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||Neutral Citation Number:  EWHC 1932 (Admin)
||Case No: CO/3648/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||8 September 2005
B e f o r e :
MR JUSTICE RICHARDS
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Stephen Cragg (instructed by Disability Law Service) for the Claimant
Christopher Baker (instructed by Medway Legal Services) for the Defendant
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE RICHARDS:
- The claimant, BG, is a three year old boy with severe mental and physical disabilities. His condition includes four limb cerebral palsy, epilepsy, asthma, and sleep problems. He needs assistance with all aspects of daily living and mobility. He lives at home with his parents and an elder brother and younger sister, and the family's hope and intention is that he should continue to live at home indefinitely. At present, however, the family is suffering from sleep disruption and is becoming exhausted and emotionally drained because there is insufficient space in the home to cater adequately for his needs. There is an established need for adaptations to the home to provide more space, so as to enable him to have his own room, to provide sufficient storage space for all the necessary equipment and to provide room for his treatment, such as daily physiotherapy. The adaptations will cost about £65,000. The present proceedings, which the claimant brings by his father as litigation friend, are directed towards one of the ways in which it is proposed to meet that cost.
- The defendant council proposes that the cost should be met in three ways:
i) It has approved a disabled facilities grant ("DFG") in the statutory maximum sum of £25,000. This followed a means test that showed that BG's parents were not liable to make any contribution to the works. BG's father earns £14,000 per annum and is in receipt of child tax credit (with family, child, disability and severe disability elements). There is no issue about the DFG.
ii) It has agreed to make a discretionary non-repayable grant of £10,000 from its social services top-up fund, which is said to be the "maximum … available from social services within current policy". Although comment is made on the claimant's behalf that the details of the policy have not been disclosed and no explanation has been given as to why a greater sum cannot be provided in this way, the maximum limit applied by the council is not the subject of challenge.
iii) It has offered to fund the shortfall, up to a maximum amount of £30,000, by way of financial assistance in the form of a secured loan on specified conditions. No complaint is made of the principle of proceeding by way of a secured loan. But the claimant's parents object to certain of the conditions, and the issue in these proceedings is whether those conditions are lawful.
- The offer of financial assistance to fund the shortfall is contained in a letter dated 24 January 2005 from the council to BG's father. The relevant terms of the offer are these:
"In view of the fact that there is a shortfall and you are unable to provide this from your own funds due to your financial circumstances, the council is prepared, in this instance, to fund the shortfall up to a maximum amount of £30,000 so as to enable [BG] to be cared for in his own home. The offer of financial assistance is therefore subject to the following conditions:
5. the sum of £30,000 to be secured by way of second legal charge on [the family home] for a period of 20 years. The council will not seek repayment of this sum unless one of the following events occur within the period of 20 years, in which case the council may require repayment together with interest. The events are:
5.1 you fail to comply with any term, condition, covenant or provision of, or to perform any obligation or liability under the legal charge;
5.2 any representation or warranty given by you to the council in connection with this matter is incorrect or found to be incorrect;
5.3 the first mortgagee or another mortgagee takes possession of the property or exercises its power [of] sale;
5.4 a bankruptcy order is made against you or you enter into a voluntary arrangement with your creditors under Part VIII of the Insolvency Act 1986;
5.5 there is a disposal of the property either by way of sale, lease or the parting with possession or occupation;
5.6 [BG] no longer permanently resides at the property or dies.
Providing none of the above events occur, then the legal charge will be discharged after a period of 20 years without any requirement for you to repay the monies, other than the cost of redemption."
- The offer was followed by a lengthy exchange of correspondence, in which concerns were expressed by BG's parents about some of the terms of the loan and various legal objections were raised, first by the parents' original solicitors and then by their present legal advisers, to whom they had switched by early March 2005. It is unnecessary to examine the details of that correspondence. As matters have developed, objection is now taken to (a) the length of the 20 year term, (b) the fact that the council may require repayment of the sum if BG ceases to reside permanently at the property or dies, and (c) the fact that the council may require payment of interest on any amount repayable. As to (c), it appears from other documents and from information provided at the hearing that the interest would be simple interest at 2% above NatWest base rate from time to time and would run from the date of the deed.
