|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Secure Services Ltd, R (on the application of) v The Youth Justice Board  EWHC 2347 (Admin) (29 September 2009)
Cite as:  EWHC 2347 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Judge of the High Court
Case No: CO/5246/2009
on the application of LONDON SECURE SERVICES LIMITED
|- and -
|THE YOUTH JUSTICE BOARD
|- and -
|THE DEPARTMENT FOR CHILDREN, SCHOOLS AND FAMILIES
Case No: CO/5570/2009
on the application of JV
|- and -
|THE YOUTH JUSTICE BOARD
THE SECRETARY OF STATE FOR JUSTICE
|- and -
|CORNWALL COUNTY COUNCIL
DEVON COUNTY COUNCIL
THE DEPARTMENT FOR CHILDREN, SCHOOLS AND FAMILIES
THE CHILDREN'S COMMISSIONER
Case No: CO/5908/2009
on the application of T
|- and -
|THE YOUTH JUSTICE BOARD
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
THE DEPARTMENT FOR CHILDREN, SCHOOLS AND FAMILIES
Paul Bowen (instructed by Bhatt Murphy, Solicitors) for the Claimant JV
Nicholas Bowen QC (instructed by The Howard League for Penal Reform) for the Claimant T
Gemma White and Naina Patel (instructed by the Treasury Solicitor) for The Youth Justice Board and The Secretary of State for Justice
Hearing dates: 29th and 30th, June 2009 and 1st, 2nd, 27th, 28th, 29th, 30th and 31st July 2009
Crown Copyright ©
Sir Thayne Forbes:
(i) In JR1 the Claimant is a disappointed tenderer, London Secure Services Limited ("LSS"), a private contractor and the owner and operator of "Orchard Lodge", in respect of which LSS tendered unsuccessfully for a contract.
(ii) In JR2 the Claimant is "T", a young person who was at all material times detained on Court Ordered Secure Remand ("COSR") at Orchard Lodge.
(iii) In JR3 the Claimant is "JV", a young person who was at all material times detained on COSR at the Atkinson Unit. It is to be noted that the unsuccessful tenderer in respect of the Atkinson Unit (Devonshire County Council) does not itself seek to challenge the YJB's decision not to award it a contract.
The Background and Relevant Legal Framework
"A comparison between STCs and LASCHs
29. Second, there are significant difficulties for the Secretary of State's argument in a comparison with the arrangements in secure children's homes. The Divisional Court explained the nature of these institutions in paras 8-9:
"8. STCs exist alongside secure children's homes run by local authority social services departments ("LASCHs"). According to the YJB, LASCHs "focus on attending to the physical, emotional and behavioural needs of the young people they accommodate [they] provide young people with support tailored to their individual needs. To achieve this, they have a high ratio of staff to young people and are generally small facilities, ranging in size from six to forty beds. [They] are generally used to accommodate young offenders aged 12 to 14, girls up to the age of 16 and 15-to-16 year old boys who are assessed as vulnerable.
9. If one takes, for example, a 15 or 16-year-old vulnerable male, he could be detained in a STC or a LASCH, the decision resting as much on matters of geography and place availability as on anything else. LASCHs are governed by different primary and secondary legislation. Pursuant to powers conferred upon him by the Care Standards Act 2000, the Secretary of State has made the Children's Homes Regulations 2001 (SI 2001/3967). These Regulations, and in particular regulation 17 which governs behaviour management, discipline and restraint, are structured differently from the Secure Training Centre Rules, and there is a distinct Good Practice Guidance issued in relation to LASCHs by the Secure Accommodation Network. It is common ground that removal from association and physical restraint purely for GOAD [good order and discipline] purposes are not permitted under the LASCH regime."
30. If allocation to STCs and to LASCHs is interchangeable in the way described by the Divisional Court, it is very difficult to see why PCC [physical control in care] to ensure GOAD is essential in STCs, but not essential in LASCHs. When this point was put to him, the Secretary of State sought to meet it by saying that LASCHs are significantly different institutions from STCs. I examine that claim in the following paragraphs, but first it should be noted that, as the Children's Commissioner pointed out in valuable submissions to this court, the view expressed by the Divisional Court was fully justified by evidence before it that had gone unanswered by the Secretary of State. That evidence was provided by Mr Roy Walker, a manager of a LASCH and deputy chairman of the Secure Accommodation Network ("SAN"), the umbrella organisation for LASCHs. He said:
"LASCHs provide care for the same groups of young people who may also be placed in [STCs] and in fact STCs are associate members of SAN. By way of example we presently have children in the age range of 12 17 including those charged with serious offences up to and including murder as well as sentenced young people."
31. The Secretary of State said that that was an incomplete picture. Differences between STCs and LASCHs included that LASCHs also accommodated children in care, rather than involved in the criminal justice system, of as young as ten years; could refuse to accept a particular child, as an STC could not; and had a higher staffing ratio than did STCs.
32. The first of these points is irrelevant. The question is whether PCC to enforce GOAD is necessary for the range of children that find themselves in STCs. If it is needed there, it is needed for those children if they find themselves in a LASCH. That there may be other children in LASCHs for whom the regime is unnecessary or inappropriate only goes to demonstrate a further difficulty for the case, which will appear when it is tested against the requirements of the Convention. PCC to ensure GOAD is made available to an institution in "blanket" terms without any formal consideration of the types of person within the institution for whom it is appropriate. I agree that the second point has some potential relevance, but without further information about the extent and terms in which a LASCH can or does refuse a placement it is impossible to assess its force. Had the point been raised earlier it would have been important to have the view of Mr Walker upon it. That this is a significant difference does not seem consistent with the general tenor of his evidence.
33. The third point, that STCs have a worse staffing ratio than LASCHs, caused the court great concern when it was raised before us. Prudently, Miss Lieven declined an invitation to explain the exact relevance of the point, contenting herself with saying that it was merely a respect in which the two types of institution are different. It is hardly necessary to say that if the Secretary of State was indeed influenced in his policy of introducing PCC to enforce GOAD in STCs but not in LASCHs by any need to cover defects in staffing provision in the former, commercially run, establishments, then that would be fatal to any prospect of justifying that policy in Convention-compliant terms."
"4. Places within Local Authority Secure Children Homes (LASCHs) and Secure Training Centres (STCs) will be utilised for the placement of young people under the age of 15. The balance of any capacity in this sector will be utilised for the placement of other young people assessed as vulnerable. Those young people not placed in LASCHs or STCs will be placed in Young Offenders Institutions (YOIs). The YJB's Placement Protocol sets out in detail the process and criteria for placing young people in secure accommodation."
"3. The YJB recognises that the young people who enter the youth justice system are a diverse group with complex needs; many have significant risk factors, mental health problems, are members of gangs, have care histories, poor school attendees and/or may be chronically abused or abusers.
5. To ensure that the key functions relating to the placement process are met the YJB has established a Placement and Casework Service (P&CWS) which is appropriately resourced with staff trained to make placement decisions in a timely and professional manner.
6. P&CWS will endeavour to place children and young people into establishments that can most effectively manage their identified individual needs and risk factors. Responsibility for assessing needs and identifying risk factors lies with the Youth Offending Team (YOT).
