Anne Whyte QC, sitting as a Deputy High Court Judge:
- The Claimant has the benefit of anonymity and will be referred to as JF. He has Autism Spectrum Disorder and severe learning difficulties. As a result, he requires adult residential care with specialist support.
- By his litigation friend and mother, he challenges what he says is the decision of the defendant Council ("LBM") dated 17 July 2016 to change his residential provision without a lawful statutory assessment of his needs. The Claimant's needs are, on any view, complex.
- The Claimant relies upon two grounds of review, contending that:
i) LBM failed to undertake a lawful assessment of his needs in breach of statutory duties under the Care Act 2014 ("the Act") and associated Regulations, namely the Care and Support (Assessment) Regulations 2014 SI 2827 ("the Assessment Regulations"), and the Care and Support (Choice of Accommodation) Regulations 2014 SI 2670 ("the Choice of Accommodation Regulations").
ii) LBM has unlawfully decided to change or to propose to change his accommodation from the David Lewis College ("the DL College") in Cheshire, where he has resided since 2012 to Aspen Lodge ("the Lodge") in Sussex, a residence run by Sussex Health Care ("SHC"). The Claimant contends that LBM has based its decision to prefer the Lodge unlawfully and predominantly upon a Pre-Admission Assessment dated 26 February 2016 and prepared by the Lodge. That document contains the conclusion that the Lodge is suitable and can adequately meet JF's needs. The Claimant alleges that it is an inadequate basis for moving him from his current accommodation. In order to avoid confusion with the Care Act Assessment, I shall refer to the Pre-Admission Assessment as "the Report".
- In reply, LBM deny that the needs assessment was unlawful and deny that any decision has yet been taken about JF's future placement. In oral submissions, LBM also disputed that it had yet made a final decision as to whether the Lodge could suitably meet JF's needs, submitting orally that such decisions are made at a funding panel level. LBM concedes that as in 2016, only two options remain available, namely the DL College or the Lodge. The cost of accommodating JF at the former is appreciably more expensive than at the latter.
- The dispute over whether LBM has actually made any reviewable decisions means that my summary of the background facts is more detailed than it might otherwise have been.
- Permission for Judicial Review was granted by Ms Karon Monaghan QC sitting as a Deputy High Court Judge on 20 December 2016. In granting permission, she observed that in respect of Ground 1, it was (just) arguable that the Care Act Assessment was inadequate but that this issue would inevitably need to be considered in respect of Ground 2 and that:
…..it seems clear enough that it has been decided to terminate the Claimant's current placement and the only alternative placement that has to date been identified is the one in which the Claimant (through his mother) objects. In that sense the claim is not premature.
- The Claimant seeks a declaration that the Care Act Assessment and decision to terminate his current placement are unlawful and that it would be unlawful for LBM to move JF to Aspen Lodge. The Claimant also seeks an order quashing the assessment and decision to move him and an order requiring LBM to undertake a re-assessment of needs.
- By way of application dated 22 May 2017 LBM sought to extend time for service of a witness statement from a witness called Claire Singer. She is employed by the defendant as a social worker and was the allocated social worker for JF between the dates of 28 April 2015 and 15 July 2016. She was therefore his social worker at the time of the events which form the subject matter of this judicial review. Given the significance of this case to the parties, I decided to admit the evidence with the proviso that a lack of documentation supporting some of its contents might weaken the weight that could be attached to it.
- JF is now 24 and is very vulnerable. His parents were appointed his Deputies in 2015. They are fully involved in his life and welfare. They make and wish to make an important contribution to decisions relating to their son's care and support.
- The complexities of JF's needs are set out in a large number of documents contained within the bundles, including witness statements submitted by his parents and social workers and various medical reports, all of which I have considered. I have paid close attention to the statements of his parents who of course, in addition to their own natural engagement with these issues, have been appointed to represent their son's views. There is little scope for dispute about JF's condition, which I shall briefly summarise. He faces many challenges. He is non-verbal and requires alternative communication techniques to assist with his basic communication. He is highly anxious and this is exacerbated by any change to his routine or environment, however minor. His emotions and behaviour can be disinhibited and he regularly tries to abscond. He is at risk of self-harm. He requires a high level of constant specialist care within a specialist residential setting. Ordinarily he requires 1:1 supervision but when he is away from the DL College and in the community, he requires 2:1 assistance and support. It seems to be agreed that he needs different types of therapies including speech and language ("SALT"), physiotherapy, occupational therapy ("OT") plus psychiatric input. He has previously suffered from dysphagia and any supervision of his eating needs to bear this in mind. He requires some assistance with his personal hygiene though this varies considerably. There is no dispute that the DL College has appropriately met his needs to date. LBM has in fact funded JF's access to an on-site multi-disciplinary team ("MDT") for some 15 years. Such a team includes occupational therapists, SALT therapists etc. The particular benefits of his current placement include rapid access to this on-site multi-disciplinary team (especially in response to a crisis), the provision of a Total Communication Environment ("TCE") and the access to alternative communication methods, in which the staff are trained, such as Picture Exchange Communication System ("PECS").
- His parents feel that it is notable that JF has not been detained under the Mental Health Act 1983 and attribute this to the quality of care at the DL College. They are concerned that any transition to another accommodation and in particular to the Lodge will not only risk a serious reversal of the slow progress that JF has made at the DL College but that it will harm his emotional, physical and psychological well-being and place him at a higher risk of being made subject to a MHA detention order.
- A draft Care Act Needs Assessment was prepared in late January 2016 and sent to JF's parents in March 2016. It stated that the placement at the DL College was due to terminate at the end of March 2016 and that an alternative 52 week residential placement would be identified. In the final section it said:
"Information has been provided to [JF's parents] that options need to be considered for JF, we are aware of their preference, however options are being identified and need to be considered. Information has been provided on Sussex Health Care who would be an appropriate provider to meet JF's needs"
- I asked Mr Tankel, who appeared on behalf of the defendant, what had prompted the process of conducting the Needs Assessment in 2016 as it was not evident from the papers. I was informed that it had been considered that JF was reaching a "transitional" age-related stage in a context where the DL College was in fact a college although it does have an adult provision. Later in submissions, Mr Tankel also referred to the fact that LBM wished to provide less expensive accommodation for JF because it had been assessed that he did not need on-site multidisciplinary access. No evidence was placed before me to support these assertions. I was not informed when such views had been formed or by whom.