- The council's position can be extracted in part from the exchange of correspondence to which I have referred, but is most conveniently set out in a witness statement of Jackie Challis, the council's Disability Support Manager. That witness statement recites the history of the matter and the context within which the offer was made. It states that the number of disabled people in Medway is about 4,855 and that the council received 1,572 referrals in 2004/05 for assessments and service provision for people with disability. The annual social services budget for discretionary loan and grant assistance for all disabled people is only £200,000 (though the total social services budget for providing services to disabled people is not in evidence). Having referred to the DFG of £25,000 and the top-up grant of £10,000 agreed in relation to the claimant, it continues:
"49. Where the costs of adaptations exceed both the maximum DFG and the top up grant the Council does, in exceptional cases, offer a discretionary loan, which, if the applicant is assessed as having a nil contribution for DFG purposes, does not have to be repaid unless one or more of a number of specified events occur within a period of 20 years from the grant of the loan. These loans are generally secured by way of legal charge against the property, which benefits from the adaptations. There is no blanket policy in this respect, or in relation to the terms of the loan. While the Council has endeavoured to achieve consistency between cases, it would be prepared to make an exception if the occasion required this. The Council can require repayment of the loan if any of the specified events occur during the term. These are as follows - that the applicant fails to comply with the covenants or misrepresents, the property is repossessed by another mortgagee, the applicant becomes bankrupt, he or she disposes of the property, or the person for whom the [benefit] of the adaptations is intended no longer permanently resides at the property or dies.
50. The terms of the loan are to ensure that the financial assistance is used for the purpose for which it was intended. In view of the large amount of public funds involved, the Council believes that it has a duty to protect its position in terms of value received, otherwise it could be said that the Council had not made the best use of public funds. Additionally, the Council could be criticised for enhancing the value of a third party's property, by providing the means for an extension to be built, but without taking any security. Mr G will benefit in terms of increased value to the property created by the addition of an extension together with amenities.
51. The £30,000 loan offered by the Council represents a substantial part of the Council's entire budget for disabled people in the Medway area. It is a considerable sum aimed at securing in the long term a home for B. The term of 20 years reflects this important consideration.
52. The form of legal charge used for this type of assistance includes a provision for payment of interest if the monies become repayable and are not paid on demand. To date, in cases where this type of assistance has been given, none of the specified events have occurred in any of the cases and therefore no monies have so far become repayable. Should an event trigger the obligation to repay, Mr G and his family's personal and financial circumstances will be carefully considered with a view to reaching an agreement as to how any repayment should be made and whether or not any interest should be applied. The Council will not act unreasonably by insisting that should the relevant event of concern occur, the loan monies should be repaid immediately or on terms that would result in financial hardship to the family.
54. The funding for adaptation to the property is to meet B's needs in the family home, the family having made clear their wish not to move to other accommodation. The loan was designed to facilitate B's continued occupation of the home on a long-term basis. It is accordingly appropriate to include conditions, amongst others, requiring his continued occupation in order that the purpose of the funding be achieved. In the context of long-term assistance, and given the total amount of public money involved in the adaptations, it was not unreasonable for the conditions (as a whole) to continue over a period of 20 years.
55. There is no immediate obligation on Mr G to make payments to the Council. The Council has reassured Mr G that in the event of the matter of concern occurring, it would take into account the family personal and financial circumstance in making its decision on payment of the loan. The Council would seek to agree terms of payment with Mr G that will not result in undue hardship to him and his family. Equally, the events of concern may not occur and at the expiry of the 20 years terms, the loan will be automatically discharged with no obligation to pay the sum.
56. The Council feels it has recognised the stresses and complexities facing the G family and has tried to make every effort to work with the family to find a suitable solution."
- The claim was issued on 6 June 2005. There was an application for urgent consideration, which prompted Lightman J to grant permission without waiting for the council's acknowledgement of service, and to give directions for an expedited hearing of the case. The council subsequently filed an acknowledgement of service, raising issues as to delay and a statutory complaints procedure which it will be necessary to consider. Because of the course that the proceedings have taken, however, Mr Baker for the council very sensibly accepted that it was appropriate for the court now to determine the substantive issues that are before it. In the circumstances I propose to deal first with the substance of the case and to make certain comments on the issues of delay and alternative remedies at the end of this judgment.
