CP v North East Lincolnshire Council, Court of Appeal - Administrative Court, February 09, 2018, [2018] EWHC 220 (Admin)

Resolution Date:February 09, 2018
Issuing Organization:Administrative Court
Actores:CP v North East Lincolnshire Council
 
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Neutral Citation Number: [2018] EWHC 220 (Admin)

Case No: CO/3703/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 9 February 2018

Before :

HIS HONOUR JUDGE GRAHAM WOOD QC,

Sitting as a Judge of the High Court

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Between :

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David Lawson (instructed by John Ford solicitors) appeared on behalf of the Claimant

David Lock QC (instructed by Jacqueline Thomas) instructed by North East Lincolnshire Council on behalf of the Defendant

Hearing dates: 5th October and 7th December 2017

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His Honour Judge Graham Wood QC :

Introduction

  1. This court has been concerned with the substantive hearing of an application for judicial review relating to the discharge by the Defendant, North East Lincolnshire Council, of its statutory responsibilities under the Care Act 2014 and the Children and Families Act 2014 towards the Claimant, who is a 22-year-old woman with complex and multiple disabilities which require round-the-clock care. (I shall refer to the Defendant within this judgment as the local authority. The Claimant is anonymized for obvious reasons).

  2. At the time the proceedings were commenced, there was an outstanding application before the First Tier Tribunal, Health, Education and Social Care Chamber (FTT) which also sought to challenge the local authority provision and its approach to the need for an Education and Health Care plan (EHC). The tribunal involvement has been an ongoing process, until very recently, and thus there has been a degree of fluidity relating to care and education provision which has meant that the judicial review has been in a state of regular flux, with the respective positions of the parties being adapted to respond to the current prevailing circumstances.

  3. The parties proceeded to argue their cases before me, duly modified to reflect the present nature of the challenge, on 5th October 2017. Regrettably there was insufficient time to complete the argument on that date. A further hearing was required, which took place on 7th December 2017, after which I reserved my judgment. Between the 5th October and 7th December there were further developments in relation to the tribunal proceedings with the final resolution occurring very shortly before the resumed JR hearing. I shall refer to these below. Further, as one might expect when there is continuing and ostensibly cooperative dialogue between local authority social services and the family of a young person with severe disabilities, the package of care including the personal budget setting out the financial payments which would be made by the local authority were agreed prior to the resumed hearing and on the face of it, there appeared to be no ongoing issue between the parties.

  4. However, the Claimant has maintained a challenge to past care provision and the level of direct payments, and seeks a variety of remedies, including the quashing of previous assessments and care plans, their mandatory redetermination, and declarations of unlawfulness. It is acknowledged that the relief sought is intended to underpin potential compensatory claims in relation to asserted past failures.

    Procedural history and chronology

  5. It is necessary to set out in brief outline how the current position has been arrived at, to understand the issues as they have now been crystallised.

  6. When proceedings for judicial review were commenced as long ago as July 2016, there were three separate areas of challenge pursued by the Claimant. They related to an adult social care assessment and care and support plan from April 2016, which provided for direct payments of £387.50 per week. The challenge can be summarised as (1) the failure to calculate a personal budget which was transparent, as required under section 25 (1) (e) of the Care Act 2014, in circumstances where a direct payment was proposed but no personal budget indicated, (2) insufficiency of the amount identified to meet the Claimant's needs, and the requirements of a lawful direct payment, and (3) unlawfully taking into account family support outside day-care provision.

  7. In the meantime, and by way of an ancillary process to the judicial review application, the Claimant's solicitors challenged the local authority's failure to provide an EHC which used to be known as a statement of special educational needs in relation to her placement at an establishment known as Fix n'Kiks which was part of Disability Active, a charity controlled by the Claimant's father and mother. Until recently this placement had been hotly disputed, but without the EHC in relation to the education component and the identification of Fix n'Kiks, the cost of that placement could not be recovered. As I have indicated, this challenge was proceeding before the FTT.

