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England and Wales High Court (Administrative Court) Decisions
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Cite as:  EWHC Admin 235
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Case No: 4740/2000
Neutral Citation Number:  EWHC Admin 235
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 30th March 2001
THE HONOURABLE MR JUSTICE RICHARDS
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The Queen on the application of
AB and SB
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Nottingham City Council
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Ian Wise (instructed by Messrs Bhatia Best for the Claimants)
Mr Andrew McNamara (instructed by Solicitor to Nottingham City Council for the Defendant)
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As Approved by the Court
Crown Copyright ©
MR JUSTICE RICHARDS:
1. This is an application for judicial review of what is alleged to be an ongoing failure by the defendant council to assess and provide for the claimants' needs. An order has been made in these proceedings to prevent publication of the names both of the second claimant ("SB"), who is a 14 year old child, and of the first claimant ("AB"), who is the second claimant's mother. In the case of AB the order was made solely in order to ensure the effective anonymity of SB.
2. AB is 35 years of age, is divorced and has no partner, and lives in housing rented from a housing trust in the St Ann's area of Nottingham. SB is her younger son and lives with her. Her elder son, SB's brother, is detained in a young offender institution, from which he is due to be released in November 2001. AB herself had a difficult background, being placed in local authority care as a teenager and being subjected later to domestic violence by her former husband which led to her taking drugs. There have been serious concerns in the past about her parenting skills, but a report in September or October 2000 found that she had few problems with SB within the family home, though there was little doubt that she would benefit from some support and guidance in relation to him.
3. SB is reported by the local psychiatric services as having "challenging behaviour and emotional problems". He has not been to school for over two years. A report obtained by the claimants from an independent educational psychologist, Dr Randall, indicates that he has profound difficulties: borderline to moderate learning disability, a conduct disorder, attention deficit hyperactivity disorder, an IQ in only the 3rd percentile, an attainment level below the 1st percentile, a numeracy and literacy level of around 6 to 6 ½ years and a reading age of around 6 years. His behaviour has caused great concern and has brought him into regular contact with the police. He is the subject of a 12 month supervision order made on 13 November 2000 by the Youth Court.
4. SB is currently the subject of an application by the defendant for an anti-social behaviour order. Those proceedings were commenced on 22 November 2000 but were adjourned because AB had recently been the victim of a serious sexual assault. A directions hearing is now fixed for 3 April 2001. The outcome of the present claim for judicial review has some bearing on the anti-social behaviour order proceedings, since part of the defence case in those proceedings is that an order should not be made in circumstances where the defendant has failed properly to assess SB's needs and to consider other ways of dealing with him short of applying for an order.
5. SB is accepted to be a "child in need", within the meaning of s.17 of the Children Act 1989. The primary case for the claimants in these judicial review proceedings is that the defendant has failed properly to assess his needs and, in particular, has failed to follow relevant guidance in circumstances where there is no cogent reason for deviating from it. A separate contention is that the defendant has failed to meet its obligations towards AB as carer for SB. The final main contention is that the defendant's approach to the claimants' housing need is unlawful, in that it has failed to assess need or to take meaningful action to meet the need.
The legislative framework
6. There has been no real dispute before me about the relevant legal principles. Section 17 of the Children Act 1989 imposes a duty on local authorities to provide appropriate services to children within their area who are in need. "Child in need" is defined in s.17(10). Schedule 2 provides that where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of the Act at the same time as any assessment is made of his needs under other enactments. Although a number of other enactments have been referred to in the course of argument, it is common ground that they do not add materially to the substance of the duty under the Children Act.
7. In exercising their social services functions, local authorities are required to act under the general guidance of the Secretary of State: s.7(1) of the Local Authority Social Services Act 1970. In R v. Islington LBC, ex parte Rixon  1 CCLR 119, 123J-K, Sedley J described the effect of s.7(1) as follows:
"in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
8. In R v. Lambeth LBC, ex parte K 3 CCLR 141, 144H, Mr Nigel Pleming QC (sitting as a Deputy High Court Judge) applied that passage to the specific context of section 17 and went on to summarise the effect of the guidance as follows:
"In this case, therefore, concentrating on section 17, there is a duty to act in accordance with the general guidance of the Secretary of State, although statutory language allows some flexibility in the methodology and in the provision of services. That said, the intended scheme is clear from the guidance. In summary, the intended procedure is as follows: first, assess the needs of a disabled child and, where appropriate, the carers and other members of the family; second, produce a care plan; third, provide the identified services" (emphasis added).