- Section 2(1) of the Chronically Sick and Disabled Persons Act 1970 ("the 1970 Act") provides:
"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 -
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
then … it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
- By section 28A of the 1970 Act, section 2 applies with respect to disabled children in relation to whom a local authority has functions under Part III of the Children Act 1989 ("the 1989 Act") as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies. The effect of these statutory provisions is that local authorities must comply with the requirements of section 2 of the 1970 Act, in so far as they apply to disabled children, by the exercise of their functions under Part III of the 1989 Act, of which section 17 is particularly relevant: see R (Spink) v. Wandsworth London Borough Council  EWCA Civ 302,  2 All ER 954, para 35.
- Section 17(1) of the 1989 Act imposes on local authorities a general duty to safeguard and promote the welfare of children within their area who are in need, by providing a range and level of services appropriate to those children's needs. By subsection (10)(c), a child shall be taken to be in need if he is disabled. Subsection (2) provides that, for the purpose of facilitating the discharge of the general duty, every local authority is to have the specific duties and powers set out in Part 1 of Schedule 2, which include, in paragraph 6 of Part 1, the duty to provide services designed (a) to minimise the effect on disabled children of their disabilities and (b) to give such children the opportunity to lead lives which are as normal as possible. By subsection (3), any service provided by an authority in the exercise of the functions conferred on it by the section may be provided for the family of the child in need, if it is provided with a view to safeguarding or promoting the child's welfare. Subsections (6) to (9) provide:
"(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
(7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or its value (in whole or in part).
(8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.
(9) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support under Part VII of the Social Security Contributions and Benefits Act, or any element of child tax credit other than the family element, of working tax credit or of an income-based jobseeker's allowance."
- Section 29 of the 1989 Act provides that where a local authority provides a service under section 17, other than advice, guidance or counselling, it may recover from, inter alia, the parents of a child under 16 such charge for the service as it considers reasonable.
- DFGs are covered by a separate statutory regime, under the Housing Grants, Construction and Regeneration Act 1996, the details of which are not needed for present purposes.
The claimant's submissions
- Mr Cragg advances seven submissions, whilst acknowledging that there is some overlap between them.
- The first submission is that any offer of assistance should be effective in ensuring that the needs of BG are met. The council, having concluded for the purposes of section 2(1)(e) of the 1970 Act that the claimant has a need for assistance in relation to the adaptations of his home, has a duty to provide such assistance. The fact that the claimant's parents cannot accept the conditions of the loan offer does not absolve the council of that duty (though Mr Cragg appeared to accept, by analogy with R v. Kensington and Chelsea London Borough Council, ex parte Kujtim  4 All ER 161, that the parents' unreasonable refusal of an offer might entitle the council to treat the duty as discharged).
- In my judgment that submission cannot assist the claimant. The existence of a duty is not in dispute. Equally it is not in dispute that the council has a discretion as to how to perform that duty. The real question in these proceedings is whether the conditions of the loan offered by the council in the exercise of its discretion are lawful. The fact that BG's parents objects to them does not determine the answer to that question. Mr Baker referred in that respect to an observation of Moses J in an analogous situation in R (Mohammed) v. Brimingham City Council  EWHC 1511 (Admin),  BLGR 238, at para 55:
"The Council has wide powers from which it can choose how to meet a child's needs. It does not seem to me that a permissible offer to fund the return of the family to meet the needs of the children becomes impermissible because the offer is rejected."
If the conditions are held to be unlawful, the council will have to consider alternative ways in which to discharge its duty. But if the conditions are held to be lawful, BG's parents will have to make a final decision whether to accept the loan on those conditions. Although it will be a matter for them, I have to say that acceptance of the loan in those circumstances would seem to me to be the obvious course, as being in the best interests of BG and of the family as a whole. I would therefore hope that the legal consequences of refusal of the loan will remain an academic question. In any event it is a question that has not yet arisen for decision.
