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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CP, R (On the Application Of) v North East Lincolnshire Council [2019] EWCA Civ 1614 (03 October 2019) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1614.html Cite as: [2019] WLR(D) 541, [2020] PTSR 664, [2019] EWCA Civ 1614 |
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
His Honour Judge Graham Wood QC (sitting as a Judge of the High Court)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOYLAN
and
LORD JUSTICE HADDON-CAVE
____________________
THE QUEEN (ON THE APPLICATION OF CP, BY HER FATHER AND LITIGATION FRIEND JP) |
Appellant |
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- and - |
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NORTH EAST LINCOLNSHIRE COUNCIL |
Respondent |
____________________
David Lock QC and Jacqui Thomas (instructed by North East Lincolnshire Council Legal Department) for the Respondent
Hearing date : 19th June 2019
____________________
Crown Copyright ©
Lord Justice Haddon-Cave:
Introduction
Background facts and litigation history
Early years
Aged 18 years onwards
CP attends Fix n'Kiks – September 2014
"CP and her family have been informed that provision at Fix n'Kiks could be purchased using her Personal Budget which would be reassessed once she ceased to attend school. They were also advised in the response to the complaint in July 2014 …[to]… request an Education, Health and Care (EHC) Needs Assessment… It appears to be the case that if your clients were to request an EHC Needs Assessment and CP does access some mutually agreed form of further education, then her attendance at 'Kixs and Fixs' [sic] could be provided for through a Personal Budget pursuant to health/social care provision, but of course my client does not accept that is education."
Council's refusal to carry out EHC assessment– July 2015
"[CP] currently receives a weekly direct payment from Adult Services which she uses to fund 2 personal assistants at different times during the week to support her to travel to and attend Fix 'n'Kiks/Disability Active Monday-Friday 9-3 and also support her to access the community."
"(CP's) learning needs could more appropriately be met through the co-ordinated approach of Fix N Kiks, home and activity in the community than in a specialist education or training setting…The provision that [CP] is accessing through Fix N Kiks is funded by her Adult Social Care Personal Budget…the provision and support at Fix N Kiks are meeting [CP's] needs."
CP issues appeal to FTT – February 2016
Adult Social Care Assessment – 11th April 2016
"[CP] is usually supported by PA (Trish) to attend Disability Active in Cleethorpes 9am till 3pm 5 days per week (Monday to Friday). During [CP's] 'classroom activities' (as described by PA) she spends one to one time with her PA in a classroom practising previously learned skills and developing new skills, with support. [CP] is fully supported by her PA at all times whilst she attends Disability Active and spends some of the time accessing the community."
CP issues JR proceedings– July 2016
FTT appeal heard – September 2016
Council issues final EHC plan – January 2017
"… Unfortunately it transpires that there is no legal footing to justify us not funding this provision and having liaised with [X] the funding below was agreed: 10 weeks transport to Disability Active (education will continue to fund 38 weeks); Disability active provision 7 hrs per day (35 hrs per week) for 48 weeks (full costings are in the attached documents; [X] advised that a request for re-assessment will be forwarded to [Y]. In light of this the provision has not been changed as it requires exploration as to how this funding will be delivered, i.e. by direct payment or otherwise." (emphasis added)
FTT hears CP's second appeal – 27th July 2017
The split JR hearing – 5th October and 7th December 2017
The legal framework
The Care Act 2014
(1) Section 9 sets out the duty to carry out a "needs assessment".
(2) Section 13 sets out the relevant approach to making the determination as to whether a person whose needs are being assessed meets the "eligibility criteria".
(3) Section 18 confirms the duty to ensure that those "needs" are met.
(4) Section 24 describes the next steps for the local authority to make after an assessment of need, essentially the preparation of a "care and support plan".
(5) Section 25 sets out the requirements of a care and support plan, which includes the preparation of a "personal budget" (under section 26).
(6) Section 26 sets out the requirements of a "personal budget", which must specify "the cost to the local authority of meeting the adult's needs under [section 18]".
"26 Personal budget
(1) A personal budget for an adult is a statement which specifies—
(a) the cost to the local authority of meeting those of the adult's needs which it is required or decides to meet as mentioned in section 24(1),
(b) the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and
(c) if on that basis the local authority must itself pay towards that cost, the amount which it must pay.
(2) In the case of an adult with needs for care and support which the local authority is required to meet under section 18 , the personal budget must also specify—
(a) the cost to the local authority of meeting the adult's needs under that section, and
(b) where that cost includes daily living costs—
(i) the amount attributable to those daily living costs, and
(ii) the balance of the cost referred to in paragraph (a)."
The Children and Families Act 2014
(1) Section 20(1) provides the circumstances where special educational needs arise, namely where a child or young person has "a learning difficulty or disability which calls for special educational provision to be made for him or her".