- LBM asked JF's parents to visit the Lodge in order to consider its suitability. They visited on 3 February 2016 and came to the conclusion that it could not meet JF's needs despite the fact that the Lodge is a specialist provision for those with Autistic Spectrum Disorder.
- On 4 June 2016, over three months after its preparation, LBM sent JF's parents the Report prepared by SHC, the entity responsible for operating the Lodge. The document explained that it was designed to identify the needs of each service user at the pre-admission stage. The authors concluded on the penultimate page of the document that SHC was capable of providing a placement for JF. It was noted that funding had not yet been agreed by the purchasing authority, i.e. by LBM.
- Accordingly, by June 2016 the situation appears to have been that
i) LBM had said that JF's placement would terminate;
ii) LBM planned to move JF;
iii) an alternative service provider (SHC) had deemed itself by 26 February 2016 a suitable provider to meet JF's needs;
iv) LBM agreed that SHC could meet those needs; but
v) LBM had not yet authorised funding for the new placement.
As far as I can tell, none of that has changed and (i) to (iv) occurred before the completion of any Care Act Needs Assessment.
- JF's parents consulted solicitors because by early July LBM had not confirmed that JF's placement at the DL College would continue through the summer vacation. A letter before action dated 6 July 2016 was sent.
- On 12 July 2016, LBM responded to JF's solicitor and said:
"I confirm that the council will fund JF's placement at David Lewis College for the vacation period starting on 22 July. It remains the Council's plan to transition JF to a new permanent placement after the summer vacation. The placement being considered is Aspen Lodge, run by Sussex Health Care."
- This was promptly met with a further letter from JF's solicitor indicating that any attempt to move JF to the Lodge would be the subject of an application for judicial review. It was again alleged that the SHC Report was not fit for purpose.
- The Assessment. The Care Act Needs Assessment was finalised on 14 July 2016 and sent to JF's solicitors on 25 July. It is that assessment which is challenged under Ground 1 of these proceedings and I deal with its detailed contents later in this judgment. On page 2 it stated:
Funding was agreed for an additional two terms at college, which was due to terminate at the end of the Spring term, end of March before the Easter break, however JF's placement was extended to July 2016. An appropriate placement needs to be identified for JF to move to on a permanent basis, where his needs will be met. Mr and Mrs JF's preferred option is for JF to remain living in the DL College.
On its last page it repeated what had been said in the January draft, namely:
…the placement is due to terminate at the end of July and an alternative 52-week residential placement will be identified. Information has been provided to [JF's parents] that options need to be considered for JF, we are aware of their preference, David Lewis Residential Provision, however options are being identified and need to be considered. Information has been provided on Sussex Health Care who would be an appropriate provider to meet JF's needs. [JF's parents] are in disagreement with this.
- Further pre-action correspondence passed and on 30 August 2016 the LBM wrote to JF's solicitors and said:
The Authority remains of the opinion that Aspen Lodge is a specialist service that could meet JF's care and support needs. The Pre-Admissions Assessment for Potential Service Users completed by Sussex Health Care indicates that they are able to do so"
- LBM offered JF's parents, in the light of their ongoing concerns, the option of a more in-depth assessment from the Lodge in the form of a short residential assessment. JF's parents considered that it would not be in JF's interests to have his routine dramatically disrupted for the sake of such a short-term transition and in circumstances where JF's likely disturbance would affect the quality of the assessment. They therefore declined this offer. It is not submitted that this was unreasonable. Instead the parents suggested that the Lodge staff re-visit JF in the setting of the DL College and conduct a fuller assessment in order to establish whether or not the Lodge really could meet his needs. Mr Tankel, confirmed that this suggestion was rejected by LBM because it was considered that an adequate assessment on site had already taken place i.e. the SHC Report.
- Meanwhile the impasse continued. LBM justified the quality of the SHC Report. It indicated that that a more in depth assessment would arise later in a detailed care plan once the service user started to receive services and that the purpose of the assessment at that stage was specifically to identify whether needs could be met, not precisely how they would be met.
- Judicial review proceedings were issued in October 2016. As I have indicated, JF remains accommodated at the DL College. LBM have continued to make enquiries of other service users. The reality, as both parties before me agreed, is that, (as at the permission stage), there are still only two contenders: the DL College or the Lodge. This, in my view, reflects the complexity of JF's needs. The statement of Claire Singer dated 22 May 2017 says at paragraph 17:
…it may be helpful if an explanation as to how a decision is ultimately made that a provider can meet need in respect of Sussex Health Care. In the first instance, placements cannot progress until they have been presented to the Funding Panel, which meets every Monday. The Panel comprises a manager, senior manager, member of Brokerage and representative from Occupational Therapy. The role of the Panel is to scrutinise proposed placements, to ensure not only that it is cost effective but it meets the person's needs.
THE LEGISLATIVE FRAMEWORK
- Section 1 of the Care Act 2014 "the Act" provides as follows [emphasis in bold]-
1 Promoting individual well-being
(1) The general duty of a local authority, in exercising a function under this Part in the case of an individual, is to promote that individual's well-being.
(2) "Well-being", in relation to an individual, means that individual's well-being so far as relating to any of the following—
(a) personal dignity (including treatment of the individual with respect);
(b) physical and mental health and emotional well-being;
(c) protection from abuse and neglect;
(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);
(e) participation in work, education, training or recreation;
(f) social and economic well-being;
(g) domestic, family and personal relationships;
(h) suitability of living accommodation;
(i) the individual's contribution to society.