- Mr Cragg's second submission is that the relevant conditions are unreasonable. The council's only stated purpose for imposing them is to "ensure that the financial assistance is used for the purpose for which it was intended", but no explanation has ever been given of how the conditions could meet that purpose. The effect of condition 5.6, that liability to repay is triggered by BG's death, cannot meet that purpose, since BG's parents have no control over when he will die; and whenever he dies, he will be able to benefit from the adaptations until that time and no longer. Likewise the condition in 5.6 that BG remains resident in the home cannot meet the purpose. The only realistic situations in which he will leave the home (apart from sale of the house, which is covered separately by condition 5.5) are if it becomes impossible for his parents to care for him at home, if the council concludes that it is in his best interests to be cared for in a residential setting, or if at the age of 18 he has capacity to make decisions and chooses then to live away from home. In each case his parents will have little or no control over the situation. The condition might even have adverse effects on BG and his care, in that it might put pressure on his parents to try to keep him at home in order to prevent repayment of the loan.
- In my judgment the conditions are reasonably related to the purpose for which the financial assistance is being provided, namely to enable BG to live at home (or, as it is put in para 54 of Ms Challis's witness statement, "to meet B's needs in the family home" and "to facilitate B's continued occupation of the home on a long-term basis"). BG's residence at home is fundamental to that purpose, and the purpose plainly ceases to be met if BG ceases to live at home, whether as a result of his death or because he goes to live elsewhere. It is reasonable for the council to make provision for repayment in those circumstances, especially in view of the council's limited financial resources and its overall responsibilities: if a loan can be recovered when it is no longer achieving its purpose, the money can then be used to assist others in need. Nor is that course rendered unreasonable by the risk (which I consider to be a remote risk in practice) that the liability to make repayment in the event of BG leaving home may give rise to tensions and pressures on his parents.
- Although this was not part of the case advanced on the claimant's behalf, I did raise with Mr Baker a concern I had about the "all or nothing" nature of the repayment conditions. If, for example, BG moves away from the home after 19 years, the entire loan is repayable; whereas if he stays at the home for 20 years, none of it is repayable. It might be said that the purpose of the loan had been substantially fulfilled after 19 years and that it was disproportionate to recover the entire loan in the event of BG moving away from the home at that point. Mr Baker accepted that a more complex system of repayment, whereby the amount repayable was subject to a sliding scale over time, would have been possible, but he submitted that it was reasonably open to the council to adopt the simple model proposed. He referred to the existence of a similar "all or nothing" approach under the DFG legislation and in other statutory contexts. It seems to me that, the longer the period over which the conditions apply, the more problematic such an approach becomes and the harsher it may be in its practical application. Nevertheless I do not think that the position adopted in this case is so extreme as to be unlawful. I accept Mr Baker's submission that the adoption of the simple model was within the range of options reasonably open to the council.
- The third submission for the claimant is that it is unreasonable to require the payment of interest on the loan on the occurrence of an event triggering liability to repay the loan itself, and especially where that event is one over which BG's parents have no control (as in the case of the condition 5.6 events).
- It seems to me that there can be no objection in principle to a requirement that interest be paid on the principal sum repayable under the loan. Such a requirement ensures that the monies repayable retain their value in real terms. No objection is made to the specific rate of interest.
- Mr Cragg at one point described the payment of interest as a penalty on the parents' inability to repay the principal sum on the occurrence of a triggering event. At that point he understood interest to run from the date when repayment fell due, rather than from the date when the loan was made. The fact that interest would be payable over the entire period of the loan tells against the particular way in which the matter was put by Mr Cragg but adds to the general concern expressed about the parents' inability to pay. That concern, however, is in my judgment met by what the council has said about the approach it would adopt to the whole question of repayment, whether of the principal sum or of interest. The council has made clear, both in Ms Challis's witness statement (see especially paras 52 and 55) and in previous correspondence which it is unnecessary to recite, that if an event triggering a liability to repay should occur, it will have regard to the family's personal and financial circumstances at that time in determining whether and on what terms to require repayment and will not act unreasonably by insisting on repayment immediately or on terms that would result in financial hardship to the family. Those statements, which are sufficient to found a legitimate expectation as to the council's future conduct, reinforce the general obligation of the council to act reasonably in relation to the recovery of sums due and the specific protection conferred by section 17(9) of the 1989 Act (which precludes repayment while BG's parents are in receipt of statutory benefits).
- Having regard to those considerations, I am satisfied that the liability to pay interest if the principal sum becomes repayable is not only reasonable in principle but is also reasonable in the particular circumstances of the case.
- The fourth submission for the claimant concerns the 20 year period of the loan, which is said to be unreasonably long and out of all proportion to the council's need to protect its funds. The period is contrasted with the 5 year maximum under the DFG legislation (see sections 21(2)(b) and 44(3)(a) of the Housing Grants, Construction and Regeneration Act 1996). Attention is also drawn to the observation by a consultant paediatrician, in a letter dated 10 June 2005, that BG's problems "are likely to shorten his life".
- Mr Baker's response on behalf of the council is that the period chosen reflects the fact that the adaptations to the family home are intended to provide a long-term solution for BG's needs. There is nothing to show that 20 years is an unduly long period in terms of BG's life expectancy. There is no actual figure for life expectancy in evidence, and the same consultant paediatrician who referred to the likelihood of a shortened life had previously talked in terms of BG's dependency "in the long term" (report of 2 July 2004). No direct comparison can be made with the DFG legislation, which forms part of the body of housing law rather than social security law. The default grant condition period of 5 years under the 1996 Act was generally applicable to a wide range of grants available under that Act. The need for caution in comparing the two sets of legislation is apparent from the analysis of Dyson J in R v. Birmingham City Council, ex parte Mohammed  3 All ER 788.
- I accept Mr Baker's submissions on this issue. In my judgment the 20 year period, though long, cannot be said to be unreasonably long in the particular circumstances of BG's case. It is a reasonable reflection of the long-term purpose for which the adaptations to the family home are to be carried out.
- The fifth submission made by Mr Cragg is that the council has adopted a blanket policy and has given insufficient consideration to the particular situation of BG and his family. This stems from what was said in a letter dated 11 February 2005 from Ms Graham, one of the council's property lawyers, to the solicitors then acting for the claimant's parents:
"… Offers of such additional loans (which incidentally are only granted in exceptional cases) are all subject to a 20 year legal charge because of the large amount of public money involved and the fact that the council has an obligation to safeguard its interests in allocating such monies. The council also has a duty to exercise consistency in its dealings with those seeking such assistance and cannot make any exceptions. Therefore there can be no reduction in the term."
- When the parents' present legal representatives alleged the existence of a blanket policy, Ms Graham replied by letter dated 11 April 2005 in these terms:
"No blanket policy has been applied by the Council in relation to the 20 year period during which the loan conditions apply. The situation has in fact arisen in only 4 or 5 cases to the Council's knowledge, and there is no written policy to this effect. As a general rule, the Council has striven to achieve fairness by consistency between these cases. If circumstances justified an exception being made in a particular case, however, this could and would be considered, though the present case does not raise any matters which are exceptional. In so far as my letter of 11 February 2005 … suggested that no exceptions could be made this was expressed poorly; and upon reflection and further consideration of the point with my client department my letter was incorrect as expressed in that way."
- The council's endeavour to achieve consistency between cases, but willingness to make an exception if the case required it, is reiterated in para 49 of Ms Challis's witness statement, quoted above. That witness statement also shows, as it seems to me, that the council has given careful consideration to the individual circumstances of the claimant's case when deciding whether to apply its normal terms to the loan offer.
- Mr Cragg nonetheless submits that, despite the council's subsequent statements that exceptions are possible, there is no written policy or indication of how exceptions are identified, and it is not clear whether the decision was made by the legal department or the social services department. In any event, he submits, the reality is that the council applies the same loan conditions to all recipients. It has fallen into the same error as the council in R (Stephenson) v. Stockton on Tees Borough Council  EWCA Civ 960 in treating a policy as a rule and failing to exercise its discretion or engaging in a flawed exercise of discretion.
- I reject those submissions. It is true that the council's letter of 11 February 2005 used language that was suggestive of the same kind of error as occurred in Stephenson. But the language was corrected, in a way that showed the council to be fully aware of the need to consider the individual circumstances of each case and to avoid the application of an inflexible rule. I am satisfied on the evidence that the council has approached the claimant's case properly. It has considered whether the circumstances justify an exception to the terms normally applied, but has reasonably concluded that they do not.