10. Places within secure children's homes and STCs will be used mainly for the placement of boys under the age of 15 and young women under the age of 17. The balance of any capacity in this sector will be used for the placement of boys aged 15 or 16 who have been assessed by a YOT as having significant risk factors which would make them particularly vulnerable if placed into a YOI. Young people not placed in SCHs or STCs will be placed in YOIs. The YJB's Placement Protocol details the process and criteria for placing young people in secure facilities."
"Youth Justice Board
This document describes the process and sets out the criteria for the placement of young people in the secure estate.
4. The Youth Offending Team (Yot) is responsible to alerting the YJB Placement Team to each young person appearing before a court where an outcome of a placement to a secure facility may be required. Ideally this should be no later than the day before the court appearance.
5. The YJB Placement Team will allocate places to young people who are remanded or sentenced by a court based upon the vulnerability information provided by the Yot and the beds available on the day of the court appearance.
The assessment of a young person's vulnerability
1. The Youth Offending Team is required to undertake a vulnerability assessment on all young people appearing before a court where an outcome of a placement to a secure facility may be needed and providing this information to the YJB Placement Team.
2. The Youth Offending Team is responsible for undertaking the initial assessment of a young person by completing the ASSET documentation. The ASSET tool sets out how the Yot should consider the vulnerability of the young person and evidence their concerns. The relevant section in the ASSET documentation is headed "Indicators of Vulnerability". This is in the process of being revised by the Youth Justice Board.
The following factors should be [taken] into account by the Yot in their assessment, whether they are or have been:-
- at risk of self-harm or suicide
- bullied, abused or neglected (behaviour of others);
- affected by separation, loss, change of care (other events);
- risk taking, including substance misuse (own behaviour); and
- whether in the Yot's view are able to manage and cope within a YOI environment.
5. In order for the YJB to make a final judgement as to which particular placement or type of establishment is the most suitable for each young person the following factors are considered:
- Yot assessment of vulnerability, and in particular risk of self harm or suicide;
- Age and gender of the young person which informs which type of accommodation is legal and suitable;
- Type of offence;
- Information from the Yot and other sources;
- Previous offending history and whether they have previously been in a secure facility;
- What particular services they may need due to their individual circumstances (healthcare, substance misuse, ante-natal care);
- Where places are available in relation to their home.
6. Where there are competing cases for available beds in LASCH and STC accommodation those beds are normally prioritised as follows, although individual circumstances are considered on a case by case basis;
- 12-14 males or 12-16 females subject to DTO/S90/1 sentences;
- 12-14 males or 12-16 females made subject to a court ordered secure remand;
- 15-16 males assessed by a Yot as at risk of, or having previously made, a serious attempt of self harm or suicide either on remand or sentenced;
- 15-16 males assessed as vulnerable by a Yot where a high number of risk factors are present where self harm or suicide is not evident;
- 17 year old sentenced males or females assessed by a Yot as at risk of, or having previously made, a serious attempt of self harm or suicide.
8. The final decision on placement will be made taking into account the available vacancies, current circumstances of the young person and the total number of young people requiring non prison beds.
9. If the Yot's assessment is that the young person is not vulnerable boys aged 15 and over and 17 year old girls will be placed in their catchment YOI.
10. Placements in the secure estate are normally made as follows:-
Male & Female
|15-16||Male||COSR/Custodial Sentence||If assessed as vulnerable Lasch/STC
|RC/Custodial Sentence||If not assessed as vulnerable YOI
|17||Male & Female||RC/Custodial Sentence||Can only be remanded to YOI.
If sentence[d] and assessed as vulnerable Lasch/STC
"6.10 Placements in the secure estate are normally made as follows (this is a guide only and depends on the availability of places):
|12-14||Male and Female||COSR/Custodial Sentence||Secure children's home/STC|
|15-16||Male||COSR/Custodial Sentence||If assessed as having significant risk factors secure children's home/STC|
|15-16||Male||RC/custodial sentence||If not assessed as having significant risk factors YOI|
|15-16||Female||COSR/custodial sentence||Secure children's home/STC|
|17||Male and female||RC||Can only be remanded to a YOI|
||YOI or, if assessed as having significant risk factors, secure children's home/STC
"ASSESSMENT AND VULNERABILITY
46. It is the responsibility of the YOT to carry out an assessment of a young person who has offended and for whom they have responsibility. They do this using an assessment form called an ASSET. This ASSET is a comprehensive tool used by YOTs to record their assessment of every young person who has committed an offence. It is used by the YOT for young people in both custody and in the community. On the basis of the ASSET the YOT puts together a risk management plan to address offending behaviour; this process is undertaken whether or not custody is the outcome.
47. An ASSET is passed to the YJB if a young person is likely to be remanded or sentenced by a court [and] should be current and relevant to the offence before the court. As part of the assessment the YOT has to determine whether or not a Young Person shows indicators of vulnerability.
48. The YJB undertakes a completeness check on every ASSET received as part of the placement process. The quality of these forms can be variable but when completed thoroughly and accurately the forms are an important part of informing the final placement choice of a sentenced young person.
49. The statutory provisions under which the YJB operates neither use nor define the term "vulnerability". The YJB uses the term to encompass a wide range of circumstances in which a young person may pose a risk to him or herself or others. Vulnerability is a relative expression and covers a wide range of factors and needs. Moreover, vulnerability can and does change on a daily basis depending on a number of factors that can influence and impact on the lives of young people both inside and outside of custody. Key to the YJB's placement decisions is the identification of a number of key risk factors that may impact on the needs of young people. The YJB uses individual or a combination of those to identify the overall profile of a young person to determine the appropriate placement. The YJB works hard to ensure that risk can be appropriately managed in all types of establishments within the secure estate and that young people are appropriately placed to best match the risk factors to the available place.."
We are coming to the end of the first year of a new round of contracts with Local Authority Secure Children's Homes (LASCHs). These contracts are with 15 providers. Five providers have a 5 year contract, whilst ten were awarded a 2-year ("Tier B") contract. Those ten contracts are due to expire in March 2006.
This paper will assess the options for extending some or all of the Tier B contracts for periods of up to 3 years. It will also update members on other key issues of note in relation to 2 of the YJB's LASCH providers (Orchard Lodge and Aycliffe).
3. Following a competitive tender in 2003, the YJB has contracted with 15 Local Authority Homes for a total of 235 places. This is a reduction on previous levels of commissioned LASCH places, as we were required to substitute funding from LASCH contracting to pay for places in the new Oakhill STC. Five LASCHs have signed a contract with the YJB which gives a contracting commitment of 5 years, whilst the remaining ten have agreed contracts for 2 years, extendable to 5.
- LASCHs were advised that performance, value for money and location would all be factors in the decision as to which contracts would be extended. By keeping the majority of LASCHs on short-term contracts, we could provide greater "incentives" for those 10 LASCHs to perform as well as they could (essentially because they would be in competition with each other). It should be noted that this appears to have been the case the only LASCH to have been penalised under our contracts thus far is East Moor, one of the LASCHs with a 5-year contract.
- Without having a clear strategy for the future secure estate, Committee members were reluctant to commit to long-term contracts for more than the five Tier A LASCHs anyway
Rationale for Extending all LASCH contracts beyond 2006
4. The YJB Strategy for the Secure Estate, currently a consultation draft, states that all boys under 15 and girls under 17 will be cared for in STCs or LASCHs. This number totals approximately 320. Furthermore, there are an additional 450 boys aged 15-16 with identified risk factors. As the total number of places in the non-Prison estate is 509, there are approximately 260 vulnerable young men (aged 15-16) who must therefore be accommodated in Prison Service accommodation.
(a) Young people who must be placed in a LASCH/STC
(indicative figures only):
|girls aged 10-16||110|
|boys aged 10-14||180|
|boys aged 15-16, remanded to secure accom.||30|
(b) Boys aged 15-17 who are deemed to have identified risk factors:
(indicative figures only):
|boys aged 15-16||450|
|boys aged 17||360|
5. We currently have 119 LASCH beds secured in five-year contracts and 274 in STC contracts. This totals 393 and in fact exceeds the core 320 places we need for those who must be placed in a LASCH/STC.
6. To tackle the issues for boys with identified risk factors we are looking at piloting enhanced units in the Prison Service (akin to those being provided for 17 year-old women). However even if we were to make a decision to substitute funding from LASCH Tier B places to Prison Service provision (i.e. to the development of an enhanced regime), our experience of the Prison Service's ability to implement major new developments is such that we could not expect any new services to be in place for at least 2 years from inception. Based on these assumptions, the options outlined below all assume that the YJB will need to extend Tier B contracts by at least 1 year, to March 2007, but probably longer.
"If the Youth Justice Board for England and Wales (YJB) is to work with its partners to continue the transformation of the secure estate for children and young people, it is vital that we set out our plans as clearly as possible This strategy sets out the assumptions and principles that the YJB will use in developing the secure estate and the steps it intends to take in the next three years to deliver these within the available resources. "
"Since April 2000, considerable improvements in the secure estate have been achieved. These include:
- significant progress in the establishment of a discrete secure estate for children and young people, in contrast with the situation before 2000, when there was little separation from adults
- the establishment of a national placement system that matches placement to need, subject to resource constraints "
"The YJB's commissioning plans over the next three years are based on the following premises
- All boys under 15 and girls under 17 will continue to be cared for in secure training centres (STCs) or secure children's homes, and the overall numbers in these establishments (unless there is access to significant further resources) will not exceed 510. Consideration will be given to further specialisation of regimes in the non-YOI sector in seeking to ensure that individual needs are better catered for.
- The YJB values highly the contribution secure children's homes make to the secure estate and wishes to sustain the current level of provision. In order to give more financial and operational security, the YJB will revisit contractual arrangements with secure children's homes on shorter contracts, to see if more long-term arrangements can be entered into.
If the [custodial] population falls to a point where there are routinely more than 8-10% of beds unused, then the YJB plans to decommission places from its core agreement with the Prison Service. Precisely where decommissioning occurs will depend on the age distribution and character of the custodial population at that time, but places are likely to be decommissioned first in split-site Prison Service YOIs providing older, large-scale, cell-block accommodation. "
The YJB currently contracts for 235 places for children and young people in Secure Children's Homes (SCH) across 15 establishments in England and Wales. Recent developments mean that this will become 218 contracted places in 14 establishments with effect from 1 April 2008. The SCH Commissioning Plan (the Plan) gives services providers an indication of the YJB's commissioning intent for the renewal of SCH contracts and is based on an assumption that supply will reduce to 218 beds from 1 April 2008.
The Plan sets out an approach to securing provision for 10 to 14 year old boys, girls under 17 and vulnerable boys aged 15 to 17 held in the secure estate beyond March 2009.
Supply and Demand
- SCH facilities will provide first for the youngest and the least mature people in secure custody and for those who have assessed risks and needs that require the most intensive support. This includes boys between 12 and 14, girls under 17 and more vulnerable 15-17 year old boys.
- The YJB will commission as many beds in SCHs [as] are affordable, indications are that the YJB will require 205 beds in England and Wales assuming 93% occupancy levels.
- Priority will be given to addressing regional imbalances in supply and demand and using investment of the built environment to support this as well as to improve SCH provision for all placements.
- Priority will be given to expanding provision in the South East and the North West and potentially decreasing supply in the North East.
- The YJB see SCH facilities as meeting the needs of the youngest and most vulnerable children and young people in custody due to their particular characteristics, in particular: being smaller units with higher staff ratios and their close links with local authority provision and services in the communities they work with. Whilst SCH and STC will continue to be seen as interchangeable in the short term, this role for SCHs will be formalised within placement protocols.
"The Re-Commissioning of SCH Provision
31. YJB currently contracts with 14 Secure Children's Homes (SCH) in England and Wales for 219 places. Of the 14 contracted SCHs, 13 are in England and one in Wales (Hillside). The contract for Hillside expired on 31 March 2009 and the contracts for the other 13 SCHs are due to expire on 30 June 2009. Accordingly, in around November 2007 YJB initiated a competitive tendering project to commission sufficient good quality, outcome focused and cost effective secure accommodation services in SCHs in England to meet fully the needs of 12-14-year old boys, girls up to and including 17 and more vulnerable 15 to 17 year old boys placed there. New SCH contracts for England were to be put in place from 1 July 2009. Outside of the competitive tendering process, but as part of the same commissioning process, a replacement contract for Hillside was put in place commencing on 1 April 2009.
32. It is important to note that this commissioning exercise did not reflect a change of policy in relation to YJB's use of SCHs. The process was undertaken to find replacement contracts for existing Agreements that were originally tendered for in 2004 and would expire in 2009.
The Exclusion of Hillside
33. The decision to exclude Hillside in Wales from the competition was taken because of a number of factors. Wales is a country with its own legislature and cannot be realistically compared with a large district/conurbation in England such as London. The Welsh Assembly Government has responsibilities for a range of devolved policy areas including education and training, health social welfare, safeguarding, housing and local government that are all of critical importance to the youth justice system. Wales has devolved legislative power under these subject areas under the Government of Wales Act 2006. London is part of the south east region and not a region in its own right; the title of "London and the South East" was only used on the regional map in the ITT for the avoidance of doubt as the assumption is sometimes made that the "South East" does not necessarily include London. London does not have a devolved government with legislative powers.
34. Hillside is also the only SCH in England and Wales which attempts to meet the very specific needs of Welsh young people in custody. For example, Welsh young people are taught under the Welsh school curriculum (Curriculum Cymreig) which has a different set of requirements around a range of subject areas, such as history. The curriculum also contains the requirement that young people should experience bilingual education i.e. some education should take place in Welsh. Arrangements also need to be made for careers advice (for those over school leaving age) to be delivered by Careers Wales. Finally, there is a minority of young people from Wales who think and learn in Welsh as their first language, and the YJB needs to take these needs into account when commissioning services.
35. Although Hillside was not included in the competitive exercise, the contract award came under the umbrella of the commissioning project and Hillside had to submit a full response to our specification in the same manner as the English homes and was fully evaluated. If the response had not been of sufficient quality, or if costs had been prohibitively high, then no contract would have been offered.
The Exclusion of STCs
36. Although, for reasons which I explain below, STCs are broadly interchangeable with SCHs, and between them can meet a wide range of needs of young people, they were not included in the exercise either. This is because STCs are operated according to PFI contracts of either 15 or 25 years. YJB have 4 STC contracts and these were let following open and fair competitions. These contracts have end dates between April 2012 and August 2029 and could not therefore be included in this competitive exercise.