(3) In exercising a function under this Part in the case of an individual, a local authority must have regard to the following matters in particular—
(a) the importance of beginning with the assumption that the individual is best-placed to judge the individual's well-being;
(b) the individual's views, wishes, feelings and beliefs;
(c) the importance of preventing or delaying the development of needs for care and support or needs for support and the importance of reducing needs of either kind that already exist;
(d) the need to ensure that decisions about the individual are made having regard to all the individual's circumstances (and are not based only on the individual's age or appearance or any condition of the individual's or aspect of the individual's behaviour which might lead others to make unjustified assumptions about the individual's well-being);
(e) the importance of the individual participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable the individual to participate;
(f) the importance of achieving a balance between the individual's wellbeing and that of any friends or relatives who are involved in caring for the individual;
(g) the need to protect people from abuse and neglect;
(h) the need to ensure that any restriction on the individual's rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
- The LBM in exercising its function under Part 1 of the Act (which includes conducting needs assessments) therefore has a general statutory duty to promote JF's well-being. His well-being, relevantly, includes his mental and physical health and emotional wellbeing and the suitability of his accommodation. LBM must have regard to the individual's wishes and to the need to ensure that decisions about JF are made having regard to all his circumstances.
- Section 9 of the Act provides as follows:
9 Assessment of an adult's needs for care and support
(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
(a) whether the adult does have needs for care and support, and
(b) if the adult does, what those needs are.
(2) An assessment under subsection (1) is referred to in this Part as a "needs assessment".
(3) The duty to carry out a needs assessment applies regardless of the authority's view of—
(a) the level of the adult's needs for care and support, or
(b) the level of the adult's financial resources.
(4) A needs assessment must include an assessment of—
(a) the impact of the adult's needs for care and support on the matters specified in section 1(2),
(b) the outcomes that the adult wishes to achieve in day-to-day life, and
(c) whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.
(5) A local authority, in carrying out a needs assessment, must involve—
(a) the adult,
(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.
(6) When carrying out a needs assessment, a local authority must also consider—
(a) whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and
(b) whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.
(7) This section is subject to section 11(1) to (4) (refusal by adult of assessment).
- The LBM therefore has a statutory duty pursuant to section 9(1) to assess JF's needs and where necessary identify what they are. Pursuant to section 9(4) LBM must assess the impact of his care and support needs on his well-being. This means that the assessment must determine how those assessed needs impact upon his mental and physical and emotional wellbeing and the type of suitable accommodation he therefore requires.
- Additionally, LBM has a mandatory duty to assess JF's desired outcomes in the context of the section 1(1) duty to promote "well-being". Where, as is agreed to be the case here, the local authority is required to meet needs, it must, pursuant to section 24 (1)(a) of the Act, prepare a care and support plan or a support plan for the adult concerned. Here, a care and support plan was prepared and it is dated 28 April 2017. However late this plan was, it does not form part of this court's review. Under section 25 of the Act a Care and Support Plan is defined as a document which fulfils certain functions. Amongst other things, it is a document which specifies the needs assessed by the needs assessment, specifies which of those needs it is going to meet and how it is going to meet them and includes the personal budget for the adult concerned. The Claimant alleges that the delay in producing the Care and Support Plan is unreasonable. The reason for the delay remains unclear. Mr Tankel submitted that owing to the unresolved nature of the situation, the document was, essentially, "holding" one. As I have said, it is agreed that the contents of the Care and Support Plan are not the subject of this challenge in these proceedings. I do not have to resolve these questions, therefore, but it is obviously necessary for LBM to comply with its duties under sections 24 and 25 of the Act and it is not clear to me that it has done so.
- Secondary legislation governs the procedure for the assessment required by section 9 of the Act. Regulation 3 of the Assessment Regulations provides:-
3.— Assessment – general requirements
(1) A local authority must carry out an assessment in a manner which—
(a) is appropriate and proportionate to the needs and circumstances of the individual to whom it relates; and
(b) ensures that the individual is able to participate in the process as effectively as possible.
(2) In seeking to ensure that an assessment is carried out in an appropriate and proportionate manner, a local authority must have regard to—
(a) the wishes and preferences of the individual to whom it relates;
(b) the outcome the individual seeks from the assessment; and
(c) the severity and overall extent of the individual's needs.
(3) In a case where the level of the individual's needs fluctuates, the local authority must take into account the individual's circumstances over such period as it considers necessary to establish accurately the individual's level of needs.
(4) A local authority must give information about the assessment process—
(a) to the individual whose needs are being assessed; or
(b) in the case of a child's needs assessment or a young carer's assessment, if the child or young carer is not competent or lacks capacity to understand the assessment process, to all parents of that child or young carer.
(5) The information must be provided prior to the assessment wherever practicable, and in a format which is accessible to the individual to whom it is given.
- Accordingly, the local authority is under what has been described as a "have regard to duty" to in respect of the factors identified in Regulation 3(2) of the Assessment Regulations. The assessment must be carried out in a manner which is appropriate and proportionate to JF's needs, having regard to those factors. After completing the assessment and pursuant to section 13 of the Act, the local authority has a duty to determine which of JF's needs meet the eligibility criteria and what could be done to meet those needs. In this case, it is accepted that this includes a consideration of the type of residential services required by him. This then engages a further statutory duty under the Choice of Accommodation Regulations which contain these provisions:-
2.— Choice of accommodation
(a) a local authority is going to meet needs under sections 18 to 20 of the Act by providing or arranging for the provision of accommodation of a specified type in England;
(b) the adult for whom the accommodation is to be provided expresses a preference for particular accommodation (identifiable by reference to its address or provider) of a specified type; and
(c) the conditions in regulation 3 are met,
the local authority must provide or arrange for the provision of the preferred accommodation in accordance with these Regulations.
(2) The specified types of accommodation are—
(a) care home accommodation (see regulation 6);
(b) shared lives scheme accommodation (see regulation 7); or
(c) supported living accommodation (see regulation 8).
3.— Conditions for provision of preferred accommodation
(1) The following conditions must be met for the provision of preferred accommodation under regulation 2—
(a) the care and support plan for the adult specifies that the adult's needs are going to be met by the provision of accommodation of a specified type;
(b) the preferred accommodation is of the same type as that specified in the adult's care and support plan;
(c) the preferred accommodation is suitable to the adult's needs;
(d) the preferred accommodation is available; and
(e) where the preferred accommodation is not provided by the local authority, the provider of the accommodation agrees to provide the accommodation to the adult on the local authority's terms.
