was looking at all options.[31]There are a number of reasons why there has been delay and the delay has been caused in whole or in part on different occasions by the Defendant, third party care providers in not responding in a timely fashion and the delay by the Claimant’s mother in arranging an assessment with CMG. The delay in the circumstances is not such as to render the Defendant to have acted unlawfully.[32]I am satisfied that there is no breach of duty on the part of the Defendant as alleged in these proceedings. The Defendant is entitled and indeed obliged to consider the relevant options for meeting the assessed needs of the Claimant. The assessment of May 2015 did not identify residential care as the only option and the possibility that supported living might be best for the Claimant remains a real option and an important one to be considered. Indeed it is difficult to see how the Defendant could be acting in the Claimant’s best interests if it did not pursue the option of supported living by arranging an assessment with CMG as a potential provider.[33]Further, I am satisfied that whilst the initial written communications from the Council could have been much clearer as to the importance of other care options and the need to look at supported living this did not amount to a failure to involve the Claimant’s mother in the process. The Claimant’s mother has been involved and the process is not yet completed.[34]The delays in making a decision and preparing the appropriate plan for the Claimant’s care are not solely the fault of the Defendant. In any event the delays that have arisen, taking into account the circumstances set out above including the offer of interim care by the Defendant and the actual care being provided by the Claimant’s mother, has not been unreasonable in the public law sense and do not render the actions of the Defendant unlawful.[35]The letter of 3 November 2015, whilst clarifying the position regarding a place at LCP being held open and the short timescale for a final determination in this matter as to how to meet the Claimant’s needs, is otherwise not new information. It does however bring into sharp focus what would be a usurpation of the Defendant’s function if an order is made by the Court that it make a decision now on the present information without an assessment by CMG which assessment can be carried out within a short timescale. The effect would be to force the Defendant to make not only a decision on inadequate information but to make a decision which may not be in the best interests of the Claimant or may even be damaging to the Claimant through inappropriate care. There is no proper basis upon which the Court can grant the relief sought in the circumstances of the present case.

Conclusion

[36]The relief sought in the present case is inappropriate given the ability to carry out the required assessment and to make a final decision within a matter of two weeks of today. For that reason alone it would be appropriate to refuse permission to proceed with the judicial review and permission is hereby refused.[37]In any event having heard full argument and read the substantial documentation placed before the court I am satisfied that the Defendant has not acted unlawfully as alleged and had permission been granted the claim would have been dismissed.[38]It is therefore anticipated by the Court that the Claimant will be assessed by CMG to assess whether it can meet his assessed needs and that the Defendant thereafter will proceed with the expedition it has undertaken to do in its letter and make a final decision regarding the Claimant’s care.[39]Consequential orders including costs and permission to appeal can be addressed by way of written submissions and if requested, a telephone hearing, if the parties are unable to agree such matters between them. The parties will file written submissions within the next 14 days setting out any issues that remain to be addressed by the court. The parties shall lodge a minute of order to reflect the terms of this judgment.