37. Although STCs were not included in the competitive tendering exercise, their provision was taken into account in assessing demand for SCH places because they are broadly interchangeable with SCHs, and between them can meet a wide range of needs of children and young people. STCs and SCHs together serve the same group of young persons, all of who[m] may legally be placed in either type of unit. Some individuals may be suitable for accommodation in either type of unit. Others may be more suited to one type of unit. For example, those needing vocational training may be better suited to an STC. All depends on an individual assessment of a person's needs and best interests but we believe that together they can meet the diverse range of needs of children and young people.
38. Important respects in which SCHs and STCs are similar include:
- Both have relatively high levels of staffing allowing them to operate a high quality of education and/or training together with a focus on addressing offending behaviour
- Both provide the majority of services for children and young people on-site
- Both permit the use of restraints, but only as a last resort
- Both are required to comply with the National Standards for Youth Justice
- Both are monitored by the YJB as well as inspected annually by Ofsted.
42. Having considered the current level of STC provision as part of our assessment of demand for STC places, it follows that when each of the STC contracts become due for renewal we will undertake a thorough analysis of the demand for SCH and STC placements at that time and make future contracting decisions accordingly.
The Project Planning Process
43. The Department for Children, Schools and Families (DCSF), who have responsibility for making grants to local authorities to assist with the capital cost of providing secure accommodation in accordance with section 82(2) of the Children Act 1969, joined with YJB for the commissioning project so that applications for grant funding could also be assessed by DCSF to better align the award of grants with YJB's contract awards.
44. The procurement exercise was conducted under the Public Contracts Regulations 2006 and I believe that the process was conducted in an open, fair, transparent and non-prejudicial manner.
45. Because the tendering process did not entail a change of policy, YJB did not conduct an external consultation exercise, although every SCH that YJB had a contract with was visited by a member of the project team, prior to the issue of the Invitation to Tender (ITT), to inform them of the forthcoming commissioning exercise and gather their views. There was no requirement to contact the Children's Commissioner, particularly at the tender stage when no contract award decisions had been made. However, along with a number of other interested parties the Children's Commissioner was notified of the contract award decisions.
46. There was no statutory requirement to conduct a formal equality impact assessment. Nor was an equality impact assessment otherwise carried out prior to the issue of the ITT because there was no change of policy and the contract decisions had not been made. However, the YJB specification is clear on the need to monitor, promote and take account of equality when delivering the services. Relevant examples from the specification include:
- Para 6.1:
- Para 6.3:
- Para 6.4.9:
- Para 6.8:
All SCHs also have to comply with the relevant sections of the Children's Homes Regulations 2001 relating to race and equality.
47. Prior to the issue of the ITT, YJB asked all homes that were licensed and registered in England to register an interest in the re-commissioning project.
The Invitation to Tender
49. The ITT was subsequently issued on 15 August 2008 to the 14 SCHs who responded to the expression of interest exercise. It included a comprehensive summary of the evaluation criteria (Section B, Part 2 of the ITT document) together with a guide figure as to 209 being the number of SCH places that might be purchased (Section B, Part 1, p10 of the ITT document). This figure was based on historical average demand across SCHs and took account of the number of contracted beds (301) available in STCs using data collected for a two year period ending in December 2007, because SCHs and STCs are broadly interchangeable and legally individuals can be placed into either type of establishment. Indeed, this was also the basis on which demand was assessed for the 2004 tendering exercise.
50. The figure of 209 places was clearly stated to be a guide, the ITT making clear that "YJB can give no guarantee to purchase a minimum or any number of places via this exercise". The reason for this is that there are many factors that can influence the custody rates of young people, not least the use of preventing offending programmes and use of alternatives to custody, given that the stated aim of the YJB being to reduce custody. This makes it very difficult to accurately forecast figures on a long term basis for this group.
51. On 10 September 2009 all SCHs receiving the ITT also attended a YJB meeting for bidders, where the evaluation criteria and methodology were explained in detail. Representatives from Orchard Lodge and Atkinson Secure Unit were present at the meeting and did not raise any objections to the evaluation criteria, methodology or markings or weightings to be applied. In fact no objections were raised to the evaluation by any SCH throughout the process.
52. The best interests of the young people placed in YJB contracted SCHs would not be met by the provision of poor quality services and the criteria therefore focused on quality.
53. Cost was also a criteria because places in SCHs are the most expensive in the secure sector It was important that SCHs tendered competitive prices to enable YJB to purchase the number of places it required.
54. In the evaluation two criteria were scored: quality (worth 65% of the marks) and cost (35%) and this was clearly indicated in the ITT (Section B, Part 2).
55. There is no legal obligation for YJB to place young people in any specific region, and geographic proximity was not scored as there was no rational scoring mechanism that could be applied fairly and consistently to a fixed supplier base. We used a broad regional approach, which still allowed quality of service provision to be the primary factor in the evaluation. A similar approach to geography was used for the YJB 2004 tender exercise. Again it is important to highlight that all bidders were aware that geography would not be scored and no objections to this were raised during the tender process.
57. The regional approach we took involved England being divided into four regional corridors (North, Midlands, South West and South East) in order to determine the level of historic demand for SCH and STC beds within each corridor. Following the evaluation process the SCHs were ranked in order of their final overall scores (based on 65% quality and 35% financial). We then undertook to match the demand for beds in each regional corridor by allocating beds on the basis of this final ranking. However, we had clearly stated in the ITT that some beds could be assigned from adjacent corridors to meet the demand in those corridors where a shortfall of SCH beds exists.
58. A worked, theoretical example is provided below.
England was divided into four regional corridors (North, Midlands, South West and South East) and the level of historic demand for SCH and STC beds within each corridor over a three-year period was calculated. We then took into consideration the location of each of the STCs to give the requirement for SCH beds in each regional corridor, for example:
Corridor SCH places required
Following the evaluation process the SCHs were ranked in order of their final overall scores (based on 65% quality and 35% financial). We then undertook to match the demand for SCH beds in each regional corridor by working methodically through the final ranked list, as demonstrated in the example table below. Beds could be assigned from adjacent corridors to meet the demand in corridors where there was a shortfall of SCH beds of sufficient quality, for example:
|Number of beds offered to YJB by each SCH||Corridor in which home located||Allocation of beds|
|Starting position of beds required in each regional corridor
South East 20
South West 30
|85%||30||North||30 beds netted off North figure of 80 to give revised position as follows:
South East 20
South West 30
|80%||20||North||20 beds netted off North figure of 50 to give revised position as follows:
South East 0
South West 30
|75%||25||Midlands||25 beds netted off Midlands figure of 40 to give revised position as follows:
South East 20
South West 30
|70%||20||South West||20 beds netted off South West figure of 30 to give revised position as follows:
South East 20
South West 10
|Fifth placed||65%||20||South East||20 beds netted off South East figure of 30 to give revised position as follows:
South East 0
South West 10
|60%||40||North||Only 30 beds required in North, therefore 10 remaining beds from this home netted off Midlands, which is an adjacent corridor. Revised position as follows:
South East 0
South West 10
|Seventh placed||55%||15||South West||Only 10 beds required in South West, therefore 5 remaining beds netted off Midlands, the only adjacent corridor with an outstanding requirement:
South East 0
South West 0
The Bid Evaluation
59. The evaluation of bids was undertaken by an evaluation panel specifically selected because of its members' expertise and experience (including SCH managerial roles) of the SCH services required by the YJB. Using the criteria and scoring methodology described in the ITT (Section B, Part 2), an overall score was allocated to each bidder and a final ranking list compiled on which contract award decisions were based.