(2) If the cost to the local authority of providing or arranging for the provision of the preferred accommodation is greater than the amount specified in the adult's personal budget that relates to the provision of accommodation of that type, the additional cost condition in regulation 5 must also be met
5.— The additional cost condition
(1) The additional cost condition is met if—
(a) the local authority is satisfied that—
(i) a person other than the adult, or
(ii) in a case to which paragraph (5) applies, the adult,
("the payer") is able and willing to pay the additional cost of the preferred accommodation for the period during which the local authority expects to meet the adult's needs by providing or arranging for the provision of that accommodation; and
(b) the payer enters a written agreement with the local authority in which the payer agrees to pay the additional cost.
- Therefore, the central elements of the framework are (1) the "well-being" principle (2) the assessment of needs (3) making the arrangements to meet those needs and (4) in certain cases, identifying the adult's personal budget. There is a clear statutory theme placing the individual at the heart and centre of the process so that he or she is fully involved in decision making. This is emphasised by the duty to have regard to the wishes and preferences of the individual.
THE RELEVANT LEGAL PRINCIPLES
- There is still relatively little authority concerning this part of the Care Act 2014. In R (on the application of Luke Davey v Oxfordshire County Council)  EWHC 352 (Admin) Morris J analysed some of the provisions engaged here. He found that section 1(1) and (2) impose a distinct duty upon a local authority, in each individual case, to promote the individual's well-being, including for example physical and mental and emotional well-being (or as here access to suitable accommodation). He found that section 1(3) contained a separate "have regard to" duty to the matters listed therein. He found that if the relevant local authority does not assess the matters specified in section 9(4), including the impact on "well-being" (as defined), then there is a breach of the statutory duty and he found that there is no duty to achieve the outcomes which the adult wishes to achieve; rather it is a duty to assess whether the provision of care and support could contribute to those outcomes. He went on, helpfully, at - to summarise the case law on the questions of "relevant considerations". I have removed his citation of authority and adopt his conclusions as follows:-
53. First, where there are specifically factors required by law to be taken into account, a failure to take account of such obligatory factors will necessarily vitiate the decision.
54. Secondly, there are other factors which may be taken into account (or indeed which others or the court itself would have taken into account). In such a case, a failure to take such factors into account will not vitiate the decision.
55. Thirdly, there is a class of factors which ought to be taken into account. Here a failure to take account will vitiate. Such factors have variously been described as "relevant" or "clearly relevant" or "so obviously material" to the exercise of the particular discretion such that they ought to be taken into account. Whether this element is a free standing ground of vitiation or whether it is part of the assessment of whether the decision is Wednesbury unreasonable, does not seem to me to make much difference. In my view a failure to take account of such a factor will render the decision Wednesbury unreasonable.
- The local authority is the judge of fact. The grounds upon which the court will monitor the actions of the local authority are familiar and include unreasonableness in the Wednesbury sense. To quote Lord Brightman in Pulhofer v Hillingdon BC  AC 484, 518 B-E:
Where the existence or nonexistence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely
- Community care assessments are prepared by social workers ordinarily, for the benefit of their employers. The courts have frequently said, as in R (Ireneschild) v Lambeth Borough Council  EWCA Civ 234 at  and  that community care assessments must not be subject to over-zealous textual analysis. It is not for the court to be prescriptive about the detail required in an assessment. Social workers are better placed to assess need than courts so long as they act rationally. It is not the function of the court itself to come to a decision on the merits of the decision. Parliament conferred the powers and duties applicable here to local authorities and the court's function is therefore one of review. There must be a respectful distance between the functions of the decision maker and of the reviewing court. My function is not to assess JF's needs and assess how they should be met.
- In R (P and ors) v Essex CC and ors  EWHC 2027 Munby J, as he then was, observed at :
What the claimants here seek to challenge are decisions taken by the County Council in pursuance of the statutory powers and duties conferred on it by Part III of the Act. So I am here concerned with an area of decision-making where Parliament has chosen to confer the relevant power on the County Council: not on the court or anyone else. It follows that we are here within the realm of public law, not private law. It likewise follows that the primary decision maker is the County Council and not the court. The court's function in this type of dispute is essentially one of review — review of the County Council's decision, whatever it may be — rather than of primary decision making. It is not the function of the court itself to come to a decision on the merits. The court is not concerned to come to its own assessment of what is in these children's best interests. The court is concerned only to review the County Council's decisions, and that is not a review of the merits of the County Council's decisions but a review by reference to public law criteria: see A v A Health Authority, In re J (A Child) , R (S) v Secretary of State for the Home Department  EWHC 18 (Fam/Admin),  Fam 213 , and CF v Secretary of State for the Home Department  EWHC 111 (Fam),  1 FCR 577 , at paras –. Just as I pointed out in R (A, B, X and Y) v East Sussex CC (No 2)  EWHC 167 (Admin), (2003) 6 CCLR 194 , at para , that it was the function of the local authority and not the court to make and draw up the assessments that were there in issue, so too in the present case it is for the County Council and not the court to make the initial and core assessments of these children.
- Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their right to be regarded as reasonable. The proof required to show unreasonableness must be convincing. The claimant must demonstrate an error or errors of reasoning which rob the decision of its logic.
- The intensity of review will depend upon the profundity of the impact of the determination – R (KM) v Cambridgeshire CC  UKSC 23. Given JF's permanent vulnerability and dependency upon care and support workers, the intensity of review required in this case is high.
THE EXPERT EVIDENCE
- Dr Barrowcliff is a Consultant Clinical Psychologist with specialist experience in working with adults with learning difficulties and autism. He was instructed by the Claimant's solicitor to give his opinion on the likely implications of a move away from the DL College for JF's psychological health. Much of his report is a repetition of other people's work and observations. It is not clear how much time he spent with JF and at the DL College and he did not visit the Lodge, so far as I know. I was also taken to a report dated 13 April 2017 prepared by JF's current Psychology and Behaviour Support Adviser Natasha Carlon and Dr Christopher Robinson, a Consultant Clinical Psychologist, both attached to the DL College. An independent social worker called Cathleen Long prepared a lengthy report dated 10 May 2017 for the purpose of these proceedings. Her report is based on a consideration of relevant papers and reports and a visit to see JF at the DL College. She lists his needs on page 17 of her report and they include staff who can use PECS and TCEs, ongoing SLT, daily access to OT, immediate access to behaviour support and a MDT who can provide a rapid response in times of crisis. The collective substance of these reports supports the contention that JF needs an on-site MDT, total communication environment and detailed and long term planning for any change in placement.