- The sixth submission advanced by Mr Cragg is that the council has not had proper regard to the means of the claimant's parents when setting the conditions. Had it had proper regard to their means, it would have realised that they could not reasonably accept conditions that could make them liable for payment of the loan plus interest at some unknown point in the next 20 years, in particular where that could be triggered by events over which they had no control.
- In my judgment that submission is plainly unsustainable. There is abundant evidence showing that the council has had full regard to the parents' means in relation to the conditions of the loan as well as in relation to other aspects of the assistance to be provided (in particular, the DFG, where there was a specific means test). It has also made clear its intention to continue to have regard to the parents' means if a liability to repay is triggered in future years. The parents' reluctance to commit to a loan on these conditions does not begin to show that the council has failed to consider their position.
- The seventh submission is that the council's conduct is incompatible with BG's rights under Article 8 ECHR and therefore unlawful under section 6 of the Human Rights Act 1998. For a statement of relevant principles, Mr Cragg cites the ECtHR's decision on admissibility in Sentges v. The Netherlands (application no. 27677/02):
"The Court has previously held that private life includes a person's physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings ….
In the instant case the applicant complained in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves …
The Court has held that Article 8 may impose such positive obligations on a State where there is a direct and immediate link between the measures sought by an applicant and the latter's private life …. However, Article 8 does not apply to situations concerning interpersonal relations of such broad and indeterminate scope that there can be no conceivable link between the measures the State is urged to take and an individual's private life …. The Court has also held that Article 8 cannot be considered applicable each time an individual's everyday life is disrupted, but only in exceptional cases where the State's failure to adopt measures interferes with that individual's right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life."
- It is submitted that BG's needs are so severe as to trigger the positive obligation to provide assistance under Article 8 as described in Sentgens, and that the imposition of unreasonable or unnecessary conditions upon the assistance deemed appropriate to meet the Article 8(1) requirement constitutes a disproportionate interference with BG's rights and is therefore unlawful. The court is concerned in this case with family life as well as private life. It is not limited to considering whether the conditions are Wednesbury unreasonable but must carry out its own balancing exercise in order to determine whether the conditions are really necessary or whether something less onerous could be put in place.
- In addition, there is a claim for damages pursuant to section 8 of the Human Rights Act 1998 for action incompatible with Article 8, in particular for the delay said to have been caused through the insistence on imposing unreasonable and unnecessary conditions upon the loan offer. Reliance is placed on the principles set out in R (Bernard) v. London Borough of Enfield  EWHC 2282 (Admin),  UKHRR 148.
- For the council, Mr Baker submits that reliance on Article 8 does not advance the claimant's case. The application in Sentjes itself was held to be inadmissible having regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and the particularly wide margin of appreciation enjoyed by States in the assessment of priorities in the context of the allocation of limited State resources. The Court of Appeal in Anufrijeva v. Southwark London Borough Council  EWCA Civ 1406,  QB 1124, emphasised in para 43 how limited will be the circumstances in which Article 8 engages a positive obligation to provide welfare support (though it observed that Article 8 may more readily be engaged where a family unit is involved and that, where the welfare of children is at stake, it may require the provision of welfare support in a manner which enables family life to continue). In any event, the issue here is not whether there is a positive obligation to provide assistance, but whether the terms on which such assistance is offered give rise to a breach of Article 8. It is submitted that, if the terms are otherwise lawful, the offer of a loan on those terms cannot represent an interference with BG's rights under Article 8(1); and even if they did, they would be justified under Article 8(2) having regard to the fair balance to be struck between the needs of BG and the needs of others in the context of the limited resources available to the council.
- I accept Mr Baker's submissions on this issue. In my judgment the facts of the case get nowhere near establishing a breach of Article 8. The conditions of the loan offer are, as I have held, otherwise lawful. It is up to BG's parents whether to accept the offer: the council cannot force them to do so. If they accept it, it will enable BG's needs to be met within the family home and no question of interference with his private or family rights will arise. If they refuse it, the council will have to consider the consequences for BG and its own legal position in the light of that refusal. None of that can possibly render it a breach of Article 8 to make the offer that has been made.