60. Both Orchard Lodge and the Atkinson Secure Unit were treated on the same basis as all the other SCHs in the competition. However, the results of the evaluation meant that neither SCH gained sufficient marks to be awarded a contract. Their scores were 58.27% and 57.75% respectively for quality, (respectively 12th and 13th out of the 14 bids) and their best financial options were scored at 80% and 76%. When quality and price scores were combined in accordance with the evaluation criteria, Orchard Lodge scored 65.9%, ranking 11th out of 14 bids and the Atkinson Unit scored 64.1, ranking 12 out of 14 bids.
The Demand Calculation
61. By the time the evaluation was completed we were able to update the indicative figures as to SCH places required using data for the period from January 2006 to December 2008. Accordingly, overall we analysed three years of historical data of demand for SCH and STC places to obtain an annual average of 463 plus 29 (a figure calculated by reference to the historical percentage (94%) of actual placements made by YJB) to cater for demand fluctuation. The number of contracted STC beds (301 which remain fixed until 2013) was then subtracted from the total of 492 to obtain a revised figure of 191 SCH places. Again, the data looked at demand across both SCHs and STCs in the same way as the indicative figures had because they are broadly interchangeable and legally individuals can be placed into either type of establishment.
62. The revised figure reflects the fact that there has been a downward trend in the demand for SCH places in recent years, and a high number of vacancies over the past year. As a result, in April 2008 for example, we reduced the number of contracted beds in Orchard Lodge by 2 to 16.
63. The source of this reduction in demand appears to be a reduction in the number of 12 to 14 year-olds being remanded or sentenced to custody. The average number of 12 to 14 year-olds in custody for 2007/2008 was 190; the average number in 2008/2009 was just 168. This represents a 8% reduction. The number of commissioned SCH beds has been reduced from 219 to 191; a reduction of 13%. In 2008/2009, the average monthly occupancy rates for STCs and SCHs were 80% and 89% respectively; i.e. one in five STC beds was unoccupied and one in ten SCH beds was unoccupied.
64. The downward trend in the number of children and young people being remanded or sentenced to custody has continued throughout 2009 since our contract award decisions. If we were to use the same approach that formed the basis of our contract decisions, but to analyse three years from January 2006 to December 2008) then the revised optimum number of SCH beds that we would seek to commission would be 184. If we were to analyse the last two years of data only (i.e. from June 2007 to May 2009) then the optimum number of SCH beds that we would seek to commission would be 174.
66. Budgetary cuts were not therefore the reason for the reduction in the number of commissioned SCH beds. Although there were indications that the YJB budget allocation for SCHs was to have been reduced, ultimately we received the full required settlement to enable us to contract for 191 places. The decision to proceed with 191 beds was approved at a full YJB board meeting on 4 February 2009. ".
In preparation for this new round of tendering the YJB drafted a Commissioning Plan with the following overarching aim:
- The YJB will work in partnership with the Department for Children, Schools and Families (DCSF), Local Authorities and service providers to support and meet the needs of children and young people in custody. We aim to commission good quality outcome focused and cost effective services with a resettlement and reducing offending focus and support DCSF to maintain welfare bed provision within a mixed economy.
The key objectives were to:
- Establish needs and priorities; deliver sufficient secure accommodation of appropriate quality that meets the needs of 12-14 year old boys, girls up to 17 and more vulnerable 15 to 17 year old boys.
- Supply and demand; better match demand and supply on a regional basis;
- Manage cost and value for money to the YJB through appropriate risk transfer to the provider and an appropriate mixed economy of provision; and
- Manage quality and drive up performance in the SCH market, providing a flexible service that can meet the needs of children and young people over the life of the contract and be flexible according to changes in the levels of demand.
- Improve the built environment through investment in refurbishment works and capital expansion subject to affordability constraints and the objectives of the YJB and DCSF.
As part of the process to assess the correct level of demand, YJB looked at data over a period of 24 months on a regional basis using the regional corridors developed for the YJB 10 Year Estate Development Strategy. The exercise produced indicative figures for demand in the regional corridors and will form the basis for the number of SCH places that YJB will look to purchase through this tendering exercise (see Figure 1).
SCH Regional Demand
Whilst YJB can give no guarantee to purchase a minimum or any number of places via this exercise "subject to the results of the quality and financial evaluation" YJB will use these figures as a guide when deciding on the number of places it may purchase at SCHs in each region. However, there will need to be some flexibility around the numbers to allow YJB to place young people outside their home regions when required. It is also likely that in some regions supply will not meet demand and where this occurs YJB will look to purchase additional places in other regions where there is excess capacity. Part 2 of this Section B gives further details of the evaluation process.
(8) Evaluation and Evaluation Criteria
The Contract will be awarded to the Tenderer submitting the most economically advantageous bid taking into account quality, cost, geography and any capital investment plans.
The factors to be taken into account for the evaluation are detailed below, together with the weighting allocated to each criterion. The importance of each criterion in the evaluation is indicated by the weighting allocated to it: the higher the weighting number, the more important it is in the evaluation.
Section B Part 2
SCH Recommissioning Evaluation Criteria Information for Bidders
This document outlines the broad principles and criteria that will be used throughout the evaluation of the submissions received from secure children's homes (SCHs) as part of the Youth Justice Board's Recommissioning project. The YJB and Department for Children, Schools and Families (DCSF) will evaluate submissions received in response to the Invitation to Tender (ITT) against an agreed set of evaluation criteria. These criteria include:
- quality (including the existing built environment);
- cost (including the overall budget available);
Other factors which will be included as part of the evaluation process include;
- the capital investment proposals of each SCH;
- the impact of any decisions on potential welfare bed provision;
- the impact of any decisions on the wider secure estate;
- the risks associated with any proposed contract award or capital grant.
Both the quality and cost elements of each submission will be scored by the YJB's evaluation team. These scores will then be used to calculate an overall rating for each bidder. Quality will be worth 65% of the final rating and finance 35%. The SCHs will be ranked in order and the YJB will then begin allocating beds according to their demand figures in each regional corridor. A number of different scenarios will be modelled to assess both affordability and the impact on the YJB's ability to place children as close to home as possible. "
"3. There are, attached to this witness statement, two tables, Table 1 and Table 2. This is the data we used to inform our demand for the 191 beds ultimately contracted for.
4. Table 1 shows the 24 month period of demand which we stated we had looked at in the ITT. In red [reproduced in bold italics] I have highlighted the figures we gave out. These figures are about placements in any SCH not just the S/E, and, therefore include children and young people placed in and outside the region, which will always occur (as the statistics for 28% for London young people in Orchard Lodge shows). Table 1 therefore shows the demand (which is in reality placements) over that 24 month period and also shows the number of STC places used and the number of STC beds we had contracted for.
5. What the YJB showed in the ITT was just the SCH totals, to give indicative figures. If we had shown both SCH and STC figures in the ITT it would have shown a net demand of 205 of SCH beds required.
Total of 476 (average number places used)
Plus necessary "headroom" (assume max 94% occupancy rate of contracted beds) 506
Less STC beds of 301
Total SCH requirement = 205
6. The second table shows updated figures for 3 years using the same method, giving the net total of 191 once headroom and STC supply have been factored in. The overall demand for SCH places has gone down but the S/E SCH figure has stayed the same. The figure of 28 S/E SCH places ultimately required results from the factoring in of headroom and STC supply.
7. For the 2004 exercise we also used similar methodology and used the number of STC beds available to offset against the number of SCH beds needed.
Total of 463 (average number places used)
Plus necessary "headroom" (assume max (4% occupancy rate of contracted beds) 492
Less STC beds of 301
Total SCH requirement = 191."
"3. There are, attached to this witness statement, 2 exhibits to which I refer in the course of this statement. Exhibit 1 is the YJB Commissioning Plan for Secure Children's Homes. It is a working document that was prepared over a number of months to help inform the exercise of commissioning SCHs in 2008. It was signed off by the Project Board in July 2008. The minutes of that meeting are at Exhibit 2.
4. The principle of looking at SCH and STC demand and STC supply in order to determine the required SCH provision was established in the Commissioning Plan. I refer to Figure 8, which demonstrates that total demand (in both SCHs and STCs for a two year period ending December 2007, plus headroom based on 93% occupancy, less STC supply gave us figures for SCH places needed.
5. The Invitation to Tender (ITT) was issued to 14 Secure Children's Homes on 15 August 2008 with a deadline for responses of 31 October 2008. The ITT gave details of the requirement and also gave some background information and instructions to bidders, together with details of the evaluation criteria. The guide figures for required SCH places in the ITT reflect Figure 6 in the Commissioning Plan, which shows SCH demand for a two year period ending December 2007. These are also the figures in Table 1 of my Second Witness Statement.
6. The statement in paragraph 49 of my First Witness Statement that the guide figure of 209 was "based on historical average demand across SCHs and took account of the number of contracted beds (301) available in STCs using data collected for a two year period ending in December 2007" was intended to reflect the fact that because SCHs and STCs are broadly interchangeable and the supply of STCs is fixed, availability in this sector impacted upon the number of historical placements in SCHs over the two year period.
7. I drafted the ITT and cannot now recall why I used the Figure 6 figures in the ITT as a guide. I ought to have included the relevant figures from Figure 8 since that was the basis upon which the YJB had decided to commission SCH provision.
8. Following receipt of responses, an evaluation of bids then took place between November 2008 and February 2009 with the process culminating in contract awards being announced on 26 March 2009. The awards were based on YJB intending to contract for 191 beds, a figure calculated using the methodology reflected in Figure 8 of the Commissioning Plan, updated for a three year period ending December 2008. The methodology used is that in Table 2 of my Second Witness Statement and described in paragraphs 58 and 61 of my First Witness Statement. It was important that the figures were updated, particularly as demand had continued to fall in both the SCH and STC sectors, so that the revised figure for SCH contract awards could be determined for the evaluation. Similarly, an average occupancy rate of 94% rather that 93% was used to calculate "headroom" as this was the average rate of occupancy in the YJB estate for the 2006/7 and 2007/8 years. The core number of YJB contracted beds in STCs was 301 rather than 307 in Figure 8 of the Commissioning Plan as the Plan had assumed that 6 beds were to be added on a short-term basis. "
The purpose of this paper is to:
- inform Board members of the approach that was used to evaluate tenders received from secure children's homes as part of the current Recommissioning project;
- inform Board members of the approach that was used to appraise the different options for contract award;
- inform Board members of the further work that will be undertaken before contracts are awarded at the end of March 2009;
- seek approval for the contract award options within this paper.
2. Decisions required
The Board is recommended to:
2.1 Approve the options for the award of new contracts for secure children's homes,
3.1 The YJB currently contract with 14 secure children's homes in England and Wales for a total of 219 places; the recommissioning project will place new contracts with effect from 1 July 2009.
3.2 The commissioning plan, approved by the project board in July 2008, established the following key objectives:
- to commission sufficient secure accommodation of appropriate quality to fully meet the needs of 12-14-year-old boys, girls up to 17 and more vulnerable 15 to 17 year old boys;
- to better match secure children's homes demand and supply on a regional basis;
- to manage cost and value for money to the YJB through appropriate risk transfer to the provider and an appropriate mixed economy of provision;
- to manage quality and drive up performance in the secure children's homes market; and
- to improve the built environment through investment in refurbishment works and capital expansion subject to affordability and the objectives of both the YJB and the Department for Children, Schools and Families (DSCF).
3.3 The plan was based on the following assumptions:
- that secure children's homes and secure training centres are broadly interchangeable in terms of placement decisions, but that some differentiation should and does exist (i.e. those younger people with higher risk factors are more likely to be placed in secure children's homes);
- that the YJB sees a distinct role for secure children's homes based on their smaller size, higher staff ratios, highly qualified staff and their strong ties with local communities and local authority children's services; and
- that the YJB will commission as many places in secure children's homes as required, within affordability constraints.
3.4 We have undertaken a comprehensive analysis of three years of population data (2006, 2007 and 2008) alongside analysis of the home locations of those young people placed in secure children's homes and STCs during this period. Based on these three years of data (and taking into consideration STC provision) the required number of secure children's home beds in England and Wales is approximately 191, and the regional breakdown of that figure is detailed in the table below.
STC & SCH
|North (NE, NW, Y&H)||178||58||120|
|Midlands (WMIAL and EM)||90||87||3|
|South East (Lon, SE and E)||184||156||28|
3.5 Board members should note that as a result of the decreasing population we will decommission the six beds that came on stream at Hassockfield in 2008, with STC provision in the North therefore reverting to 58.
Option 1 renew all existing contracts at secure children's homes
3.12 If we receive funding in line with current levels we would have the option of maintaining the current contractual position with the 13 English secure children's homes (i.e. 204 beds) and also undertaking an expansion at Hillside of up to five beds (with capital funds for this expansion being provided by the Welsh Assembly Government). Although this would avoid the closure of any homes and is thus the safest option, our population analysis at 3.4 above clearly shows that we no longer require this number of beds. Maintaining the current contracts would therefore be difficult to justify in terms of value for money.
Option 2 preferred solution (191 beds)
3.13 The data analysis at 3.4 above established a requirement of approximately 191 secure children's home beds. Working through the ranked list of homes following the evaluation exercise, the beds offered by each home were netted off the total number of beds required in each regional corridor, with any excess of supply being assigned to adjacent corridors. This provides us with the solution below:
|Overall SCH req||191|
|English SCH req||174|
|Total English beds||174|
|Total SCH beds||191|
The solution above allows the YJB to purchase the required total of secure children's homes beds: 174 in England and an expansion at Hillside to 17 beds. Therefore it fully meets the requirements of our commissioning plan. The regional breakdown of the beds purchased in each regional corridor is detailed in the table below.
|North (NE, NW, Y&H)||117|
|Midlands (WM & EM)||24|
|South East (Lon, SE and E)||12|
This can be compared to the table at 3.4 above which gave an approximate number of required beds in each regional corridor. It can be seen that our preferred solution provides and excellent fit in terms of the North, the South West and Wales. Although we are not able to fully meet the required number of beds in the South East this is compensated for by increasing the number of commissioned places in the Midlands.
Our preferred option would mean that the following homes would not be awarded a YJB contract:
|Kyloe House||Northumberland||3 beds||9 beds|
|Sutton Place||Hull||8 beds||2 beds|
|Orchard Lodge||London||16 beds||8 beds|
|Atkinson||Exeter||10 beds||6 beds|
the YJB could still be faced with criticism for reducing the number of contracted secure children's home beds, despite our data analysis which shows that we should commission fewer.
3.16 Orchard Lodge is the only remaining secure children's home in London. However, their bid was poor and there have been ongoing performance issues since Glen Care took over its running. The South East corridor includes Medway, Oakhill and Swanwick Lodge and we are therefore confident that the needs of children and young people from London will still be well met. "
"I am writing to formally advise you that Orchard Lodge's bid to the YJB for a new contract from 1 July 2009 has been unsuccessful. It is with regret that I provide you with this notification.
As you will be aware the evaluation of the tenders received from secure children's homes was conducted on the basis that the quality of the bids (as evaluated by the evaluation panel) was worth 65% of the final rating and finance 35%. All homes were marked against six categories of indicators, Quality Management, Admission, Management of young people, Assessment, Case Management and Service Delivery. The homes were then ranked in order and decisions made on contract award based on the criteria in the evaluation plan. As a result of this process we will be contracting for a total of 191 beds in England and Wales from 1 July 2009. Using the ranking for each home out of the 29 options received, the overall placing for your home was eleventh out of fourteen homes. The overall score for your home was 65.9%, while the top score across all the homes was 82.5%.
We recognise that this will have an operational impact and wish to work with homes who are not receiving contracts to discuss and agree transitional arrangements in 2009/10 which help to deliver adequate and sustainable provision of welfare beds across the country. As a short term measure there will be funds available for the purchase of beds from those units who have not been awarded a YJB contract for the financial year 2009/10, to support a transition to welfare-only provision. "
"Thank you for your letter dated 7th April in which you commented on the tendering process the Youth Justice Board (YJB) and the Department for Children, Schools and Families (DCSF) recently undertook in relation to the provision of secure children's home places for young people.
I realise that the result of the competition is disappointing for Glencare Group, but I would like to assure you that the YJB and DCSF have conducted the procurement in an open, fair and non-discriminatory manner.
As part of the exercise YJB analysed data on demand within the secure estate for a 3 year period ending in December 2008 and this included Secure Training Centres which are considered as being broadly interchangeable with SCHs in terms of placement decisions. With Swanwick Lodge Secure Children's Home in Southampton and the Secure Training Centres at Medway and Oakhill now operating at full capacity, we believe there will be sufficient and appropriate secure accommodation available to meet demand in the south east region.
In your letter you also asked about the award procedure used. The services procured are classified as Part B services and are therefore not subject to the full rigours of the Public Contracts Regulations 2006. As such there is no requirement to use any of the award procedures laid down in the Regulations.
The decision made to award contracts following the tendering process stands and the award process will continue. "
The Grounds of Challenge
"1. Legitimate Expectation
Mr Beloff submits: (i) the rule that a public authority should not defeat a person's legitimate expectation is an aspect of the rule that it must act fairly and reasonably; (ii) the rule operates in the field of substantive as well as procedural rights; (iii) the categories of unfairness are not closed;(iv) the making of an unambiguous and unqualified representation is a sufficient, but not necessary trigger of the duty to act fairly; (v) it is not necessary for a person to have changed his position as a result of such representations for an obligation to fulfil a legitimate expectation to subsist; the principle of good administration prima facie requires adherence by public authorities to their promises. He cites authority in support of all these submissions and for my part I am prepared to accept them as correct, so far as they go. I would however add a few words by way of comment on his fifth proposition, as in my judgment it would be wrong to understate the significance of reliance in this area of the law. It is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation."
(1) That the YJB was looking to purchase, through the tendering process, a total of 52 SCH places in the South East (see figure 1 of the ITT).
(2) That the YJB had arrived at the figure of 52 SCH places by considering data over a period of 24 months on a regional basis and that the figure reflected average actual placements at any one time in SCHs in the South East over that 24 month period.
(3) That the figure was indicative but would nevertheless form the basis for the number of SCH places that the YJB would look to purchase through this tendering exercise.
(4) That, accordingly, the YJB would use the calculation based on previous actual use of SCHs as the basis for the number of SCH places that it would purchase through this tendering exercise.
(1) Both Hillside SCH and Orchard Lodge SCH were the last SCHs in their areas with a recognised need for SCH services for the local population;
(2) The likely demand for SCH services in London is greater than the likely demand for SCH services in Wales: thus
- The population of Greater London is almost 2½ times the population of Wales.
- There are over double the amount of 10-14 year old boys in Greater London than there are in Wales.
- There are over double the number of boys between 15-19 years in Greater London than there are in Wales.
(3) Wales and London are both governed by their respective regional Assemblies.
(4) London was given particular recognition over and above other cities or areas. London is specifically named on the YJB's map in the tender documentation and the region was entitled "South East and London."
(1) The ITT, in which the need to "better match demand and supply on a regional basis" (emphasis added) is identified as a "key objective" and which goes on to indicate that one of the three principle evaluation criteria is "geography" (both matters quoted in paragraph 47 above).
(2) The YJB's general policy aim of placing children in SCHs within 50 miles of their home: see, for example, the "Protocol for the Refusal of Placements within Local Authority Secure Children's Homes in relation to Referrals made by the YJB" dated 30 June 2003, a letter from the YJB's Chief Executive, John Drew, dated 13 May 2009, the YJB's Corporate Plan 2002/03 to 2004/05, its Business Plan 2002/03 and Issue 21 of the YJB News, February 2004, which stated (inter alia):
"This follows an assessment of how the Board can obtain the best standards for young people in secure accommodation while working towards its target of 90 per cent of young people being placed within 50 miles of their home Sir Charles Pollard, acting chairman of the Youth Justice Board, said: "The reduction in the number of young people being sent to custody has allowed the Board to focus even more on ensuring that young people are placed in safe, secure establishments as close as possible to their homes."
(i) the importance of children being placed in SCHs within 50 miles of their home as a consistent application of YJB policy;
(ii) the importance of children being placed close to home so that they can be visited by their families both to assist in the resettlement process and to reduce the risk of suicide and/or self-harm; and
(iii) the importance of children being placed in SCHs close to home so that the SCH can work effectively with the child's family or carers, YOT, school and local community, in order to promote resettlement on release and rehabilitation.
(i) it promotes the well-being of the child children detained a long way from home are more likely to sustain self-harm, including suicide;
(ii) it facilitates visits by close family and other relatives and their participation in the child's assessment and rehabilitation; and
(iii) it enables links with the relevant YOT to promote successful re-integration into society after release.
(1) Swanwick Lodge, Southampton: South East, 80 miles from London;
(2) Vinney Green, Emersons Green: South West, 117 miles from London;
(3) Hillside, Neath: North Wales, 186 miles from London;
(4) Clayfields House, Stapleford: East Midlands, 110 miles from London;
(5) Barton Moss, Manchester: North West, 201 miles from London;
(6) Red Bank, Merseyside: North West, 213 miles from London;
(7) Aycliffe, Newton Aycliffe: North West, 255 miles from London;
(8) East Moor, Leeds: North East, 195 miles from London;
(9) Aldine House, Sheffield: East Midlands, 167 miles from London; and
(10) Lincolnshire Unit, Sleaford: East Midlands, 118 miles from London.
"The positive obligations to protect life
18 Article 2 declares that "Everyone's right to life shall be protected by law". In the 1980s, principally in a line of cases arising out of the violence in Northern Ireland, the commission recognised that article 2 could give rise to positive obligations on the part of the state to protect life. But this did not mean that a positive obligation to exclude all possible violence could be deduced from the article.
19 Fundamentally, article 2 requires a state to have in place a structure of laws which will help to protect life. In Osman v United Kingdom 29 EHRR 245, 305, para 115, the European court identified the "primary duty" of a state under the article as being:
"to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provision."
But, as the parties in Osman's case recognised, the state's duty goes further, and article 2: "may also imply in certain well defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual."
(1) There will be a number of vulnerable children, who need to be detained in either an SCH or an STC, who are or will now be detained in a YOI, in conditions of detention that may cross the threshold of Article 3 and/or 8 and/or that create the risk of such detention and where the risk of self-harm will be materially increased so as to engage Article 2;
(2) There will now be a number of vulnerable children who will be detained in the unsuitable conditions of an STC rather than an SCH, where those conditions of detention will cross the threshold of Article 3 and/or 8 and where their risk of self-harm will be materially increased, thus engaging Article 2; and
(3) In any event, it is now far more likely that vulnerable children will be detained further from their homes and families and professionals working with them, with consequences for their welfare and development that engage Article 8.
(1) The YJB's calculation of the demand for SCH placements was over simplistic, insufficiently researched, was not based upon up to date information as to the true level of need for SCH/STC placements and failed to consider properly or at all the evidence (e.g. as demonstrated by the Moran Note) that there was a demand for such placements that was not being met, except by placement in YOIs (this became known as "the unmet demand point"): in particular, the YJB failed to take account of the increase in the number of young people under 17 who are being detained in YOIs and the resulting likelihood that a significant number of vulnerable children/young people are now being detained in YOIs instead of SCHs/STCs;
(2) The YJB failed to give due weight to geographical proximity and the need for vulnerable children and young people to maintain contact with their families and professionals;
(3) The YJB wrongly treated SCHs and STCs as "equivalent" for the purposes of the tendering exercise when, in fact, SCHs are intended for younger and more vulnerable children and young people and are therefore more appropriate for this group than STCs.
(4) There is no evidence that the YJB gave any consideration to the effect that the closure of "justice beds" would have in terms of undermining the viability of the affected SCHs in continuing to provide "welfare beds".
(5) The YJB failed to carry out individual assessments on those children and young people who were already detained in the SCHs whose beds they decided to close in circumstances where they could have no reasonable expectation that they would be provided with suitable beds elsewhere.
"In summary, it was evident to the YJB in 2005 that there was a significant degree of unmet need [see the Moran Note]. As a result of that information the YJB undertook to maintain the current provision of SCH beds [see the Secure Estate Strategy] and to implement any reductions in the secure estate in the YOI estate, not the SCH/STC estate [see the Secure Estate Strategy]. The YJB since that time has not collated the necessary information to enable them to be satisfied that there is no longer that unmet need, because they do not collate it. They were therefore under a duty to make appropriate investigations (whether by way of consultation, EIA or their own researches) to establish whether this unmet need still existed. Their failure to do so demonstrates that they have not struck a fair balance between competing interests. "
(1) Miss White pointed out that in the case of C it was accepted that, having regard to the Race Equality Schemes of the Home Office and the Department for Constitutional Affairs, the effect of section 7(1) of the Race Relations Act 1976 was to require a race equality impact assessment where it was proposed to change policy on a matter that might raise issues about racial equality (see paragraphs 38 and 39). Miss White submitted that, in the present case, the decision not to award a contract to Orchard Lodge and/or the Atkinson Unit did not involve any such change in policy. For the reasons that are apparent from the earlier parts of this judgment, I agree with that submission. I also agree that it is clear that the YJB did not regard this aspect of the matter as the sole reason for not carrying out an EIA. I am therefore satisfied that the YJB did not misdirect itself as suggested by Mr Bowen.
(2) Miss White submitted that, in the circumstances of this case where: (a) the commissioning decision was based principally on quality of provision of services and where the YJB had included within the tender specification provisions designed to ensure that the SCH promotes equality when delivering that service (see paragraph 46 of Mr Gunaratnam's first witness statement) and (b) the YJB expressly had regard to the particular need to provide sufficient male and female beds across the SCH sector (see paragraph 9.1 of the February 2009 Board Decision Paper), the YJB's duty to have "due regard" to its general equality duties was discharged.
"Accordingly the YJB will undertake to work collaboratively with those stakeholders to ensure the effective operation of the placement system. Where issues or deficiencies are identified it will seek to work with the stakeholder(s) concerned to resolve the issue."
"It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."
(1) The statement in paragraph 5 of YJB's Placement Policy upon which Mr Bowen QC relied (see paragraph 131 above) is no more than a statement of intention as to the operation of the placement system. It cannot and does not give rise to any legal duty as to the appropriate process for taking commissioning decisions.
(2) The Secure Estate Strategy was a policy document that set out assumptions and principles (i.e. a general strategy) upon which the YJB intended to develop the secure estate from 2005 to 2008. The language of the statements upon which Mr Bowen QC relied in particular did not represent a policy commitment by YJB that it would continue to fund placements in SCHs regardless of demand for such places. There was thus no policy shift as alleged. The decision not to award the contracts in question was not a strategic decision, it was a discrete operational decision of a fundamentally different nature and I accept the evidence of Mr Paul Bowers, the YJB's Director of Secure Accommodation, to that effect for the reasons that he gives (see paragraphs 6 to 12 of his witness statement dated 10th July 2009).
(3) In any event, far from departing from the general strategy contained in the Secure Estate Strategy, the YJB followed it: it offered contract extensions to all SCHs which had been on short term contracts following the 2003 tendering exercise (see paragraph 10 of Mr Bowers' witness statement), which was precisely what it promised it would do. Thereafter, the YJB approached its commissioning on the basis that placements should meet need, consistent with its established approach as stated in the Secure Estate Strategy (see paragraphs 41 to 43 above).
(4) Accordingly, there was no promise or practice on the part of YJB that gave rise to any obligation on its part to carry out any consultation nor did procedural fairness require any such consultation.
" the legal basis must be accessible and foreseeable. A rule's effects are foreseeable if it is formulated with sufficient precision to enable any individual if needs be with appropriate advice to regulate his conduct the law must indicate the scope of any such discretion with sufficient clarity to give the individual adequate protection against arbitrary interference."
" vulnerability is a relative expression and covers a wide range of factors and needs. Moreover vulnerability can and does change on a daily basis depending on a number of factors that can influence and impact on the lives of young people both inside and outside of custody. For example a young person may receive a distressing phone call from a family member that could change their vulnerability status. Key to the YJB's placement decisions is the identification of a number of risk factors that may impact on the needs of young people. The YJB uses individual or a combination of those to identify the overall profile of a young person to determine the appropriate placement."