(2) Section 21 defines the different types of educational provision, and the extent to which they may overlap with social care.
(3) Section 25 requires a local authority to integrate its health care and social care provision, with educational provision.
(4) Section 37 provides that where an assessment is made that special educational needs should be provided for and made the subject of an education, health and care ("EHC") plan, the local authority has an absolute duty to prepare and maintain that plan.
(5) Section 40 requires the local authority to name a particular school or other institution in the EHC plan.
(6) Section 51 provides for a right of appeal where a parent or young person is dissatisfied with specific decisions in relation to the EHC plan.
"Special educational provision, health care provision and social care provision
(1) "Special educational provision", for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—
(a) mainstream schools in England,
(b) maintained nursery schools in England,
(c) mainstream post-16 institutions in England, or
(d) places in England at which relevant early years education is provided. …
(4) "Social care provision" means the provision made by a local authority in the exercise of its social services functions.
(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)."
"25 Promoting integration
(1) A local authority in England must exercise its functions under this Part with a view to ensuring the integration of educational provision and training provision with health care provision and social care provision, where it thinks that this would—
(a) promote the well-being of children or young people in its area who have special educational needs or a disability, or
(b) improve the quality of special educational provision—
(i) made in its area for children or young people who have special educational needs, or
(ii) made outside its area for children or young people for whom it is responsible who have special educational needs."
"37 Education, health and care plans
(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—
(a) the local authority must secure that an EHC plan is prepared for the child or young person, and
(b) once an EHC plan has been prepared, it must maintain the plan.
(2) For the purposes of this Part, an EHC plan is a plan specifying—
(a) the child's or young person's special educational needs;
(b) the outcomes sought for him or her;
(c) the special educational provision required by him or her;
(d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs; …"
"40 Finalising EHC plans: no request for particular school or other institution
(1) This section applies where no request is made to a local authority before the end of the period specified in a notice under section 38(2)(b) to secure that a particular school or other institution is named in an EHC plan.
(2) The local authority must secure that the plan—
(a) names a school or other institution which the local authority thinks would be appropriate for the child or young person concerned, or
(b) specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person. …"
"51 Appeals
(1) A child's parent or a young person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (mediation).
(2) The matters are—
(a) a decision of a local authority not to secure an EHC needs assessment for the child or young person;
(b) a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan;
(c) where an EHC plan is maintained for the child or young person—
(i) the child's or young person's special educational needs as specified in the plan;
(ii) the special educational provision specified in the plan;
(iii) the school or other institution named in the plan, or the type of school or other institution specified in the plan;
(iv) if no school or other institution is named in the plan, that fact;
(d) a decision of a local authority not to secure a re-assessment of the needs of the child or young person under section 44 following a request to do so;
(e) a decision of a local authority not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment under section 44;
(f) a decision of a local authority under section 45 to cease to maintain an EHC plan for the child or young person.
Statutory Guidance
"Needs met by a carer
10.26 Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship."
"11.3 The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met. It means:
knowing, before care and support planning begins, an estimate of how much money will be available to meet a person's assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including proportion the local authority will pay, and what amount (if any) the person will pay
being able to choose from a range of options for how the money is managed, including direct payments, the local authority managing the budget and a provider or third party managing the budget on the individual's behalf (an individual service fund), or a combination of these approaches
having a choice over who is involved in developing the care and support plan for how the personal budget will be spent, including from family or friends having greater choice and control over the way the personal budget is used to purchase care and support, and from whom."
"11.4 It is vital that the process used to establish the personal budget is transparent so that people are clear how their budget was calculated, and the method used is robust so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs. The allocation of a clear upfront indicative (or 'ball-park') allocation at the start of the planning process will help people to develop the plan and make appropriate choices over how their needs are met."
"The personal budget
11.7 Everyone whose needs are met by the local authority, whether those needs are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan. The personal budget is an important tool that gives the person clear information regarding the money that has been allocated to meet the needs identified in the assessment and recorded in the plan. An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option."
"Elements of the personal budget
11.10 The personal budget must always be an amount sufficient to meet the person's care and support needs, and must include the cost to the local authority of meeting the person's needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay."
Article 2 Protocol 1
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
Judgment below
(1) Is a local authority acting unlawfully and/or in such a way that is challengeable by judicial review where it does not address the social care aspect of special educational provision, or the cost of any special educational needs placement when there is an outstanding appeal to the FTT under section 51 of the Children and Families Act 2014 in relation to those matters?
(2) Has the Council lawfully discharged its duties under the Care Act 2014 and the Children and Families Act 2014 towards the Claimant in respect of the 2016 and 2017 care plans (excluding the revised plan)?