- In the absence of any breach of Article 8, the claim for damages falls away, but I should make clear that in my view, having regard in particular to the principles set out in Anufrijeva, this would have been a wholly inappropriate claim for damages in any event.
- In my view time began to run from the offer letter dated 24 January 2005 and the claim was filed well outside the 3 month time limit for judicial review. It was implicit, however, in the grant of permission by Lightman J that he also granted an extension of time. The claim form had drawn attention to the issue of delay, seeking an extension of time and stating that "delay has been caused by seeking to clarify the Defendant's position and to negotiate the content of the conditions to be met". In the accompanying application for urgent consideration it was submitted that "as both parties have set out fully their interpretation of the legal position, this is an appropriate case for the grant of permission to be considered immediately without the need for the Defendant to file an acknowledgement of service". It appears that Lightman J accepted those submissions.
- The result of this was that permission had been granted before the council's acknowledgement of service had been filed or the time for filing it had been expired. Yet the acknowledgement of service, when subsequently filed, contained detailed grounds as to why time should not be extended and permission should be refused on grounds of delay. The council has expressed understandable concern about the fact that the issue of delay was resolved against it at the permission stage without its representations being taken into account.
- In my judgment it is only in a truly exceptional case that it could be appropriate to grant permission without giving a defendant an opportunity to make representations, whether on the issue of delay or otherwise. The main purpose of providing for an acknowledgement of service is to give an opportunity for such representations to be made. In a case of urgency, the time for filing an acknowledgement of service can be abridged. The greater the degree of urgency, the more heavily the time can be abridged. It is better to abridge time, however heavily, than to deny the opportunity to make representations altogether. It is true that, if denied that opportunity at the permission stage, a defendant may be able to apply to have permission set aside or may still be able to advance the points at the substantive hearing; but those are far from adequate substitutes for the opportunity to argue that permission should be refused in the first place.
- Having made those observations on the question of principle, I do not need to take the matter any further in the circumstances of the present case, since Mr Barker did not seek at the substantive hearing to have permission set aside. As it happens, having considered the full chronology and the representations of both sides on the question of delay, I would have held in favour of an extension of time in any event and would have refused any application to set aside the grant of permission on the ground of delay alone. That does not, however, diminish in any way the general importance, as I see it, of allowing a defendant to put forward its case before the question of an extension of time is decided.
Statutory complaints procedure
- The procedure adopted at the permission stage had the further unfortunate consequence that an issue as to an alternative procedure was not considered by the court at the time when it should most appropriately have been considered. The council's acknowledgement of service raised the question whether the claimant should have used the statutory complaints procedure that is available in a case of this kind. But because no reference was made to that procedure in the claim form or the application for urgent consideration, the issue was not considered by the court before permission was granted. (It seems to me to be a fair inference that the issue was not considered at that stage even though, out of fairness to the claimant, I should note that the point was raised in the council's letter of 11 April 2005 which was included in the list of essential reading.)
- There was some discussion at the hearing about the precise nature of the procedure available in this case. Very helpfully, counsel subsequently submitted an agreed written note. The position is that a complaint about the discharge of the council's social services functions under section 2(1)(e) of the 1970 Act is subject to the procedure under the Complaints Procedure Directions 1990, issued by the Secretary of State under powers conferred by the Local Authority Social Services Act 1970; and complaints or other representations about the discharge of the council's functions under Part III (including section 17) of the 1989 Act are subject to the procedure under the Representations Procedure (Children) Regulations 1991, made under the 1989 Act. Accordingly in a case where, as here, the council has a duty under section 2(1)(e) of the 1970 Act which it is discharging by means of the exercise of functions under Part III of the 1989 Act, either procedure might be said to apply.
- The procedure under the 1991 Regulations is broadly similar to that under the 1990 Directions. Differences include the absence of any informal stage of dealing with a complaint under the 1991 Regulations (cf. article 5(1) of the 1990 Directions), and the need under the 1991 Regulations to appoint an independent person to take part in the consideration of the representations in the first instance (i.e. at the stage before they may be referred to a panel).