Although the claimants rely in the present case upon an additional piece of guidance that post-dates the decision in ex parte K, it does not affect the basic scheme there described. Further, the principles are the same for a child who is not a "disabled" child but fulfils one or more of the other criteria of a "child in need" under s.17(10). In the circumstances it is unnecessary to decide whether SB is a "disabled" child, as to which there has been some dispute before me.
9. I have been referred to four main pieces of relevant guidance issued pursuant to s.7(1) of the 1970 Act: (1) guidance issued in November 1990 in relation to community care, (2) guidance issued in 1991 in relation to the Children Act, (3) a 1999 guidance document entitled Working Together to Safeguard Children, and (4) guidance issued in March 2000, entitled Framework for the Assessment of Children in Need and their Families.
10. Relevant parts of the guidance in relation to community care are set out in ex parte K at pages 144I-145J. I do not need to set them out again. Paragraphs 3.15 and 3.16 of the guidance indicate that there should be a progressive separation of assessment from service provision and that the individual service user and any carers should be involved throughout the process of assessment and care management. Paragraphs 3.24 to 3.26 focus on the care plan, which should be drawn up once needs have been assessed and should cover the services to be provided or arranged and the objectives of any intervention. Paragraph 3.26 emphasises that decisions on service provision should include clear agreement about what is going to be done, by whom and by when, with clearly identified points of access to each of the relevant agencies for the service user, carers and the care manager. Paragraphs 3.27 to 3.29 deal with carers, advising inter alia that most support for vulnerable people is provided by families, friends and neighbours, and that the assessment will need to take account of the support that is available from such carers. The need to involve them in the process is emphasised. Paragraph 3.29 states that carers who feel they need community care services in their own right can ask for a separate assessment, which could arise if the care plan of the person for whom they care does not in their view address the carer's own needs.
11. Relevant parts of the Children Act guidance are also set out in ex parte K, at pages 145J-147H, and repetition is once more unnecessary. Paragraph 2.7 states that good practice requires that the assessment of need should be undertaken in an open way and should involve those caring for the child, the child and other significant persons. Paragraph 2.10 states that once a need has been identified, a plan for the best service provision will be required. Paragraph 2.21 refers to the importance of collaboration between those responsible for different services, so as to ensure that all authorities see children "in the round", whether their particular needs are educational or health or social care, and that parents and children are not subject to a confusing variety of assessment procedures.
12. The 1999 Working Together document sets out how agencies and professionals should work together to promote children's welfare and protect them from abuse and neglect. It is intended to provide a national framework within which agencies and professionals at local level draw up and agree upon their own more detailed ways of working together. It is stressed that good practice calls for effective co-operation, sensitive work with parents and carers in the best interest of the child, and the careful exercise of professional judgement based on thorough assessment and critical analysis of the available information. To help with the process of assessment, the guidance is said to be complemented by a document, Framework for the Assessment of Children in Need and their Families, which appears to be a precursor of the March 2000 document described below.
13. Section 5 of the 1999 guidance sets out "clear expectations" about the ways in which agencies and professionals should work together. It gives detailed guidance on the processes that should be followed. Of particular relevance is paragraph 5.20:
"An initial assessment may indicate that a child may be 'in need' as defined by s.17 of the Children Act 1989, but that there are no substantiated concerns that the child may be suffering, or a risk of suffering significant harm. In these circumstances, the Framework for the Assessment of Children in Need and their Families provides a framework for a core assessment of a child's health and development, and the parents' capacity to respond to their child's needs. This core assessment can provide a sound evidence base for professional judgments on whether services would be helpful to a child and family, and if so, types of service most likely to bring about good outcomes for the child ...."