- Whilst I have had due regard to the contents of these reports, they were not before the decision maker. I am constrained in the reliance that I can place on them in a review of this nature. Where however, the Care Act Assessment is silent about a relevant disputed need and in particular one contended for by his parents, then I have considered the expert evidence supplied by the Claimant in the general context of my examination of the lawfulness of the defendant's decision making. In doing so, I have not decided what JF's needs are or how they should be met.
THE SUBMISSIONS OF THE PARTIES ON GROUND 1
- JF alleges that LBM failed to conduct a lawful Care Act Assessment because:
i) JF's speech and language (SALT) and OT needs are not properly quantified in the body of the report although other detailed reports on those issues are referred to by use of the words "Please refer to" or "Please see report of…" without any further analysis. This in turn means that there has been no adequate assessment of what appropriate level of provision is required or how any available provision at the Lodge will affect JF;
ii) The report does not identify or express any view about a need for an on-site multi-disciplinary team (including speech therapy and OT) which is a facility that JF has enjoyed access to for several years and even before moving to the DL College. Likewise, the report does not identify or express any view about the approach to TCE in JF's accommodation. This means that the defendant unlawfully assessed that JF did not have such needs or alternatively failed to consider whether he had any such needs. There is some overlap between this and the criticism summarised at (i) above;
iii) The report fails to recognise the importance to JF of continuity and familiarity, especially in his residential setting. It therefore fails to assess the impact that any transition from one placement to another would have on JF. Again there is overlap between this and the foregoing criticisms. Mr Line, on behalf of JF, made it clear that he was not submitting that JF could never be "transitioned" from one placement to another, only that any statutory assessment of needs, given JF's need for continuity, must include a consideration of where he is likely to be transitioned to, i.e. what his accommodation should include and how such a transition could be managed – a failure to do this would amount to a breach of section 1(1) and 9(4)(a) of the Act;
iv) Taken together and individually these deficiencies fail to comply with the defendant's duty in section 1(1) and section 9(4)(a) of the Act and amount to an unlawful failure to consider and promote JF's wellbeing. The suitability of any accommodation for JF must be considered at the needs assessment stage and not later because of the duty to promote JF's wellbeing (which includes the impact of his needs on suitability of accommodation). In support of all Grounds, the Claimant relies upon the reports referred to in paragraph 39 above.
- LBM rejects these criticisms and submits:
i) The SALT and OT needs are adequately set out and this case is essentially about how those needs should be met. Such assessments will always be expressed in "high level" terms with more detail being set out at the provision stage i.e. later in the process. It is acceptable for hard pushed social workers to refer the reader/decision maker to other associated reports. It is just a short hand way of saying "consider them".
ii) The report does not identify a need for on-site multidisciplinary access or a TCE because there is no need for either. The report contains needs and is not required to identify "non-needs".
iii) Transition between placements will always be an issue for those in JF's position and this would be obvious. In any event, the defendant says that it is adequately dealt with in the assessment. This is not a question of need but of planning at the next stage i.e. provision. The plan for transitioning would be set out in more and appropriate detail at the provision rather than the assessment stage.
iv) No breach of section 1(1) was pleaded in the Claimant's grounds though it was relied upon in oral submissions before me.
SUBMISSIONS OF THE PARTIES ON GROUND 2
- I have set out in paragraphs 9 to 24 above the chronology of correspondence and the relevant extracts about this from the assessment documents. The Claimant submits (a) that LBM has effectively decided to terminate JF's placement at the DL College and (b) has done so by relying upon an inadequate Report that the Lodge can suitably meet his needs and (c) has either decided to place JF at the Lodge or has proposed to place JF there. If there is any ongoing fluidity around any of that, then the Claimant submits that it is an unnecessary direct consequence of these proceedings rather than evidence that no decisions have been taken.
- The Claimant submits that LBM's decisions about the Lodge result from over-reliance on cost implications and on SHC's February 2016 Report which, it is said, is so inadequate that no rational Council would safely rely upon it when considering the suitability of the Lodge for JF. It is submitted that the assessment is scant (comprising a Yes/No box format) and inaccurate and that it fails to include how any transition for JF would be managed in breach of the duty section 1(1) of the Act to promote his wellbeing. Mr Line submitted that if LBM wished to rely upon its own knowledge of or visits to the Lodge, then Ms Singer's late statement about this was insufficient and not substantiated by any disclosed notes, minutes or associated documents.
- LBM submits that in fact, all that has happened from a public law point of view, is that LBM has assessed JF's needs. The Act assessment process, for current purposes, involves two stages – (1) assessing the needs and (2) deciding how they should be met (i.e. provision). It submits that these proceedings were issued in between the assessment and the provision stage and that LBM has not yet decided how to meet JFs needs. I invited Mr Tankel to confirm whether or not LBM had already decided that the Lodge could suitably meet JF's assessed needs. He submitted that although there was an impression that such a decision had been taken (in particular by the social worker/s responsible for the Assessment), no decision about the Lodge's suitability had been taken at "corporate" level because no decision had yet been made about funding JF's placement. This meant, he contended, that the Lodge was merely "on the table" and that there was no public law duty arising from that, yet. He did agree that only two locations are in contention, namely the DL College and the Lodge and that has been the case for well over a year.
- LBM submitted that it cannot be criticised for the quality of a third party's (SHC's) Report; such assessments are less detailed than those prepared when a resident actually moves in; that other factors were relied upon in any event such as LBM's tried and tested knowledge of the Lodge and placement there previously of other residents with severe difficulties. The defendant also set store on the contents of Ms Singer's late witness statement in which she describes visiting the Lodge in January 2016 in order to assess its suitability.
DISCUSSION AND DECISION ON GROUND 1
- In my judgment the Needs Assessment must specify what JF's needs are and it must do so on a rational basis. If the Assessment failed to assess the impact of JF's needs for care and support upon the factors of wellbeing listed in section 1(2) of the Act, then it is an unlawful assessment. Likewise, if it failed to assess the outcomes that JF's wishes to achieve in day-to-day life, and whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes, it is unlawful. If it fails to have regard to the matters specified in Regulation 3(2) as set out in paragraph 30 above, it is unlawful. If the author failed to have regard to the wishes and preferences of the individual (expressed here to a degree by the Guardians, his parents), then it is unlawful. If it is neither appropriate nor proportionate then it is unlawful. This judgment will not address all of JF's needs, merely those referred to in the Statement of Facts and Grounds in order to determine whether they were lawfully considered applying these principles.
- The Assessment did reach a conclusion about these needs and found that JF needs:
i) Support to communicate his needs, views and wishes and intensive interaction (p2);
ii) A high level of communication support including "now next" communication aids, verbal prompting and hand over hand support (p7);
iii) Staff need to be trained and fully aware of using JF's communications aids to support him fully (p7);
iv) OT led intervention to regulate JF's arousal levels and to prevent JF from becoming agitated, anxious (p4);
v) To be (in the context of OT) in a safe environment which is constantly checked for dangers to JF (p9);
vi) Staff need to be trained to use JF's OT equipment;
- I think it is implicit from the wording of the document that its author accepts that JF requires PECS and a high level of ongoing support:
i) On page 3 under the heading "Other relevant assessments (including health needs, mental capacity) etc." the author has written:
"Please refer to the latest detailed reports provided by the current health professionals involved with JF at DL College."
ii) On page 12 when assessing JF's access to work, training, and education the Assessment included:
"Please refer to the behavioural support plan, OT reports and SLT reports for detailed information."
- Some of those ancillary reports referred to in the Assessment were in the documents placed before me and I have focused on those dated 2015 and 2016. They speak of the need for a multi-disciplinary approach and the need for ongoing SALT and OT support. Much of what is contained in the reports is consistent with the Care Act Assessment. To take one example the speech and language therapy report dated 10 February 2016 by Mel Roden indicates that JF required 29 hours of communication support over the previous year and that such SALT input does not occur on a weekly basis but on an "as and when" basis so that when communication needs are identified, a referral is sent to the SALT service for support. It is correct, as Mr Line submits, that the Assessment does not expressly specify whether every need identified in the various reports, is agreed or rejected. However, the author of the Assessment refers the reader to the reports for "information" and because they contain "relevant assessments" about a variety of matters, including what JF can or cannot do for himself, what he is at risk from and certain other needs. The Care Act Assessor has plainly considered them but is not bound to accept every aspect of them. The Assessor is not under a duty to explain in a Care Act Assessment why he or she disagrees with anything contained in such reports or with the views of those in JF's parents' situation. The conclusions she reached are set out, and the material on which they are based is identified. That is a legally sufficient approach to an assessment, subject to the conclusions being rationally based on the material.
- I remind myself that when it comes to reviewing such assessments, the court should be slow to interfere with the decision maker's well-placed ability to judge an individual's needs.
- For these reasons, I find that JF's SALT/OT needs have been sufficiently described and assessed in accordance with the statutory framework set out in this judgment. The Assessment, in this respect, is neither unlawful nor Wednesbury unreasonable.
- The Assessment (and its associated reports) notes that JF benefits from having a co-ordinated MDT on-site which reviews his changing needs and behaviours, his support and therapies. Benefit is not the same as need. The Assessment makes a number of references to the continuous MDT access and the significance of it. For example, on page 5 it notes the way in which the MDT co-ordinates decisions about his daily life, describing it as comprehensive support network and lists the ongoing daily MDT support JF has received. The Assessment notes that his parents consider that the on-site access and TCE should continue. The report of Ms Roden, JF's Speech and Language Therapist dated 10 February 2016 which the reader is signposted to in the Assessment states that JF needs to be in a TCE. The Assessment does not say one way or another whether JF has a need for TCE or for the MDT access to be on-site as opposed to otherwise available. Mr Line is critical of this especially given the parents' clear views on the subject and the previous long term provision of both TCE and MDT. He is correct, in my view, to submit that the silence prevents the reader from understanding whether the need for MDT/TCE was considered and rejected or simply not considered at all. The statement of Claire Singer stated that the local authority decided that JF did not need an on-site MDT or a TCE. I return to this below but for the purpose of this review, I accept that the Defendant has so decided. Mr Tankel submits that the Defendant is entitled to consider that JF does not need an on-site MDT or TCE at his accommodation and is not under a duty to list rejected needs in the Assessment or to give reasons.
- I am unable, on the evidence placed before me, to agree that this aspect of the Assessment is either rational or lawful. The Defendant may well be entitled to conclude that JF does not need MDT or TCE but only on a lawful and rational basis. The only evidence about the decision concerning these potential needs comes from Ms Singer at paragraph 19 of her statement. She states that there was consultation and advice about this and the outcome was that the "local authority" decided that JF did not require an on-site MDT and a TCE. The process is not particularised and the decision maker/s not identified. I remind myself that Mr Tankel informed the court that part of the rationale for conducting a Care Needs Assessment was that the Defendant wished to explore cheaper accommodation because it had been decided JF did not need an on-site MDT and this aspect of provision was very expensive. I am not informed when this decision was taken and whether it was outside the main written Assessment process or before or after it. I have been provided with no documentation to evidence or support such a decision. For the Assessment to remain silent on both issues is surprising given the circumstances that I have summarised above. Ms Singer's statement implies that the decision was made separately from the completion of the Assessment. The absence of information about the decision is contrasted with the information contained in various reports preceding and post-dating the Assessment which suggest an arguable need for both an on-site MDT and a TCE and a definite requirement to consider whether JF has such needs. It also sits alongside the clearly stated views of JF's parents who speak for their son because he cannot speak for himself. Their views were recorded on the face of the Assessment but as it is not possible to tell when the decision was made that JF did not have these particular needs and by whom, it is not possible for the Court to be satisfied that the parents' views (and JF's wishes) were taken into account. It is also not possible to know whether in this respect, the defendant had regard, as it was required to, to the desired outcomes for JF or whether it assessed the impact of JF's MDT needs in the context of his well-being and suitable accommodation. The decision in question would in part represent a departure in the type of service provided to JF for the last 15 years. It is difficult to categorise a decision to reverse such a long standing provision (based presumably on need) as rational when I am not told who made it and I am not told the basis for it.
- In those circumstances, I am satisfied that the defendant failed to comply with its duties under sections 1(1) and (3) and section 9(4) of the Act. The decision was not reasonable in the Wednesbury sense. Accordingly the Assessment was not lawful. Any re-assessment of JF's needs must be based on his current situation and not conducted (as I find it was) from the position that his placement is no longer available to him. It should be noted that this finding is entirely fact-specific in a case where there is a dispute about which decisions were actually made with virtually no evidence in support from the Defendant to assist the Court one way or another.
- My judgment about the MDT/TCE aspect means that the Assessment will need to be conducted afresh. However, for the sake of completeness, I will deal with the issue of transitions and disruption to JF's sense of familiarity. The Assessment acknowledged and assessed the difficulty that JF had with transitions of a daily nature and that this resulted in a need for 1:1 support within his home environment and 2:1 support when out. The Assessment recorded that JF needs trained staff to manage his transitions. The Assessment did not address in any way what JF's needs would be in transitioning from one placement to another. Mr Line categorises that as a breach of the duty to promote wellbeing, bearing as it inevitably would on JF's physical and mental health and emotional wellbeing and an alleged diminution in suitability of accommodation. I have summarised LBM's submissions in paragraph 42(iii) above. I reject its contention that the Assessment deals with JF's needs in moving from one long term placement to another. It does not. However, I find that an Assessment under section 9 is not required to deal with this. The Care Act Assessment is designed to be a statement of static current needs, not how such needs should be met or changed. It must consider the effect of his care and support needs on the, inter alia, the suitability of his accommodation not how he might move to and from any such accommodation. In that sense, this part of the Assessment was neither unlawful nor irrational. If or when JF moves between placements, in meeting his needs, LBM will need to promote his wellbeing under section 1 and will therefore need to manage any transition in a way which complies with section 1. I have referred above to the role of the Care and Support Plan required by sections 24 and 25 of the Act and find that the obligation to address the specific way in which assessed needs are addressed will arise at that stage. Whether LBM has complied with this duty is not something I have been able to decide within this judicial review.
- I should say that there is nothing in the LBM's pleading point that breach of section 1 was not specifically pleaded by the Claimant in writing. It is referred to in paragraph 35 of the Statement of Facts and Grounds. LBM was aware of this, as is clear from its detailed grounds of defence which deny a breach of the duty to promote JF's wellbeing.
DISCUSSION AND DECISION ON GROUND 2
WHAT DECISIONS HAVE BEEN MADE AND HOW?
- I have not been provided with any evidence about how the funding panel operates (beyond paragraph 17 of Ms Singer's statement quoted above) or any written policy and procedure which would enable me to distinguish between the significance of decisions by social workers and decisions at a corporate level about placements of this nature. I have referred above to the reduced weight to be attached to a witness statement served late and unsupported by relevant documents.
- My findings about LBM's decision-making are as follows:
i) First, despite the fact that the Funding Panel has not met, LBM has decided to terminate JF's placement at the DL College. This is the clear inference from the wording of the draft and final Care Act Assessments. It is also what has been communicated in the correspondence dated 12 July and 30 August 2016. This is why the SHC Report was commissioned and JF's parents urged to visit the Lodge. This finding is reinforced by the Care and Support Plan, disclosed very late in the day and dated 28 April 2017. It states:
"Funding was agreed for an additional two terms at college which is due to terminate at the end of the Spring term…an appropriate placement needs to be identified for JF to move to on a permanent basis, where his needs will be met."
The combined effect of the language used and the steps taken is one of decision rather than undecided planning.
ii) Second, I find that on the information available to me, LBM has decided that the Lodge is suitable accommodation in the sense that it has decided it can meet JF's needs, as assessed. I have little hesitation in coming to this conclusion. The social worker preparing the Care Act Assessment concluded that the Lodge was suitable. In correspondence dated 30 August cited in paragraph 22 above, LBM expressly stated that it had come to this conclusion. Furthermore, the Detailed Grounds for Defending the Claim say at paragraph 4(g):
"The defendant has, for a variety of reasons including a positive pre-admission assessment carried out by Aspen Lodge, Wednesbury reasonably decided that the Claimant's needs could in principle be met at that placement"
iii) Third, in my judgment LBM has not yet formally taken the decision to move JF from the DL College to the Lodge although, in its documents and correspondence, it has proposed that such a move is an option. The parties are agreed that for a long time now, it has been the only identified alternative option. It seems inevitable that, absent these proceedings, it would have decided to move JF to the Lodge because it has decided to terminate the DL College placement and has found no other suitable provider despite making various enquiries over several months.
THE LAWFULNESS OF THESE DECISIONS
- There is no dispute that JF has eligible needs which the defendant must meet. It is obvious that an assessment of the suitability of his accommodation will depend on the assessment of his needs.
- The decision to terminate JF's placement cannot be said to be rational. On one persuasive view, it was made before JF's needs had been conclusively assessed under the Act. On any view, it was made before the preparation of the Care and Support Plan. In those circumstances, it is difficult to see how the decision can have been in compliance with the statutory duties contained in section 1 and 9(4) of the Act and in Regulation 3 of the Assessment Regulations. The defendant denied making a decision to terminate JF's placement at the DL College, a position which I have rejected. It has simply deferred the implementation of its decision. There is no evidence before the Court therefore justifying the decision. No reasonable local authority would terminate the placement of someone with JF's complex needs without having conducted a lawful assessment of those needs and without having lawfully decided that suitable alternative accommodation was available that would enable them to meet his needs. I have found that the assessment was not lawful for the reasons given above. The decision to terminate can therefore not stand, regardless of the date on which it was taken.
- For the same reason, the decision that the Lodge is suitable to meet JF's needs cannot stand. If the needs have not been lawfully assessed, the deemed suitability of the alternative accommodation cannot lawfully survive. Here the third-party provider SHC assessed the Lodge as suitable accommodation well before the Care Act Assessment process was even complete. The defendant was entitled to consider the pre-admission Report but only in the face of a lawful and rationale Care Act Needs Assessment.
- In those circumstances, it is not strictly necessary for me to decide whether the January 2016 pre-admission Report was so inadequate that no reasonable local authority would rely upon it when deciding the suitability of alternative accommodation. Because it will be necessary for the defendant to re-assess JF's needs and therefore the suitability of any proposed alternative accommodation I express the following findings to assist the parties in the consideration of the nature of any re-assessment.
- It is not sustainable for LBM to say on the one hand that it is not responsible for the pre-admission Report (and therefore for any apparent deficiencies in it) but that it has acted reasonably in relying upon it. It relied upon it to such an extent that it declined to arrange for a requested and more thorough assessment of JF in the DL College by Lodge staff after JF's parents expressed concerns about its quality and declined to move JF to the Lodge for assessment purposes. Mr Tankel confirmed that the parents' request was declined because the first assessment sufficed. If the pre-admission Report is so deficient that no reasonable local authority would rely upon it to commission a service, then LBM has acted unreasonably in placing reliance on it.
- Turning then to the criticisms made of the pre-admission Report by SHC, I agree that it does not allow for written detail of the sort deployed in a Care Act Assessment. It does not need to. It is just one part of a process.
- I accept that it contained a number of errors, some, more important than others. They do not however mean that the Lodge is incapable of meeting JF's needs or that LBM would be acting unreasonably in relying SHC's assessment in the wake of a lawful Care Act Assessment. Until LMB lawfully assess JF's needs, these issues must remain unresolved.
- The document does not contain any reference to the intense planning that would be required to try and transition JF from the DL College to the Lodge. The Claimant has categorised that as a breach of section 1(2) of the Act because it fails to promote his wellbeing. I do not agree, as I have explained above in the context of the Care Act Needs Assessment. The purpose of the document is to record the accommodation and care/support needs that the service user has in order for the Lodge to determine whether it can meet them. It is for LBM to decide whether the Lodge could suitably provide a placement and it can only do that after it has lawfully assessed JF's needs. If the Lodge reasonably can meet the needs, then the planning for that comes at a later stage when the Care and Support Plan is implemented. The relevance of the need to plan transitions properly is to the decision to move JF.
- Taken in isolation, the information contained within the pre-admission Report prepared by SHC may not be sufficiently detailed to commission a service of the complex sort required by JF. But if I had been required to go on and determine the lawfulness of LMB's reliance upon the Report I would have been entitled to have regard to the fact that the relevant social worker, Ms Singer, visited the Lodge in order to assess it. I would also have been entitled to have regard to contents of the Defendant's Detailed Grounds for Defending the Claim, which included an assertion that LBM is very familiar with the Lodge and the type of service that it provides and that it has successfully accommodated other service users there. Any Court reviewing such matters would be assisted by the service of more detailed information about all of this. In making these observation, I make it clear that I have not made any decision as to whether the Lodge is suitable to meet JF's needs.
- I do not need to determine whether LBC's decisions have been motivated purely by cost and whether it has fettered its discretion in this way, as was found on the evidence in R (Alloway) v Bromley LNC  EWHC 2108 at -. Given that the DL College has adult provision, Mr Tankel's responses on behalf of LMB, summarised in paragraph 13 above, taken to their logical conclusion would imply that cost was a very significant factor.
- Finally, the Claimant alleged in its Statement of Facts and Grounds that because the DL Centre was the preferred choice, the defendant was obliged pursuant to the Choice of Accommodation Regulations cited above, to maintain JF's accommodation at the DL College. This contention was not developed orally at the hearing before me. For the avoidance of doubt, I would have rejected the Claimant's argument for the reasons set out in the defendant's Summary and Detailed Grounds.
- The parties were unable to agree an order consequential to this judgment. I heard brief oral submissions about remedy at the substantive hearing and at my direction, I received further written submissions.
- The main difference between the parties concerns the question of whether I should quash the Care Act Assessment and direct the Defendant to undertake another in accordance with its statutory duties. The Defendant contends that the assessment forms the basis of a public law decision and that as it is not a decision in and of itself, it cannot be quashed. Further having been declared to be unlawful, there is no need to quash it because no lawful reliance can now be placed upon it and there is, in any event, a statutory duty under the Care Act 2014, to assess JF's needs. I am informed by the Defendant in submissions that there has been a recent development and as such "it may be that it is the NHS that now has statutory responsibility for carrying out JF's needs assessment". The Claimant contends that the assessment informs future decision making and must be quashed. The Claimant desires certainty, wishes the process to commence afresh and has no knowledge of any reason why that process should be postponed.
- I am satisfied that the court has the power to quash the Care Act Assessment and, if necessary, to mandate the Defendant to re-assess KF's needs. The Assessment plainly constitutes a public law decision for the purpose of judicial review (albeit one that informs other public law decisions) and I have judged it to be unlawful. A declaration as to its unlawfulness is of limited practical utility and there is no good reason not to quash it. The indecision over JF's accommodation has lasted well over a year and has continued during and after these proceedings. I have not been provided with cogent information which would enable me to conclude that the Defendant is no longer under a statutory duty to assess JF's needs. On the one hand the Defendant says it is aware of its duty to assess in accordance with the 2014 Act and on the other it suggests that the duty may now fall elsewhere. In the face of that ambiguity and given the duration of the ongoing uncertainty I am not confident that a quashing order would suffice to ensure that JF's needs are assessed. In the light of the orders that I intend to make, the declarations sought are not, in my view, necessary.
- I make the following orders:
i) The claim is allowed;
ii) The Care Act Assessment dated 14 July 2016 is quashed;
iii) The Defendant's decisions, under review in these proceedings, to terminate JF's placement at the DL College and to assess the Lodge as suitable to meet JF's needs are quashed.
iv) The Defendant undertake a further assessment of JF's needs in accordance with the provisions of the Care Act 2014 and associated Regulations.
v) That the parties file and serve written submissions on the issue of costs (limited to two sides of A4) on or before 4pm on 5 July 2017.