- In outline, the procedure under the 1991 Regulations includes:
i) Where representations are received by the authority under regulation 4, they must appoint an independent person to take part in the consideration of the representations (regulation 5). An independent person means a person who is neither a member nor an officer of the authority (regulation 2(1)).
ii) The authority must consider the representations with the independent person within 28 days, and formulate a response (regulation 6(1)). The independent person has to take part in any discussions held by the authority about any consequent action to be taken (regulation 6(2)).
iii) The authority must give notice of the proposed result of their consideration of the representations, and of the right to have the matter referred to a panel (regulation 8(1)).
iv) Within 28 days of that notice, a request may be made to refer the matter to a panel to be appointed (regulation 8(2)). The panel has to meet within 28 days of receipt by the authority of the request (regulation 8(4)).
v) The panel has to consist of at least one independent person (regulation 8(3)).
vi) At the meeting, the panel must consider any oral or written submissions (regulation 8(5)). If the independent person on the panel is different from the independent person at the earlier stage in the procedure, the panel must also consider any oral or written submissions by that person (ibid.).
vii) The panel must decide on their recommendations, and record them with reasons in writing within 24 hours (regulation 9(1)). Notice must be given to the interested parties (regulation 9(2)).
viii) The local authority, together with the independent person on the panel, must consider what action if any should then be taken, and the independent person must take part in any discussions about such action (regulation 9(3)).
- Mr Baker submits that the claimant should have used the statutory procedures rather than bringing the complaint straight to the court. He refers to the strong guidance given by the Court of Appeal in R (Cowl) v. Plymouth City Council  1 WLR 803, in particular at para 14:
"It appears that one reason why the wheels of the litigation may have continue to roll is that both parties were under the impression that unless they agreed otherwise the complainants were entitled to proceed with their application for judicial review unless the complaints procedure on offer technically constituted an 'alternative remedy' which would fulfil all the functions of judicial review. This is too narrow an approach to adopt when considering whether an application for judicial review should be stayed. The parties do not today, under the CPR, have a right to have a resolution of their respective contentions by judicial review in the absence of an alternative procedure which would cover exactly the same ground as judicial review. The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process. The disadvantages of doing so are limited. If subsequently it becomes apparent that there is a legal issue to be resolved, that can thereafter be examined by the courts which may be considerably assisted by the findings made by the complaints panel"
- Reliance is also placed on what was said in R v. Devon County Council, ex parte Baker  1 All ER 73 at 91 about the appropriateness of using a statutory complaints procedure where the central complaint is in reality about the substantive merits of the decision.
- In my judgment there is considerable force in the council's contention that the right course in this case would have been to use the statutory complaints procedure rather than to bring proceedings for judicial review. That would have been an appropriate procedure for consideration of the worries expressed by BG's parents as to the burdensome nature of the conditions of the loan offer. Mr Cragg expressed concern about the time that it would have taken to go through the complaints procedure; but in my view the overall time-scale laid down for the complaints procedure is an acceptable one, and it is hardly open to the claimant to raise such a point on time when it took some 4½ months to bring the proceedings for judicial review. Mr Cragg also expressed concern that the outcome of the complaints procedure, if favourable to the claimant, would not be a binding decision but a recommendation to the council's director of social services. It was suggested, by reference to the history of the case, that the director might be resistant to any such recommendation. For my part, however, I see no reason to believe that a recommendation would be approached otherwise than in good faith and with an open mind.
- Again, it is unnecessary for me to reach a final decision on the issue of the complaints procedure. Mr Baker accepted that, since the case had got to a substantive hearing, the right course now was for the court to decide it rather than to stay the proceedings to enable the claimant to pursue the complaints procedure. The views I have expressed on the subject, however, serve to underline the importance of giving a defendant an opportunity to make representations before a decision is reached on the grant of permission. It is at the very least possible that, if the council's case on the complaints procedure had been considered, the court would have refused permission in this case on the ground that it was inappropriate for the claimant to apply for judicial review without having used the complaints procedure.
- Having dealt with the issues of delay and the complaints procedure, I return to my conclusions on the substance of the case. For the reasons I have given, the claim must be dismissed.
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