14. That brings me to the March 2000 Framework document, which reflects inter-departmental collaboration with a view to securing the wellbeing of children. Its broad nature is described in the Preface:
"A framework has been developed which provides a systematic way of analysing, understanding and recording what is happening to children and young people within their families and the wider context of the community in which they live. From such an understanding of what are inevitably complex issues and inter-relationships, clear professional judgements can be made. These judgements include whether the child being assessed is in need, whether the child is suffering or likely to suffer significant harm, what actions must be taken and which services would best meet the needs of this particular child and family ....
The Guidance is not a practice manual. It does not set out step-by-step procedures to be followed: rather it sets out a framework which should be adapted and used to suit individual circumstances ...."
15. The Framework document is very long. In his skeleton argument for the claimants, Mr Wise provides a summary (which I do not believe to be contentious in themselves) of points relied on in the present case:
"i. that there be 10 'principles underpinning the assessment framework', the first of which is that the assessment shall be 'child centred'
ii. that the assessment should take account of three 'domains':
* the child's developmental needs;
* the parents' or caregivers' capacities to respond appropriately;
* the wider family and environmental factors.
iii. the assessment should be based on a full understanding of what is happening to the child in the context of the family and the wider community; 'nothing can be assumed';
iv. the assessment should be a continuing process, not a single event;
v. the process of assessment is in two parts:
a. an initial, or brief, assessment, which should be undertaken within 7 days of referral, and
b. a core assessment ... [see below]
vi. at the conclusion of the core assessment there should be a Children in Need Plan which will involve the child and family members as appropriate and the contributions of all agencies ...."
16. Chapter 2 of the Framework document sets out the framework for the assessment of children in need, stating in paragraph 2.1 that a systematic approach is required. The assessment framework itself is shown in chart form, as a triangle with the child in the middle and the three domains (child's developmental needs, parenting capacity, family and environmental factors) on the outside. Each of the domains has a number of critical dimensions: e.g., in the case of child's developmental needs, matters such as health, education, emotional and behavioural development, identity, family and social relationships, social presentation and selfcare skills.
17. Chapter 3 deals with the detailed process of assessing children in need. It provides for an initial assessment within 7 working days and a core assessment within 35 working days. Paragraph 3.11 describes the core assessment:
"A core assessment is defined as an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context. While this assessment is led by social services, it will invariably involve other agencies or independent professionals, who will either provide information they hold about the child or parents, contribute specialist knowledge or advice to social services or undertake specialist assessments. Specific assessments of the child and/or family members may already have been undertaken prior to referral to the social services department. The findings from these should inform this assessment. At the conclusion of this phase of assessment, there should be an analysis of the findings which will provide an understanding of the child's circumstances and inform planning, case objectives and the nature of service provision ...."
18. Paragraphs 3.15 ff. describe the relationship between the core assessment and s.47 of the Children Act:
"At any stage, should there be suspicions or allegations about child maltreatment and concern that the child may be or is likely to suffer significant harm, there must be strategy discussions and inter-agency action .... Assessment of what is happening to a child in these circumstances is not a separate or different activity but continues the same process, although the pace and scope of assessment may well have changed ....
The way in which the initial and core assessments have been integrated into the processes for children who are considered to be, or likely to be suffering significant harm are set out in Figure 5 ...."
19. Thus Figure 5 is a flowchart for individual cases where a child may be at risk of significant harm. It is the flowchart which the council claims to have followed in this case. It is a complex chart which I shall not attempt to reproduce in this judgment. The key points may be summarised as follows:
i) where, after an initial assessment or subsequent strategy discussion the case is determined to be one of 'child in need; no significant harm', the authority should move to 'core assessment' and then to 'children in need services';
ii) where the decision is taken, after a strategy discussion, to move to a section 47 enquiry and the case is thereafter found to be one of 'child in need; significant harm confirmed', a decision must be taken whether to have a child protection conference: if so, the route is that described in iii) below; otherwise there is a route back to 'core assessment';
iii) where it is decided to have a child protection conference and the outcome of the first conference is the registration of the child on the child protection register, the matter can then either move to 'core assessment' or to a series of stages involving an outline child protection plan, core group meeting, detailed child protection plan, review conference(s) and review of the child protection plan, until such time as the child is taken off the register; and at that point there is either no further action or the case moves to 'children in need services'.
20. Issued with the Framework document but (as Mr Wise accepted) not itself forming part of the statutory guidance is a Core Assessment Record which is a standard form running to 40 pages and providing a framework for systematically recording the findings from the core assessment. Towards the end it provides a summary form for the listing of the conclusions reached in relation to the child's developmental needs and the other domains of the assessment framework, with objectives and plan of action, person or agency responsible, date by which objective is to be achieved, and outcome. It serves to highlight the detail required for a core assessment, the process of carrying out such an assessment (including the involvement of parents or carers, children and other relevant family members), and the fact that in completing the record it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help.
21. Moving away from section 17 of the Children Act and the statutory guidance relevant to the assessment of children in need, I should refer to section 1(1) of the Carers (Recognition and Services) Act 1995, upon which Mr Wise also relies for one of his submissions. It reads:
"Subject to subsection (3) below, in any case where -
(a) a local authority carry out an assessment under section 47(1)(a) of the National Health Service and Community Care Act 1990 of the needs of a person ('the relevant person') for community care services, and
(b) an individual ('the carer') provides or intends to provide a substantial amount of care on a regular basis for the relevant person, the carer may request the local authority, before they make their decision as to whether the needs of the relevant person call for the provision of any services, to carry out an assessment of his ability to provide and continue to provide care for the relevant person; and if he makes such a request, the local authority shall carry out such an assessment and shall take into account the results of that assessment in making that decision."
The relevant factual history
22. Although it goes back further, the history of the defendant's involvement with SB can be picked up for present purposes in November 1999, when the police referred SB's case to social services as a result of concerns about his offending behaviour. An initial child protection conference was convened on 1 December 1999. The conference had available to it a detailed report from a social worker. In accordance with the recommendation in the report, it was decided to place SB on the child protection register under the category of neglect. Details of a child protection plan were outlined: the case manager of the Youth Offending Team was to work very closely with the police and SB "in terms of providing an intensive package of support relative to their separate roles", there was an expectation that SB would continue to attend sessions at "Include" (a local scheme aimed at reintegrating those excluded from mainstream education), and the school nurse was to arrange a health appraisal for SB with the community paediatrician. There was also to be a psychiatric referral to the Thorneywood Clinic, and the social worker was to collate information from the claimants' GP.
23. In a child protection plan probably drawn up soon afterwards (though the date is uncertain), the identified needs and risks are expressed as "concern that [SB] is at risk of harm as a result of his offending behaviour". Under objectives and timescales, it is stated that "the aim of the plan is to engage [SB] in a multi-agency programme of activity including health, education & welfare needs, which will divert him from criminal activity" and that "an assessment will be undertaken to be clearer about [SB's] needs". The plan itself included provision for further work and assessments in various areas. It was apparently followed by a further plan bearing a date of 25 January 2000 and with similar, though briefer, content.
24. A child protection review conference on 24 February 2000 considered a short report prepared by, Mr Shaun Pollard, a social worker who has been responsible for SB's case since 1 December 1999. The report referred to various visits and meetings since the case was allocated to Mr Pollard. It stated that SB and his mother "have engaged on a basic support level but still need to take further steps for any productive and effective work to occur". By way of background information, it referred to SB's "prolific offending behaviour" and to the fact that the neglect issues arose from "lack of parental control or support for [SB's] behaviour, his education and his health". In relation to the protection plan it stated that liaison had continued and that certain work of assessment would continue, but that the health check showed no concerns. The recommendations were that SB's name remained on the register, that psychological assessment of SB be continued, that an ongoing monitoring and assessment of SB's home circumstances continue, and that there be continued liaison between agencies to co-ordinate education, crime reduction and health checks. The minutes of the review conference record inter alia that Dr Miller (a child psychologist) was to be asked to do a risk assessment and that SB's educational needs still needed to be addressed.
25. A case conference was held on 14 March 2000 in relation to a possible application for an anti-social behaviour order. The minute of the conference provides a fuller account of the position than do any of the child protection review documents. For example, it gives more details of SB's involvement with Include and of proposed sessions with a consultant child psychiatrist at the Thorneywood Clinic. I do not think it necessary, however, to set out such details.
26. The next child protection review conference was held on 30 June 2000. It was decided that SB be removed from the child protection register but remain as a child in need. The minutes are almost blank, save for a cross-reference to an "attached report". That report was probably a report of "events since the last conference" which is included in the court bundle. The "events" report refers in turn to "reports from Social Worker, Dr Miller [child psychologist], Dr Rands [community paediatrician]", none of which, however, is available to the court. It also mentions previous problems of making contact with SB and his mother, but states that "more recently 95% of appointments kept". It describes the pattern of SB's offending behaviour, current charges against him (robbery, theft and ABH) for which he was likely to be given a supervision order. In relation to "Include" it states:
"Still on the role at Elliott Durham [the school from which he had been excluded]. Mother needs to contact them which she has done but school have not responded. Concerns that [SB] wouldn't survive a day in school. Include finishes with [SB] in three weeks time as the project is closing down. Westbury [a pupil referral unit] will be involved from September."
The report also refers to housing problems, with tenants apparently complaining that SB was using his dog to intimidate them. Reference is made to the intended application for an anti-social behaviour order.
27. Mr Pollard states in his witness statement that child in need reviews are held every six months and that when SB's name was removed from the child protection register on 30 June 2000 but he continued to be a child in need, the child in need review should have been held in December 2000. That was delayed to await the outcome of the application for an anti-social behaviour order, but was eventually held on 30 January 2001 (i.e. after commencement of these proceedings).
28. For the purposes of the 30 January 2001 review Mr Pollard prepared an assessment described as being based on the Framework document. Under "family and environmental factors" it deals with family history, housing and income, and family and community resources. In relation to housing and income it states:
"His mother has discussed with me a desire to move from the St Ann's area several times in the past year. I have made representations to Metropolitan Housing and the City council although the present situation regarding the ASBO has been an obstacle. However more recent conversations with [AB] has indicated a desire to relocate in St Ann's ...."
On that topic, it is convenient to mention here that in a letter dated 30 November 2000 to the claimants' solicitors, the defendant stated that AB currently had a very low priority for housing, but that in the light of the recent assault on her she had two options: (i) to complete a further application for a council tenancy highlighting the assault on her, or (ii) to present herself as homeless.
29. Returning to Mr Pollard's January 2001 assessment, it deals next with the two further domains of the assessment framework, namely "child's developmental needs" and "parenting capacity", and the sub-topics relevant to each. It then expresses the following conclusions and recommendations:
It is clear from the assessment sessions and the records which we have of [SB] and his Family that they have experienced and been exposed to a great deal of violence from his Mothers previous partners.
It is also apparent that whilst [SB's] Mother clearly cares for him and is supportive, there are issues about his understanding of acceptable and unacceptable behaviour. This may be around boundaries and experiences but may also be around psychological aspects, which for some years now Social Services and Education have tried to get some formal assessment of. It is essential that [SB] and his Mothers motivation be supported and encouraged to ensure a clear and appropriate assessment of [SB] takes place. This may support appropriate education provision also.
It is essential, as soon as possible, that [SB] attends a school, which will meet his needs, as soon as possible. Social services will support this practically until some routine can be attained. However, it will require a higher level of motivation from [SB] and his Mother for there to be any possibility of success.
For any plan to succeed it requires [SB] to continue to have some level of stability without offending, and a more positive approach to education. His Mother and I must take on the role of preparing [SB] whilst the education Department must ensure that the resources they provide are meeting his needs.
My recommendations to this review are,
* That [SB] remain a 'Child in Need', to be reviewed in six months.
* That [SB] be assessed by Child and Family Therapy with support to access their service from his Mother and Social Worker.
* That [SB] be presented with an updated education plan as soon as possible to support access to appropriate educational provision.
* That Social Services, Police, [Youth Offending Team], Housing, [Child and Family Team] liaise closely.
* That [SB] continues to access the BUILD project for identity issues.
* That [SB] and his Mother be supported in accessing safe and appropriate housing in St Ann's, in view of recent events."
Those recommendations were adopted on the review.
30. Mention should also be made of a very short report apparently prepared for the defendant by a senior educational psychologist, Mr Wilson, the precise date of which is not clear. Mr Wilson sets out a chronology of involvement of "Educational Psychology" with SB, an involvement which covers the period November 1995 to March 1999. He states that in addition he met SB twice a term as part of the Include Management Team. He goes on to state simply that:
"At no point was it felt that a Formal Assessment of [SB's] needs would add to what was being offered. He could access everything thought appropriate without recourse to Statementing. The overriding issue was [SB's] very limited attendance for Include sessions."
31. Independent assessments have been obtained by the claimants from a social work manager and practitioner, Ms Read, and an educational psychologist, Dr Randall, primarily for the purposes of the anti-social behaviour order proceedings.
32. Ms Read's report concludes that SB's primary needs are:
* "A full psychiatric and psychological assessment which will determine or exclude Attention Deficit Hyperactive Disorder or any other disorder as a diagnosis.
* An assessment of educational special needs which will lead to the identification of an appropriate school for him
* An interim provision of home tutoring using materials which will focus on learning to read and write, and which will take account of [SB's] interest in computers and his need to use age-appropriate material
* An assessment of any identity needs he may have
* An active effort by his mother to support and involve herself in the operation of the Supervision Order according to the proposals agreed with the Youth Offending Team"
33. In an addendum dated 28 November 2000 Ms Read refers to a significant change of circumstances, namely that AB had been the victim of a serious assault and as a consequence she and SB were no longer able to live in the family home. The addendum report advises that the defendant "should as a matter of urgency exercise its powers under the Children Act to provide suitable alternative accommodation for [SB] and his family", and that the housing situation must be considered in the assessment of SB that was recommended in the first report.
34. I have referred already, in paragraph 3 above, to SB's profound difficulties as identified in Dr Randall's report dated 13 December 2000. Dr Randall's report concludes:
"[SB] is a boy with learning difficulties and co-morbid conduct and attention deficit disorder. He requires a statutory assessment by the LEA leading to a Statement of Special Educational Needs. This should lay out his needs and provision for them as suggested in this report. Failure to make adequate provision will result in a serious lack of effective opportunity for [SB] to develop appropriate educational attainments and acceptable social skills. His offending behaviour is more likely to continue under such circumstances."
The claimants' case
35. I shall deal first with the claimants' principal submission that the defendant has failed (i) to carry out a proper assessment of needs or (ii) to prepare a plan and provide the services to meet the claimants' needs. As to (i), Mr Wise submits that the defendant has failed to carry out a core assessment in accordance with the Framework document or to carry out any other form of comprehensive assessment in accordance with the material guidance. Since there is no good reason to deviate from the guidance, the failure to follow the guidance is in breach of s.7 of the 1970 Act and is unlawful. As to (ii), the failure to prepare a plan and to provide the services is said to follow from the failure to assess. The piecemeal approach adopted in this case has resulted in the absence of a proper plan and a failure to provide the services that SB and AB need.
36. Mr Wise further contends that the independent reports to which I have referred, from Ms Read and Dr Randall, show the kind of assessment which the defendant ought to have produced if the matter had been dealt with properly. The gulf between those reports and what the defendant has actually identified highlights the deficiency in the defendant's approach.
37. Mr McNamara, for the defendant, submits that the Framework does not impose a straitjacket but that in any event the matter was approached correctly in terms of the flowchart in Figure 5. This was a case where SB was considered to be at possible risk of significant harm. A child protection conference was held and he was placed on the register. Thereafter the procedures of child protection plan and review meetings were followed, until the decision was taken to remove SB from the register. At that point, in accordance with the flowchart, the case moved to 'children in need services'. There was no single document containing a 'core assessment', but at no point was there such a requirement. Assessment was a continuing process and there was no deficiency in the overall approach.
38. Moreover, submits Mr McNamara, account must be taken of the lack of take-up or of co-operation on the part of the claimants. The matter is expressed in this way in Mr Pollard's witness statement:
"The main difficulty the Authority has faced has been the take up of those services. Whilst SB and AB seem to engage with the Authority on a basic level, they seem to find it difficult to take further steps to take up the services. This is optimised by SB's lack of attendance/ co-operation with the Include Programme, SB and AB on several occasions refusing the offer of Link Workers, failure to attend the Child and Family Therapy Sessions, SB refusing to go to the Pupil Referral Unit and their failure to attend the Black Specialist Team meetings."
39. In effect it is said that, in so far as the defendant has failed to do more, it is not through want of trying. Best efforts have been used. So far as concerns the specific question of assessment of SB's educational needs, the defendant's position as expressed by Mr McNamara is that this could not be done until SB was in an educational environment (though reliance is also placed on the view expressed in Mr Wilson's short report that educational assessment would not add to what was on offer). More generally, it is not thought that any additional assessment would result in the identification of any further needs of SB or AB or in their being offered any further services.
40. In so far as the issue before me is whether the defendant followed a permissible general path, in terms of the Framework document's flowcharts, I take the view that it did. In the light of the circumstances known when it fell to be considered on 1 December 1999, this was properly regarded as a case where SB might be at risk of significant harm; and the flowchart in Figure 5 was therefore an appropriate flowchart. (This Framework was not issued until March 2000, but the same flowchart was included in earlier guidance.) There was no error of approach in moving to a section 47 inquiry, a child protection conference, registration on the child protection register and then the preparation of a child protection plan and subsequent reviews of that plan. When, at the end of that process, the decision was taken to take SB off the register, the flowchart did not formally require a core assessment to be carried out; nor can it be said to have required the defendant to move to a formal core assessment at any stage.
41. On the other hand, the whole tenor of the Framework document and of the other guidance that I have summarised above is that the outcome of the child protection path for a child in need should be something equivalent to a core assessment; and if that has not been achieved by the time of deregistration, it should be achieved at that point if the child remains a child in need. There should be a systematic assessment of needs which takes into account the three domains (child's developmental needs, parenting capacity, family and environmental factors) and involves collaboration between all relevant agencies so as to achieve a full understanding of the child in his or her family and community context. It is important, moreover, to be clear about the three-stage process: identification of needs, production of a care plan, and provision of the identified services. It seems to me that where an authority follows a path that does not involve the preparation of a core assessment as such, it must nevertheless adopt a similarly systematic approach with a view to achievement of the same objectives. Failure to do so without good cause will constitute an impermissible departure from the guidance.
42. Even after pursuing the course charted by McNamara through the documents in this case, and taking into account the involvement of a number of agencies, I cannot find in the documentation anything approaching an assessment capable of meeting those requirements. The child protection plan prepared and reviewed from December 1999 onwards was thin and left a great deal unresolved by the time SB was taken off the child protection register at the end of June 2000. Although there was no specific requirement under the guidance to move to a formal core assessment at that point, I do not think that it was open to the defendant, consistently with the guidance, to leave matters as they stood for another 6 or 7 months. At that stage there had still been no adequate assessment of need, there was no proper care plan and in those circumstances there could not be any properly directed provision of services. It was incumbent on the defendant to do much more in order to complete the task begun during the child protection review procedure. Although assessment can be a continuing process, the defendant cannot advance that as a legitimate reason for failing to proceed with the assessment at a time when more was so obviously needed.
43. Nor do I consider that the January 2001 assessment was adequate in terms of the guidance. True, it did at least adopt a more structured approach than anything previously done, examining the position in terms of the assessment framework. But it was essentially a descriptive document rather than an assessment, and in any event sufficient detail was still lacking both as regards the assessment itself and as regards the care plan and service provision. There was no clear identification of needs, or what was to be done about them, by whom and by when.
44. The position concerning educational need and housing need remains particularly unsatisfactory. As to education, the contrast between Dr Randall's report and the defendant's stance is striking. Dr Randall's report puts forward a cogent case that SB requires a statutory assessment of special educational needs. I reject, as wrong in principle and lacking any evidential support, the submission that nothing could be done in that respect until SB was in an educational environment. Further, Mr Wilson's view that a formal assessment would not add to what was on offer is contained in a report that is so brief and lacking in reasoning as to be of no real assistance to the defendant's case. The recommendation in January 2001, adopted on the review, that SB be presented with "an updated education plan" is lacking in substance and fails to meet the real point of concern.
45. As to housing, it is common ground that accommodation can be provided under section 17 of the Children Act and that the assessment of SB's needs should encompass the question of his housing needs. That assessment must take into account the position of AB as SB's mother, with whom he lives. In my view there has been no proper assessment of housing need in this case. The January 2001 report is the closest one gets, but even that does not contain a proper assessment of whether there is a need to move and, if so, to where and to what kind of accommodation.
46. Further, even if there has been an assessment of housing need, there has been no proper provision of services to meet that need. As is again common ground, it is the responsibility of the social services authority to meet the identified housing need. It can seek the assistance of the housing authority, but cannot simply wash its hands of the matter by referring those in need to the housing authority. Yet in this case that is effectively what the defendant has done. The defendant's letter of 30 November 2000 left it to AB to approach the housing authority, either for a new council tenancy or under the homelessness provisions. The January 2001 report may have improved on that to some extent by recommending that SB and AB "be supported" in accessing safe and appropriate housing, but even that is very vague, does not take matters any further in practice and does not amount to sufficient action to deal with an identified housing need. (What is required in relation to housing has changed over time and I accept Mr McNamara's submission that caution must be exercised in relation to what Ms Read says on the subject in her addendum report. But the fact remains that the matter has at no time been dealt with adequately by the defendant.)
47. In reaching my conclusions concerning the inadequacies of the defendant's approach I have taken into account the difficulties that the defendant has experienced in getting take-up and co-operation from the claimants. It is clear that matters have not been at all easy for those dealing with the claimants. I acknowledge the efforts that have been made in what must have been an extremely difficult and unrewarding case. On the material before me, however, I cannot accept the contention that it was not reasonably possible for the defendant to do more towards achieving an assessment. The indications are that the lack of co-operation was greater in the past than more recently. Further, to take the example of assessment for special educational needs, the true position is that it has not even been tried, rather than that it has been tried but was unsuccessful because of lack of co-operation. In all the circumstances this line of defence cannot succeed.
48. Finally on the general issue of assessment of need, I have to say that I am left with the impression that the defendant has concentrated unduly on the anti-social behaviour order proceedings and insufficiently on the discharge of its duty, in particular under s.17 of the Children Act, to assess SB's needs and to make provision for them. No doubt that focus has been the result of SB's very serious behavioural problems, but those problems cannot excuse a failure to comply with the s.17 duty.
49. In the light of those conclusions, it is not strictly necessary to deal with a separate submission made by Mr Wise in relation to AB. But it may be helpful for me to cover it.
50. Mr Wise submits that the defendant has failed to meet its obligations towards her as a carer as required by s.1 of the Carers (Recognition and Services) Act 1995, by failing to produce any assessment or care plan for her. AB's needs as carer should be considered in conjunction with SB's needs, and pursuant to schedule 2 to the Children Act consideration should be given to making such assessment at the same time as the s.17 assessment in respect of AB.
51. The short answer to that submission is that the local authority's obligation under that section to carry out an assessment of the carer's ability to provide care for the relevant person is dependent upon a request to that effect being made by the carer. In this case there was no such request by AB or on her behalf. Mr Wise relies on a letter of 23 November 2000 from the claimants' solicitors as containing such a request, in that, although the letter does not refer in terms to s.1 of the 1995 Act, it does refer to a request for a full enquiry into the "total needs" of both SB and AB. In my view, however, the letter is insufficiently specific to amount to a request under s.1 of the 1995 Act; and in the absence of any other request under that provision, I conclude that no such request was ever made and that s.1 was not engaged. Accordingly there was no separate breach of duty by the defendant under the 1995 Act.
52. Nevertheless, for the reasons given on the main issues, I have reached the clear view that this claim must succeed.
53. As to relief, I do not think that any declaratory relief is necessary: I hope that what is stated in this judgment makes matters sufficiently clear. I am minded, however, to grant a mandatory order requiring the defendant to carry out a full assessment of SB's needs under s.17 of the Children Act. Mr Wise submitted, and I agree, that a time limit should be imposed. Although Mr Wise suggested that a shorter period might be appropriate, I am inclined to allow the defendant the maximum period specified in the Framework document for a core assessment, namely 35 days. I will, however, allow counsel to address me further on relief if agreement cannot be reached between the parties in the light of this judgment.