  8. In its initial response to the application, the local authority did not accept that any aspect of the care and support plan was unlawful, although it referred the court to the fact that the EHC plan was due to be considered by the FTT in September 2016, after which the Claimant's care may well be the subject of significant review. A stay was sought, and although it was opposed by the Claimant, James Goudie QC sitting as a deputy High Court judge in August 2016 granted it to allow the FTT resolution and any subsequent ADR.

  9. The FTT determination was provided in October 2016. It identified the progress which the Claimant was making at Fix n'Kiks, and directed the provision of an EHC plan.

  10. An initial EHC plan was then provided by the local authority, although the suitability of Fix n'Kiks was not accepted in the plan. There was to be further FTT involvement to determine whether Fix n'Kiks was a suitable placement.

  11. The local authority undertook further assessments in December 2016 and May 2017, and provided support plans in relation to both assessments. In relation to the JR proceedings, which were no longer stayed, and which were not resolved by ADR, following the grant of permission by Rhodri Price QC sitting as a High Court judge on 27th March 2017, the local authority subsequently put in a detailed response. This condescended to the December support plan, effectively arguing that any failures identified in the original grounds had now been addressed with the setting of a budget, an increase in the direct payments, (now set at £519.70 per week) and the involvement of the family in providing the updated assessment which took into account the extent of care provided by the parents and by the local authority respectively. It was suggested that the judicial review was otiose and the Claimant was invited to reconsider.

  12. The Claimant did not agree. In a reply dated 23rd May 2017, the challenge was maintained on the grounds of a continuing lack of clarity in relation to the budget, continuing inadequacy of provision to meet the Claimant's needs, and a continuing failure to properly identify the extent to which her parents were able to contribute to the care package. However, it was acknowledged that although judicial review claims inevitably develop whilst welfare questions are being resolved, in the light of a pending further tribunal hearing at the end of June, amended grounds would await the result of that hearing.

  13. The FTT hearing took place in July 2017. The Claimant succeeded in establishing that her placement, under the EHC plan, should be at Fix n'Kiks, along with a quantified education programme.

  14. On 6th September 2017, the Claimant was given permission to file amended grounds of review by Supperstone J. This was a far more expansive document and now relied upon five separate grounds of challenge. It was drafted by Mr David Lawson, counsel who has appeared for the Claimant on this hearing. Whilst arguments were retained in relation to the unlawfulness of earlier care plans and assessments, the current (that is 2017) assessment was the main focus of challenge.

  15. The first ground contended that the 2017 care plan continued to provide an unlawful personal budget because it was not transparent, containing a matrix allocating payments to different bands and need, and which did not afford an understanding as to how the additional direct payment of £105 had been arrived at. The second ground contended that the personal budget and direct payment even on the revised assessment did not adequately cover the Claimant's needs, with insufficient allowance made for the amount of extra support which she required at home, and which mother could not provide. However, central to the challenge was the continuing failure to provide for payment in relation to the cost of CP's placement at Fix n'Kiks, and the cost of travel to the placement.

  16. The third ground again challenged the approach to family support, in other words repeating the criticism of the 2016 assessment that too much reliance had been placed upon the Claimant's mother. This was in breach of the eligibility regulations, and made the assessment unlawful, although the real thrust of the challenge related to an unreasonable expectation of familial support for care.

  17. Grounds four and five were additional grounds. In ground four there was a criticism of the way in which the local authority has integrated its services in respect of educational and care provision, as exemplified by the fact that it had been necessary to pursue a two-pronged challenge to both the FTT and the Administrative Court contrary to the guidance which had been provided under the Care Act 2014. It was asserted that there was still no provision for CP's attendance at Fix n'Kiks, or transport to the placement.

  18. The final challenge (ground five) was entitled ``recompense of expenditure'' and was a monetary claim alleging a breach of Article 2 Protocol 1 (abbreviated to A2P1) of the European Convention in respect of a...

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