(3) If it has not, does this entitle the Claimant to pursue a challenge by way of judicial review, bearing in mind that there is no present objection to the care plan/direct payment, and no issue going forward which the court is being asked to determine?
(4) Has there been a breach of A2P1?
(5) If the Claimant is entitled to declaratory relief in relation to any alleged unlawfulness, does this give rise to a claim to monetary compensation by restitution or otherwise?
(1) Where a claimant had lodged an appeal to the FTT under s. 51 of the CFA 2014 in respect of the social care aspect of special educational provision, or the cost of any special educational needs placement, there was no obligation on the local authority to address these matters until the tribunal determination had been made (see [117]).
(2) The Council lawfully discharged its duties under the Care Act 2014 and the CFA towards CP in respect of the 2016 and 2017 care plans (save in one limited respect referred to in paragraph [94]) (see [118]).
(3) Even though the Council had acted unlawfully in one limited respect, this was not susceptible to challenge by way of JR for the reasons stated in paragraph [95] (see [120]).
(4) There had been no breach by the Council of A2P1 (see [121]).
(5) CP had no entitlement to monetary compensation by restitution or otherwise and the claim for JR failed (see [122]).
Issues in the appeal and cross-appeal
(1) Issue 1 (Appeal ground 1): Was the judge wrong in law in holding that (Judgment [95]) "Whether or not the local authority has acted unlawfully in relation to past matters is irrelevant for the purposes of JR , unless that unlawfulness has continuing effect on or consequence for CP's rights and entitlements."
(2) Issue 2 (Appeal ground 2): Was the judge also wrong in law (Judgment [108-109]) in holding that, once the Appellant's parents had commenced an appeal to the FTT in relation to the Council's obligations under the Children and Families Act 2014, the Council was acting lawfully in doing nothing in respect of its obligations under the Care Act 2014; and that the court also could not or should not scrutinise the legality of its alleged failures under the Care Act 2014 during that period.
(3) Issue 3 (Appeal ground 3): What relief should the court grant?
(4) Issue 4 (Cross-appeal): Should the Judge have held that CP's father and litigation friend could not pursue a claim to secure public money to be paid to him for CP's use of the Fix n'Kiks premises.
(5) Issue 5 (Cross-appeal): Given that the placement at Fix n'Kiks was accepted by the judge to be solely an educational placement (see Judgment [109]), were the Council entitled to defer to the Tribunal to determine if it should be funded?
Submissions
Appellant's submissions
Respondent's submissions
Analysis
Introduction
Was the Council in breach of the statutory scheme and guidance?
Was the Judge in error?
"26. There was a further development before the resumed hearing in December [2017]. The principle of payment for the educational provision at Fix n'Kiks was now accepted, although the amount being sought, and the method by which it would be paid remained in dispute. Neither counsel suggested that these were matters which concerned the court. Further, the cost of transportation to and from the placement had been the subject of agreement. In these circumstances, this court in the final analysis has been concerned with historical matters only, and although CP still sought declaratory and mandatory relief, the outcome of the JR was not going to affect the ongoing provision of direct payments for CP, and the way in which the social care and educational programme was being managed because of the agreement which had been reached. ..."
"91. At the heart of the dispute between the parties is the cost of attendance at Fix n'Kiks. Whilst this will have to be met from here on by the local authority in some form or another when a suitable vehicle for payment is established, the question arises as to whether or not from the time of first placement, payment should have been included in the care package. If the Defendant has acted unlawfully in any respect by not making such inclusion, then the further and subsidiary question arises as to whether this is a justiciable matter within JR proceedings to entitle a direction for compensation in relation to past losses.
"94. The duty is a clear one derived from section 26 of CA 2014 , and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of JR, assuming that it was otherwise uncorrected. CP provides a compelling argument in respect of the earlier plans which were defective in providing this transparency. I am unconvinced by the explanation of Deborah Harding that inclusion in the personal budget of the cost of the placement at Fix n'Kiks which was disputed presented a difficulty, and that this was a matter which could only be addressed after the FTT had resolved the question. Provision was still being made for care and support costs during the day (when CP was attending Fix n'Kiks) as well as other aspects of professional social care to supplement that provided by the family. I do not see how this would have prevented compliance with the duty under section 26, and it did not represent effective following of the guidance."
"113. I have not identified any unlawfulness in relation to the Defendant's decision-making process, assessments or compliance with its duties save in the very limited respect referred to in paragraph 94 above (the personal budget in previous plans). Accordingly, for the most part this question does not arise. In relation to the failure to identify a personal budget, it is difficult to see how any question of restitution is relevant, in any event, because of the breach of duty here related to a lack of clarity/transparency rather than a shortfall in provision." (emphasis added)
The Council's arguments
Summary
Conclusion
Lord Justice Moylan:
Lord Justice Flaux: