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||Neutral Citation Number:  EWHC 220 (Admin)
||Case No: CO/3703/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||9 February 2018
B e f o r e :
HIS HONOUR JUDGE GRAHAM WOOD QC,
Sitting as a Judge of the High Court
(a protected party who proceeds by her father and next friend JP)
||- and -
||NORTH EAST LINCOLNSHIRE COUNCIL
David Lawson (instructed by John Ford solicitors) appeared on behalf of the Claimant
David Lock QC (instructed by Jacqueline Thomas) instructed by North East Lincolnshire Council on behalf of the Defendant
Hearing dates: 5th October and 7th December 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
His Honour Judge Graham Wood QC :
- This court has been concerned with the substantive hearing of an application for judicial review relating to the discharge by the Defendant, North East Lincolnshire Council, of its statutory responsibilities under the Care Act 2014 and the Children and Families Act 2014 towards the Claimant, who is a 22-year-old woman with complex and multiple disabilities which require round-the-clock care. (I shall refer to the Defendant within this judgment as the local authority. The Claimant is anonymized for obvious reasons).
- At the time the proceedings were commenced, there was an outstanding application before the First Tier Tribunal, Health, Education and Social Care Chamber (FTT) which also sought to challenge the local authority provision and its approach to the need for an Education and Health Care plan (EHC). The tribunal involvement has been an ongoing process, until very recently, and thus there has been a degree of fluidity relating to care and education provision which has meant that the judicial review has been in a state of regular flux, with the respective positions of the parties being adapted to respond to the current prevailing circumstances.
- The parties proceeded to argue their cases before me, duly modified to reflect the present nature of the challenge, on 5th October 2017. Regrettably there was insufficient time to complete the argument on that date. A further hearing was required, which took place on 7th December 2017, after which I reserved my judgment. Between the 5th October and 7th December there were further developments in relation to the tribunal proceedings with the final resolution occurring very shortly before the resumed JR hearing. I shall refer to these below. Further, as one might expect when there is continuing and ostensibly cooperative dialogue between local authority social services and the family of a young person with severe disabilities, the package of care including the personal budget setting out the financial payments which would be made by the local authority were agreed prior to the resumed hearing and on the face of it, there appeared to be no ongoing issue between the parties.
- However, the Claimant has maintained a challenge to past care provision and the level of direct payments, and seeks a variety of remedies, including the quashing of previous assessments and care plans, their mandatory redetermination, and declarations of unlawfulness. It is acknowledged that the relief sought is intended to underpin potential compensatory claims in relation to asserted past failures.
Procedural history and chronology
- It is necessary to set out in brief outline how the current position has been arrived at, to understand the issues as they have now been crystallised.
- When proceedings for judicial review were commenced as long ago as July 2016, there were three separate areas of challenge pursued by the Claimant. They related to an adult social care assessment and care and support plan from April 2016, which provided for direct payments of £387.50 per week. The challenge can be summarised as (1) the failure to calculate a personal budget which was transparent, as required under section 25 (1) (e) of the Care Act 2014, in circumstances where a direct payment was proposed but no personal budget indicated, (2) insufficiency of the amount identified to meet the Claimant's needs, and the requirements of a lawful direct payment, and (3) unlawfully taking into account family support outside day-care provision.
- In the meantime, and by way of an ancillary process to the judicial review application, the Claimant's solicitors challenged the local authority's failure to provide an EHC in relation to her placement at an establishment known as Fix n'Kiks which was part of Disability Active, a charity controlled by the Claimant's father and mother. Until recently this placement had been hotly disputed, but without the EHC in relation to the education component and the identification of Fix n'Kiks, the cost of that placement could not be recovered. As I have indicated, this challenge was proceeding before the FTT.
- In its initial response to the application, the local authority did not accept that any aspect of the care and support plan was unlawful, although it referred the court to the fact that the EHC plan was due to be considered by the FTT in September 2016, after which the Claimant's care may well be the subject of significant review. A stay was sought, and although it was opposed by the Claimant, James Goudie QC sitting as a deputy High Court judge in August 2016 granted it to allow the FTT resolution and any subsequent ADR.
- The FTT determination was provided in October 2016. It identified the progress which the Claimant was making at Fix n'Kiks, and directed the provision of an EHC plan.
- An initial EHC plan was then provided by the local authority, although the suitability of Fix n'Kiks was not accepted in the plan. There was to be further FTT involvement to determine whether Fix n'Kiks was a suitable placement.
- The local authority undertook further assessments in December 2016 and May 2017, and provided support plans in relation to both assessments. In relation to the JR proceedings, which were no longer stayed, and which were not resolved by ADR, following the grant of permission by Rhodri Price QC sitting as a High Court judge on 27th March 2017, the local authority subsequently put in a detailed response. This condescended to the December support plan, effectively arguing that any failures identified in the original grounds had now been addressed with the setting of a budget, an increase in the direct payments, (now set at £519.70 per week) and the involvement of the family in providing the updated assessment which took into account the extent of care provided by the parents and by the local authority respectively. It was suggested that the judicial review was otiose and the Claimant was invited to reconsider.
- The Claimant did not agree. In a reply dated 23rd May 2017, the challenge was maintained on the grounds of a continuing lack of clarity in relation to the budget, continuing inadequacy of provision to meet the Claimant's needs, and a continuing failure to properly identify the extent to which her parents were able to contribute to the care package. However, it was acknowledged that although judicial review claims inevitably develop whilst welfare questions are being resolved, in the light of a pending further tribunal hearing at the end of June, amended grounds would await the result of that hearing.
- The FTT hearing took place in July 2017. The Claimant succeeded in establishing that her placement, under the EHC plan, should be at Fix n'Kiks, along with a quantified education programme.
- On 6th September 2017, the Claimant was given permission to file amended grounds of review by Supperstone J. This was a far more expansive document and now relied upon five separate grounds of challenge. It was drafted by Mr David Lawson, counsel who has appeared for the Claimant on this hearing. Whilst arguments were retained in relation to the unlawfulness of earlier care plans and assessments, the current (that is 2017) assessment was the main focus of challenge.
- The first ground contended that the 2017 care plan continued to provide an unlawful personal budget because it was not transparent, containing a matrix allocating payments to different bands and need, and which did not afford an understanding as to how the additional direct payment of £105 had been arrived at. The second ground contended that the personal budget and direct payment even on the revised assessment did not adequately cover the Claimant's needs, with insufficient allowance made for the amount of extra support which she required at home, and which mother could not provide. However, central to the challenge was the continuing failure to provide for payment in relation to the cost of CP's placement at Fix n'Kiks, and the cost of travel to the placement.
- The third ground again challenged the approach to family support, in other words repeating the criticism of the 2016 assessment that too much reliance had been placed upon the Claimant's mother. This was in breach of the eligibility regulations, and made the assessment unlawful, although the real thrust of the challenge related to an unreasonable expectation of familial support for care.
- Grounds four and five were additional grounds. In ground four there was a criticism of the way in which the local authority has integrated its services in respect of educational and care provision, as exemplified by the fact that it had been necessary to pursue a two-pronged challenge to both the FTT and the Administrative Court contrary to the guidance which had been provided under the Care Act 2014. It was asserted that there was still no provision for CP's attendance at Fix n'Kiks, or transport to the placement.
- The final challenge (ground five) was entitled "recompense of expenditure" and was a monetary claim alleging a breach of Article 2 Protocol 1 (abbreviated to A2P1) of the European Convention in respect of a right to education. It was based upon the successive decisions of the FTT to affirm the EHC plan, and subsequently to approve the placement at Fix n'Kiks. Alternatively, a claim in restitution was sought.
- Had there been no further developments, it might have been expected that the amended grounds would have formed the basis of the challenge at the hearing on 5th October 2017. However, the ground shifted once again, because on 12th September 2017 a further care plan was provided by the local authority. (The revised 2017 care plan). This allowed for significantly increased direct payments in the total sum of £720.67. It was arrived at following assessment, and a collaborative approach with CP's parents. The direct payments were agreed as amounting to a reasonable sum, reducing the degree to which reliance was placed upon parental support. It was indicated that there would be no further challenge going forward to the adequacy of direct payments.
- In the lead-up to the judicial review hearing scheduled for 5th October 2017, it was apparent that attempts were made to draw up a consent order, thus obviating the need for any hearing. This court has not been made privy to any drafts, although at one stage it was being suggested that I may become involved in providing a ruling on what had been agreed. Happily, that was avoided, although for the October hearing a degree of unravelling was required, and the fact that the parties were still at loggerheads somewhat difficult to explain.
- On behalf of the Defendant local authority, Mr David Lock QC and Miss Jacqueline Thomas provided a fulsome document entitled "detailed grounds of defence/ skeleton argument". It was helpful in bringing the court up to date, and summarising the respective positions.
- In some respects, answering the amended grounds which had not reflected on the revised 2017 plan was potentially futile, insofar as it was not then clear what any residual argument might be. However, the Defendant's response can be summarised as follows:
(i) in relation to the first ground of challenge, and the non-inclusion of / lack of transparency in the personal budgets in 2016 and 2017, it had not been possible to fix a personal budget until the question of the EHC had been determined by the tribunal because of the overlap of social care under two statutory regimes;
(ii) on the challenge to the adequacy of the services provided, it is only those which do not come under the umbrella of special educational provision for which the council was the decision maker, and for which there had been full agreement with the parents, whilst the balance came within the remit of the FTT, thus leaving no decision for challenge in this court;
(iii) an argument of unlawful reliance on family support falls away with the agreement of the parents to the recent plan;
(iv) the challenge to the integration of social care and education services is based upon a duty which is a weak one, and there is no evidence of any breach, nor is any remedy sought within the judicial review proceedings;
(v) the claim for financial redress is the substantive remaining argument which is the focus of the Claimant's claim, and on analysis it does not bear scrutiny in the light of the authorities.
- Thus the local authority was prepared to challenge, notwithstanding virtual agreement in relation to care provision for CP, any residual argument which might have been pursued. It is to be noted, however, that at this time the Defendant, whilst accepting the principle of "education" at the identified placement of Fix n'Kiks, was not accepting a financial basis for payment to CP's father, who was to all intents and purposes, as they believed, the ultimate beneficiary, and attempts were being made to draw up a contract to identify the source and destination of payments. There also remained some issues in respect of the cost of transportation to and from Fix n'Kiks, and the FTT was retaining its jurisdiction to deal with some aspects of the final education plan, including the provision of toileting.
- Because the Claimant had received the Defendant's detailed grounds of defence /skeleton argument so shortly before the hearing, and in anticipation that the matter had been resolved (only to be told that the terms of a consent order were not agreed), Mr Lawson expressed a view in his skeleton argument for the hearing on 5th October that he had been disadvantaged in preparing for that hearing, particularly when it was not clear how much remained in dispute. He appeared to be under the impression that the local authority was withdrawing the September 2017 care plan by the approach which had been adopted. There may have been a misunderstanding, in view of the paucity of time available to Mr Lawson, as to the argument which was being advanced by the Defendant and the approach which it adopted in distinguishing between education and social care provision. Nevertheless, he reiterated the five grounds of challenge which were being pursued, updating his challenge to take into account the September 2017 assessment and plan (which he still contended was potentially unlawful in relation to the personal budget). He accepted that grounds two and three, subject to clarification of the Defendant's position, probably fell away as a result of the most recent agreement, but maintained ground four (failure to integrate) and ground five (recompense).
- At the hearing in October, Mr Lawson, being aware that the question of a personal contract between the local authority and the Claimant's father was looming large and not considered to be acceptable, was invited by the court to consider whether it was premature to advance any further argument in relation to the legal challenge whilst the FTT decision had not been finalised. Both he and Mr Lock QC felt that some issues could be addressed, and they proceeded to develop their arguments on lawfulness of decisions and process. As I have indicated, there was insufficient time available to the court. Mr Lawson presented his submissions, and Mr Lock QC began briefly in reply before the matter was adjourned.
- There was a further development before the resumed hearing in December. The principle of payment for the educational provision at Fix n'Kiks was now accepted, although the amount being sought, and the method by which it would be paid remained in dispute. Neither counsel suggested that these were matters which concerned the court. Further, the cost of transportation to and from the placement had been the subject of agreement. In these circumstances, this court in the final analysis has been concerned with historical matters only, and although the Claimant still sought declaratory and mandatory relief, the outcome of the judicial review was not going to affect the ongoing provision of direct payments for CP, and the way in which the social care and educational programme was being managed because of the agreement which had been reached. This removed the urgency and the need for an immediate decision, to the relief of the court because of the complexity of several of the issues.
The evidence before the court
- Whilst evidential disagreements remain, this court has not been called upon to make any determination where there are factual disputes, nor would it be appropriate to do so. A brief summary of the respective positions from the evidence, however, would be helpful, not least because it affords an explanation as to how what should have been a collaborative relationship between parents and local authority has at times floundered.
- The Claimant's father, Mr JP, in his first statement dated 10th July 2016, provided a description of the mental and physical difficulties of his daughter and the extent to which she was wholly dependent on others for round-the-clock care. He stated that CP was not entitled to healthcare provision from the NHS, and was highly critical of the assessments which had been made by the local authority's social services of the unmet needs of CP, and the care which it was deemed she required. He also explained that notwithstanding a previous statement of special educational needs in her younger years, she had been refused the current equivalent of the EHC at the placement which she now attended, Disability Active and Fix n'Kiks. He accepted that CP had social care provision whilst at Fix n'Kiks during the day but asserted that unreasonable demands were made on his wife for care outside the daytime hours. The support plan, he said was inadequate on the direct payment of £337.50 per week.
- In his second statement dated 14th November 2016, Mr JP explained his own deteriorating health, having suffered recent strokes, and responded to the Acknowledgement of Service now filed by the Defendant to the judicial review, by asserting that the cost to him and his wife of additional support over and above the direct payment was in excess of £43,000. In a statement from December 2016, his wife, Mrs AP, confirmed the position. Specifically, whilst accepting that she had co-operated with the assessments, she denied that she had agreed the level of direct payment.
- In his third statement, provided shortly before the October hearing, Mr JP went into detail addressing CP's daily routines, her attendance at the centre, and the recent history in relation to the pursuit of the EHC plan and the manner in which assessments had been carried out. He acknowledged that the most recent assessment and the direct payment now set at the weekly rate of £720.67 was acceptable, although no provision had been made for the cost of attendance at Fix n'Kiks (£25,000 per annum) or transportation. He provided a breakdown of the costs which had been incurred over a three-year period to meet the needs of CP over and above the provision which was made by the local authority. This, it is assumed, is to form the basis of any monetary claim which it might be possible to pursue.
- Mrs AP also provided a further statement before the hearing, in which she challenged the account provided by the Defendant's witnesses as to the division of parental care and externally provided social care, and the extent to which she had required help in recent times. Mr JP made similar observations in a fourth statement of the same date, challenging the recently disclosed evidence of the Defendants.
- On behalf of the Defendant local authority, the principal evidence is provided by a statement from Deborah Harding, who is a social worker employed by Focus, the private company which deals with adult social care on behalf of the Defendant. She addressed the question of education provision and in particular the local authority's unwillingness to accept that Fix n'Kiks was an appropriate placement. She accepted that they were bound by the decision of the tribunal, but explained her understanding of the facilities (or lack thereof) at the preferred placement. Acknowledging that this was now resolved, because of the decision in relation to the EHC plan on the identification of Fix n'Kiks by the FTT, Deborah Harding explained the difficulties in relation to payments for the placement being included in the personal budget because CP's father, who was the appropriate person for receipt of payment, was also the beneficiary of any fees. This witness had undertaken a reassessment of CP's needs in August 2017, and in her statement, she explained the collaborative approach which she endeavours to achieve with parents, ensuring a balance between imposing an external care package on the parents in the home where the disabled adult is being looked after, and identifying the appropriate care which can actually be provided by them who have no legal duty otherwise to act as carers. She provided a breakdown of the weekly support costs and the method by which the calculation had been made, making appropriate allowance for respite care, night-time support, and weekend care, together with add-on costs to cover staff holidays, sick pay, tax and NI. The total sum was £720.67.
- Deborah Harding confirmed that she had based her assessment on the amount of care which the Claimant's mother had agreed she would provide personally. She also confirmed (and this is central to the Defendant's argument) that the care which was provided at Fix n'Kiks was classified as special educational provision, whereas the care for CP at her parents' home was social care support and unrelated to special education provision.
- A further statement on behalf of the Defendant was provided by Christine Jackson, who was the head of case management, performance and finance at Focus. This addressed the Claimant's case relating to a lack of integration of adult social care and educational services and explained how the transition from children's services to adult services for those with eligible social needs was managed, in accordance with protocols. Her evidence was of general application only, and does not deal with the specifics of the Claimant's case, but made it clear that planning at all stages was undertaken to ensure an integrated service.
The legal framework
- The local authority is the statutory provider under the Care Act 2014 [CA 2014] of social care services for adults whose need meet the eligibility criteria set out in the ancillary regulations. The primary duty under that act is to promote the individual's well-being in a number of defined areas. (Section 1 (1)) Section 9 sets out the duty to carry out a needs assessment:
"9 Assessment of an adult's needs for care and support
This section has no associated Explanatory Notes
(1) Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
(a) whether the adult does have needs for care and support, and
(b) if the adult does, what those needs are.
(2) An assessment under subsection (1) is referred to in this Part as a "needs assessment.
(3) The duty to carry out a needs assessment applies regardless of the authority's view of—
(a) the level of the adult's needs for care and support, or
(b) the level of the adult's financial resources.
(4) A needs assessment must include an assessment of—
(a) the impact of the adult's needs for care and support on the matters specified in section 1(2),
(b) the outcomes that the adult wishes to achieve in day-to-day life, and
(c) whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.
(5) A local authority, in carrying out a needs assessment, must involve—
(a) the adult,
(b) any carer that the adult has, and
(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult's welfare."
- Once the needs are identified, the eligibility criteria are considered. Section 13 is relevant to the approach on making the determination as to whether they meet the eligibility criteria.
"13 The eligibility criteria
This section has no associated Explanatory Notes
(1) Where a local authority is satisfied on the basis of a needs or carer's assessment that an adult has needs for care and support or that a carer has needs for support, it must determine whether any of the needs meet the eligibility criteria (see subsection (7)).
(2) Having made a determination under subsection (1), the local authority must give the adult concerned a written record of the determination and the reasons for it.
(3) Where at least some of an adult's needs for care and support meet the eligibility criteria, the local authority must—
(a) consider what could be done to meet those needs that do,
(b) ascertain whether the adult wants to have those needs met by the local authority in accordance with this Part, and
(c) establish whether the adult is ordinarily resident in the local authority's area.
(4) Where at least some of a carer's needs for support meet the eligibility criteria, the local authority must—
(a) consider what could be done to meet those needs that do, and
(b) establish whether the adult needing care is ordinarily resident in the local authority's area."
- If the needs satisfy the eligibility criteria, section 18 confirms the duty to ensure that those needs are met:
"18 Duty to meet needs for care and support
(1) A local authority, having made a determination under section 13(1), must meet the adult's needs for care and support which meet the eligibility criteria if—
(a) the adult is ordinarily resident in the authority's area or is present in its area but of no settled residence,
(b) the adult's accrued costs do not exceed the cap on care costs, and
(c) there is no charge under section 14 for meeting the needs or, in so far as there is, condition 1, 2 or 3 is met."
- Section 24 describes the next steps to be made after an assessment of need, essentially the preparation of a care and support plan.
"24 The Steps for the local authority to take"
(1) Where a local authority is required to meet needs under section 18 or 20(1), or decides to do so under section 19(1) or (2) or 20(6), it must—
(a) prepare a care and support plan or a support plan for the adult concerned,
(b) tell the adult which (if any) of the needs that it is going to meet may be met by direct payments, and
(c) help the adult with deciding how to have the needs met."
- The requirements of the care and support plan are dealt with in section 25:
"25 Care and support plan, support plan
(1) A care and support plan or, in the case of a carer, a support plan is a document prepared by a local authority which—
(a) specifies the needs identified by the needs assessment or carer's assessment,
(b) specifies whether, and if so to what extent, the needs meet the eligibility criteria,
(c) specifies the needs that the local authority is going to meet and how it is going to meet them,
(d) specifies to which of the matters referred to in section 9(4) the provision of care and support could be relevant or to which of the matters referred to in section 10(5) and (6) the provision of support could be relevant,
(e) includes the personal budget for the adult concerned (see section 26), and
(f) includes advice and information about—
(i) what can be done to meet or reduce the needs in question;
(ii) what can be done to prevent or delay the development of needs for care and support or of needs for support in the future.
(2) Where some or all of the needs are to be met by making direct payments, the plan must also specify—
(a) the needs which are to be so met, and
(b) the amount and frequency of the direct payments.
(3) In preparing a care and support plan, the local authority must involve—
(a) the adult for whom it is being prepared,
(b) any carer that the adult has, and
(c) any person whom the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult's welfare.
(4) In preparing a support plan, the local authority must involve—
(a) the carer for whom it is being prepared,
(b) the adult needing care, if the carer asks the authority to do so, and
(c) any other person whom the carer asks the authority to involve.
(5) In performing the duty under subsection (3)(a) or (4)(a), the local authority must take all reasonable steps to reach agreement with the adult or carer for whom the plan is being prepared about how the authority should meet the needs in question.
- Section 26 deals with the personal budget.
"26 Personal budget
(1) A personal budget for an adult is a statement which specifies—
(a) the cost to the local authority of meeting those of the adult's needs which it is required or decides to meet as mentioned in section 24(1),
(b) the amount which, on the basis of the financial assessment, the adult must pay towards that cost, and
(c) if on that basis the local authority must itself pay towards that cost, the amount which it must pay.
(2) In the case of an adult with needs for care and support which the local authority is required to meet under section 18, the personal budget must also specify—
(a) the cost to the local authority of meeting the adult's needs under that section, and
(b) where that cost includes daily living costs—
(i) the amount attributable to those daily living costs, and
(ii) the balance of the cost referred to in paragraph (a)"
- The local authority must also exercise its functions as the provider of special educational services, for children and young people with special educational needs and disabilities. The relevant act is the Children and Families Act 2014 (CFA 2014). Section 20 deals with the circumstances where special educational needs might arise:
"20 When a child or young person has special educational needs
(1) A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.
(2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
(a) has a significantly greater difficulty in learning than the majority of others of the same age, or
(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions."
- Section 21, a provision to which extensive reference has been made during the course of this case, defines the different types of educational provision, and the extent to which they may overlap with social care:
"Special educational provision, health care provision and social care provision
(1) "Special educational provision", for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—
(a) mainstream schools in England,
(b) maintained nursery schools in England,
(c) mainstream post-16 institutions in England, or
(d) places in England at which relevant early years education is provided.
(4) "Social care provision" means the provision made by a local authority in the exercise of its social services functions.
(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision). 
- Section 25 requires a local authority to integrate its health care and social care provision, with educational provision, viz:
"25 Promoting integration
(1) A local authority in England must exercise its functions under this Part with a view to ensuring the integration of educational provision and training provision with health care provision and social care provision, where it thinks that this would—
(a) promote the well-being of children or young people in its area who have special educational needs or a disability, or
(b) improve the quality of special educational provision—
(i) made in its area for children or young people who have special educational needs, or
(ii) made outside its area for children or young people for whom it is responsible who have special educational needs."
- This reflects the more general statutory guidance given under the CA 2014 at paragraph 11.12 that local authorities should carry out parent support responsibilities with a view to promoting integration with health and other related services such as housing. In other words, a disparate approach to statutory functions and responsibilities is discouraged.
- Where an assessment is made that special educational needs should be provided for and made the subject of an education, health and care plan (EHC) the local authority has an absolute duty to prepare and maintain that plan. The scope of the duty insofar as it is relevant is set out in section 37:
"37 Education, health and care plans"
(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—
(a) the local authority must secure that an EHC plan is prepared for the child or young person, and
(b) once an EHC plan has been prepared, it must maintain the plan.
(2) For the purposes of this Part, an EHC plan is a plan specifying—
(a) the child's or young person's special educational needs;
(b) the outcomes sought for him or her;
(c) the special educational provision required by him or her;
(d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;
- Where a parent or young person is dissatisfied with a number of specified decisions in relation to the EHC plan, there is a right of appeal under section 51:
(1) A child's parent or a young person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (mediation).
(2) The matters are—
(a) a decision of a local authority not to secure an EHC needs assessment for the child or young person;
(b) a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan;
(c) where an EHC plan is maintained for the child or young person—
(i) the child's or young person's special educational needs as specified in the plan;
(ii) the special educational provision specified in the plan;
(iii) the school or other institution named in the plan, or the type of school or other institution specified in the plan;
(iv) if no school or other institution is named in the plan, that fact;
(d) a decision of a local authority not to secure a re-assessment of the needs of the child or young person under section 44 following a request to do so;
(e) a decision of a local authority not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment under section 44;
(f) a decision of a local authority under section 45 to cease to maintain an EHC plan for the child or young person.
- I have already referred to the statutory guidance. The most recent has been updated to August 2017. One particular paragraph which has been referred to on several occasions is relevant to the division of responsibilities between the local authority and the parent/carer:
"Needs met by a carer
10.26 Local authorities are not under a duty to meet any needs that are being met by a carer. The local authority must identify, during the assessment process, those needs which are being met by a carer at that time, and determine whether those needs would be eligible. But any eligible needs met by a carer are not required to be met by the local authority, for so long as the carer continues to do so. The local authority should record in the care and support plan which needs are being met by a carer, and should consider putting in place plans to respond to any breakdown in the caring relationship."
- In respect of personal budgets, paragraph 11.3 emphasises the role:
"11.3 The personal budget is the mechanism that, in conjunction with the care and support plan, or support plan, enables the person, and their advocate if they have one, to exercise greater choice and take control over how their care and support needs are met. It means:
knowing, before care and support planning begins, an estimate of how much money will be available to meet a person's assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including proportion the local authority will pay, and what amount (if any) the person will pay
being able to choose from a range of options for how the money is managed, including direct payments, the local authority managing the budget and a provider or third party managing the budget on the individual's behalf (an individual service fund), or a combination of these approaches
having a choice over who is involved in developing the care and support plan for how the personal budget will be spent, including from family or friends
having greater choice and control over the way the personal budget is used to purchase care and support, and from whom."
- At paragraph 11.4 the need for transparency is confirmed:
"11.4 It is vital that the process used to establish the personal budget is transparent so that people are clear how their budget was calculated, and the method used is robust so that people have confidence that the personal budget allocation is correct and therefore sufficient to meet their care and support needs. The allocation of a clear upfront indicative (or 'ball-park') allocation at the start of the planning process will help people to develop the plan and make appropriate choices over how their needs are met."
- The personal budget is an important part of the care and support plan:
"The personal budget
11.7 Everyone whose needs are met by the local authority, whether those needs are eligible, or if the authority has chosen to meet other needs, must receive a personal budget as part of the care and support plan, or support plan. The personal budget is an important tool that gives the person clear information regarding the money that has been allocated to meet the needs identified in the assessment and recorded in the plan. An indicative amount should be shared with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the personal budget will be used is set out in the care and support plan, or support plan. At all times, the wishes of the person must be considered and respected. For example, the personal budget should not assume that people are forced to accept specific care options, such as moving into care homes, against their will because this is perceived to be the cheapest option."
- Finally, the sufficiency of the amount specified in the personal budget is emphasised:
"Elements of the personal budget
11.10 The personal budget must always be an amount sufficient to meet the person's care and support needs, and must include the cost to the local authority of meeting the person's needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay."
- The Claimant relies upon a section 6 Human Rights Act claim derived from Article 2 of the First Protocol to the European Convention on Human Rights (A2P1) in relation to the Defendant's alleged failures to secure and approve the placement at Fix n'Kiks prior to resolution by the FTT. Article 2 provides as follows:
"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
The cost of caring for CP
- In order to drill down into the rather complex nature of the dispute between the parties, it is necessary to understand the various aspects of care required for the Claimant and how it is expected that such care will be funded or provided for. This applies not just to the placement at Fix n'Kiks which she attends from 10 o'clock to 3 o'clock on every weekday, but also at home in the mornings, evenings and at weekends.
- First of all, there are specialist services provided by the local authority which are paid for centrally, and not specifically allocated to the Claimant's budget. They involve education, therapies, general support, staff at any day centre or respite care, and so on. They have not been the subject of any specific discussion in the case.
- Second is the paid-for care specifically provided to help with CP when she is at home with her mother and father. This has involved balancing the amount of care provided by CP's mother, with the extent to which she requires assistance by the provision of paid-for care. In theory, there could be no reliance on parental support with the care provided by bought in services entirely, in the discharge by the local authority of its duty. This has been a hotly disputed area. It involves the application of the duties and responsibilities owed under the CA 2014.
- Third is the cost associated with CP's attendance during the day at Fix n'Kiks. There are two elements to this. The first, which has never been the subject of any real challenge, is the provision of a care worker, Trish, who looks after the Claimant for the entirety of her day at Fix n'Kiks, and as I understand it takes her to and from the venue. This is the subject of a direct payment which discharges the cost. The second is the fee associated with attendance at Fix n'Kiks. This is currently £25,200 per annum and has been at the centre of a very significant dispute between the parties. The problem arises from the business interest which CP's parents have in the premises and the fact that the business or charity which they control benefits directly from such a payment. In view of the fact that there have been other establishments available, the Defendant has been unwilling to agree to this placement which is seen as expensive and unsuitable. It has involved questions of duties and responsibilities under the CFA 2014. The matter has now been resolved by the FTT decision, following the earlier decision that an EHC plan should be put in place. However, the method of payment, as well as the quantum of the cost, as I have indicated, is still the subject of disagreement, although not a matter for this court to resolve.
- Finally, there is the cost of travel to and from Fix n'Kiks. This was not a matter for the FTT. It was initially disputed by the local authority, on the basis that payment should have come out of benefits (presumably DLA and the mobility component) but recently the cost has been accepted, and I understand will now be the subject of additional direct payments.
- The parties provided a list of issues at the outset of the hearing on 5th October 2017. Unfortunately, each had their own slightly modified version, and the approach was not helpful to the court, particularly as matters were continuing to evolve, and between the two hearing dates there were further developments in relation to Fix n'Kiks, and transport. Accordingly, and in the absence of a brief agreed statement of matters which the court is now being asked to decide, I have done my best to cull from the arguments the issues as I understand them in outline summary form:
"(a) Is a local authority acting unlawfully and/or in such a way that is challengeable by judicial review where it does not address the social care aspect of special educational provision, or the cost of any special educational needs placement when there is an outstanding appeal to the FTT under section 51 of the Children and Families Act 2014 in relation to those matters?
(b) Has the Defendant lawfully discharged its duties under the Care Act 2014 and the Children and Families Act 2014 towards the Claimant in respect of the 2016 and 2017 care plans (excluding the revised plan)?
(c) If it has not, does this entitle the Claimant to pursue a challenge by way of judicial review, bearing in mind that there is no present objection to the care plan/direct payment, and no issue going forward which the court is being asked to determine?
(d) Has there been a breach of A2P1?
(e) If the Claimant is entitled to declaratory relief in relation to any alleged unlawfulness, does this give rise a claim to monetary compensation by restitution or otherwise?"
The respective submissions
The Claimant's arguments
- The Claimant provided a supplementary skeleton argument for the resumed hearing on 7th December 2017. Although there was no formal amendment to the JR claim, Mr Lawson set out the relief which is sought at the foot of that skeleton. Insofar as it represents the culmination of the argument which is advanced, I summarise it as follows:
"(a) a declaration of entitlement to a direct payment from April 2016 covering the cost of Fix n'Kiks, carer support thereat, and transport;
(b) the quashing of all earlier assessments, care plans, personal budgets and direct payments from April 2016, prior to August 2017;
(c) a mandatory order re-determining those budgets with appropriate resulting direct payments;
(d) an order for the payment of the Fix n'Kiks fee, carer support and transport going forward;
(e) a declaration of a breach of A2P1 over a three-year period in that no education has been available for the Claimant;
(f) the adjournment of any question of compensation and restitution resulting from the court's determination."
- As I have indicated, despite (d) above, in respect of which this court is not being asked to exercise a jurisdiction or which is likely to be resolved elsewhere, it is acknowledged that there is no challenge going forward; nevertheless, Mr Lawson argues that the process involved in the 2016 and 2017 assessments and care support plans has been unlawful in a number of respects. If this unlawfulness is established, there will be concomitant additional direct payments (effectively arrears) on the basis that the Claimant and her parents have been out of pocket as they have been required to make up the shortfall in care services.
- The principal submission of the Claimant in respect of those assessments and support plans is that the jurisdiction under the CFA 2014 which enabled an appeal in respect of special educational provision to the FTT did not affect or in any way excuse the responsibility of the local authority exercising its duty under the CA 2014. All aspects of care provision could and should have been addressed by the local authority in the care and support plans, and in the EHC when it was initially drawn up, and it is no answer to any unlawfulness in relation to the setting of the personal budget and making it sufficiently clear for the Claimant's family, to assessing the parental contribution to care, and in ensuring that appropriate payment was made for attendance at Fix n' Kiks. The Defendant's duty which is to promote the Claimant's well-being includes participation in education, training or recreation.
- Insofar as the Defendant may seek to draw a distinction between education and social care, Mr Lawson submits that such a distinction is inappropriate. First, Section 21 (5) of CFA which creates the concept of deemed special educational provision with some aspects of social care provision applies only for the purposes of part 3 of CFA 2014 ("children and young people in England with special educational needs or disabilities").
- Second the challenge relates to a period before any EHC was in place, and when care provision was not being assessed under the CFA 2014, but under the CA 2014. This is a matter of simple chronology.
- Third, as payment for Trish at Fix n'Kiks is made "under" the CA 2014, it would be illogical that the fee for the venue comes under a different jurisdiction.
- Fourth, insofar as Fix n'Kiks is a placement rather than an educational provision, it is difficult to see how s21(5) of CFA could apply to the fee. It is wrong, says Mr Lawson, to disregard the fact that some aspects of social care may occasionally be educational, say for instance in relation to feeding and some day-to-day activities; a strict demarcation unnecessarily hampers the way in which a local authority discharges its responsibilities when making assessments. Thus, it was appropriate for the Defendant to have considered payment of the fee for the placement under CA 2014.
- Mr Lawson maintains his challenge to the 2016 and 2017 assessments, addressing first of all the unlawfulness of the personal budgets and the non-compliance with the duty to provide the same.
- It is pointed out that the first care plan (April 2016) contains no personal budget at all. The December 2016/May 2017 care plan provided a budget described as 300+ (drawn from a matrix of those with 7 to 10 eligible unmet needs), and even the most recent care plan has no figure inserted in the personal budget section. (Although it is not suggested that the direct payment, which does not cover attendance at Fix n'Kiks and transport as yet is otherwise inadequate). Insofar as the personal budget is to enable the parents/voluntary carer to have a reasonable understanding as to the extent of provision to meet the needs of the disabled person, both that which is paid for by the local authority, and that which the parent is expected to provide, its absence represents a clear failure to comply with section 25 of CA 2014 and the statutory guidance, whilst budgets which are vague, or which do not specify the full extent of the services and the respective costs are lacking in transparency, and equally defective.
- Mr Lawson submits that this is not simply an argument of form over substance. There should have been included in the personal budgets the cost of attendance at Fix n'Kiks and transport to and from the placement as well as a reasonable amount of care support at home on weekends which did not place excessive and unreasonable reliance upon the parents. This would then have identified the direct payment which would have been available to the Claimant.
- He goes on to develop his submissions on the issue of unreasonable reliance on parents and the unlawful approach to family support (ground three of the Claimant's challenge) exemplifying the Defendant's breach in relation to the absence of or lack of transparency in personal budgets and identifying appropriate direct payments. Here, it is said, the Claimant's parents have made it clear to the local authority at the various assessment stages that they were unable to cope with the amount of care which was expected of them, as well as drawing to their attention their own particular health needs. Whilst the present care plan (September 2017) represents the minimum requirement, and is not the subject of challenge, this could not be said in relation to the previous care plans. If the Claimant had been asking (through her parents) for her needs to be met by the local authority it could not be said that the family was "willing and able" to make provision for those needs, contrary to paragraph 10.26 of the statutory guidance.
- Although it is not the subject of any specific declaratory relief, Mr Lawson maintained his argument in relation to ground four, which relates to a failure to integrate educational and social care provision services. It is submitted that under the CA 2014 (section 9) a needs assessment must include an impact on the matters specified in section 1 (2) (e) by which the local authority is under a duty to promote access to education, training or recreation. Accordingly, it could not be ignored by the Defendant's department which took responsibility for social care provision. The specific duty, of course, was contained in section 25 of CFA 2014 which required an integration of health, education and social care. When considered in conjunction with the guidance and the fact that the Claimant had only been able to obtain relief by pursuing two separate appeals to the FTT as well as the judicial review claim in relation to matters outside the tribunal's jurisdiction there has been a manifest failure to integrate services. This has been further demonstrated by the fact that there had been no provision for attendance at Fix n'Kiks (and until recently no agreement to make such provision) and the Claimant's parents had endured a long and drawn out dispute with repeated claims in order to obtain an appropriate increase in the direct payments for a combination of the social care and special educational needs provision.
- The residual submissions of Mr Lawson relate to the question of financial recompense, incorporating a potential Human Rights Act claim (A2P1) and a restitution claim. He points out that there are two aspects in which the Claimant has suffered financial loss (or her parents) in relation to the Defendant's failures, which are now accepted expressly by the admission that she is entitled to attend Fix n'Kiks and impliedly by the increase in direct payments with further assessments to those in 2016 and early 2017. The first of these relates to the shortfall in direct payments, which should be assessed by a properly calculated personal budget, and the second relates to the cost of attendance at Fix n'Kiks and transport thereto over the past three years.
- There is clear identifiable loss, and short of making complaint via the ombudsman process, the alternative routes open to the Claimant are to quash the earlier decisions and have proper personal budgets set with consequential case management to address the compensatory aspect, to pursue an A2P1/Human Rights Act claim for damages, or to pursue a claim in restitution. In respect of the potential damages claim which is linked to a public law challenge (whether these are pursued as pure restitution claims or money damages claims) there is no difficulty in adjourning off subsidiary questions of quantification with directions for a subsequent hearing either as part of the JR claim, or in a separate part 7 claim. Mr Lawson relies upon the observations of the High Court (Richards J as he then was) in R (on the application of the Kurdistan Workers Party) v Secretary of State for the Home Department  EWHC 644.
- In respect of a claim based upon A2P1 and the failure of special educational provision, Mr Lawson referred this court to the more recent decision of the High Court in R (E) v Islington  EWHC 1440 where a breach of the right to education was established in circumstances where a child had been moved from one authority to another and access to available services had been denied. In that case the right to education was described as "not absolute" but not otherwise "weak". He accepted A2P1 did not create an obligation to provide for all special educational needs, and insofar as the Defendant may seek to place reliance upon the case of A v Essex  AC 280, a decision of the Supreme Court, that case, which involved a denial of access of only 18 months was capable of distinction with the present case where the denial had been upwards of three years. Further, there is no requirement that in order to establish a breach of A2P1, that an individual is not being educated (Timishev v Russia  EHRR 37.
- The claim of restitution relies on the principle of unjust enrichment and draws comfort as a claim capable of being pursued within judicial review proceedings from the recent decision of the High Court in Richards v Worcestershire  EWHC 1954, where the court accepted that it was arguable that damages could be recovered for the failure of the local authority in respect of its duty owed under section 117 in the provision of after-care for a patient. The unjust factor arises either from mistake as to the entitlement on the part of the Claimant to such services, or unconscionability in the context of the later admission of such entitlement. Mr Lawson relies upon a specific reference in the Defendant's records which revealed in a footnote in late 2016 an acceptance that there was no legal basis for not paying for the transport to and placement at Fix n'Kiks.
The Defendant's arguments
- Mr Lock accepts that the local authority had opposed the making of an EHC plan in the first place on the basis that the extent of the Claimant's disabilities suggested that no benefit would be derived from providing any educational programmes, facilities and services to which such a plan would be relevant. However, once the jurisdiction of the FTT had been invoked by the Claimant's family on their application, the responsibility for decision-making in relation to all the aspects relating to Fix n'Kiks which have been the subject of challenge within these judicial review proceedings lay with the tribunal, and not with the local authority. It is for this reason, says the Defendant, that the challenge fails on a jurisdictional basis, in that judicial review should be a remedy of last resort. The complaints which had been pursued by the Claimant's family and ultimately upheld, namely the need for such a plan, the placement at Fix n'Kiks, and the requirement to pay for such a placement were matters within the jurisdiction of the tribunal. Although the EHC plan, once in place, incorporates all aspects of the social care provision as well, and is in effect the reference point for the package of care which is currently provided, until the EHC plan had been finalised the local authority's responsibilities in relation to the decisions which it made were limited only to those aspects in respect of which the tribunal did not have jurisdiction.
- Mr Lock's principal argument revolves around an understanding of the distinction between special educational provision and social care provision set out in section 21 of CFA 2014. Essentially, by subsection (5) any social care provision which educates or trains a child or young person is to be treated as or deemed to be special educational provision. Thus, whilst aspects which would obviously come within the category of special educational provision, including the cost of attendance at the placement, are clearly within the jurisdiction of the tribunal, so also is the social care which is provided to the Claimant during the day when at Fix n'Kiks. It is not suggested that the decision is exclusively within the province of the tribunal, but once the appeal process is invoked the responsibility, in effect, passes. Mr Lock refers to the recent decision of R (on the application of Zahid & others) v University of Manchester  EWHC 188 (Admin) to support the proposition that a parallel process should be allowed to run its course before embarking upon judicial review proceedings.
- In respect of "deemed special educational provision" reference is also made to the case of East Sussex CC v W  PTSR 755 a decision of Judge Jacobs in the Upper Tribunal. This was a case in which a severely disabled young person who was the subject of an EHC, residing in supported living, but also attending an educational placement, sought to have the supported living treated as a special educational provision in the plan, and succeeded before the first tier tribunal. The Upper Tribunal judge allowed the appeal of the local authority on the basis that the first tier tribunal had acted unlawfully in assigning the supported living to that section of the plan representing educational placement attended by the young person. The ratio of the case is less important than the observation of Judge Jacobs at paragraph 25, which drew a distinction between direct special educational provision and deemed special educational provision. In the latter respect the responsibility of the tribunal related only to filtering out the special educational provision from the social care element. The case, whilst not binding on this court, is said to be important because it emphasises the role of the first tier tribunal as a de novo decision-maker in respect of the special educational provision aspect which includes social care services which educate or train a young person. In other words, not only does the placement itself come within the jurisdiction of the tribunal, but also the social care aspect which is deemed special educational provision, that is the care during the day at Fix n'Kiks. Clearly, excluded from the consideration, is the social care provision at evenings and weekends provided by the parents in combination with external assistance.
- In the submissions of counsel for the Defendant, insofar as any challenge is maintained as to a lack of transparency in the personal budget, or a suggestion that the personal budgets in the earlier plans were unlawful, the fact that the final level of direct payment was yet to be determined at the time in the face of an outstanding appeal under section 51 of CFA 2014, because it depended upon the decision of the tribunal, provides a complete answer. The Claimant's remedy lay elsewhere, and the Defendant's duty falls to be considered in that context.
- Mr Lock addressed the balance of the challenge on the basis that it related to historical matters, that is the 2016 and earlier 2017 support plans previously in place, but now superseded by the later plan. He disputed the right of the Claimant to challenge the earlier plans in principle, on the basis that the reviewing court should only be concerned with the challenge of current decisions. However, where the question of unlawfulness was being considered, Mr Lock invited the court to ask three questions: first of all what was the local authority approach? Second, was it in accordance with their duties? Third does the evidence support the discharge by the local authority of its statutory duties?.
- He refers the court to the evidence of Deborah Harding which sets out the approach adopted, and asks it to be noted that the care provided for CP is predominantly in her family home, that is premises owned by the parents. To determine whether the approach was lawful, consideration should be given to paragraph 10.26 of the guidance (supra). There was a duty to consider the care needs which were being met by the family/carer when making the assessment, and recording that in the assessment and the subsequent plan. It is clear that this happened, as demonstrated by the documentation including the patient summary (bundle page 122) and the discussion with CP's mother (bundle page 129ff). The contingency that an assessment is subject to any change in circumstances is also clearly noted.
- It is submitted that it is not open to this court to resolve any factual disputes about the question of an agreement of the assessment with CP's parents, although the evidence is noted. This court should only consider unlawfulness if there was a refusal to review in response to a complaint, or there had been insistence on family care in the light of a lack of willingness on the part of the family, or there had been an irrationally low level of care. It is relevant that when the care plan was produced in this case, the Claimant's parents neither asked the local authority for a review, nor used the complaints process: instead they proceeded straight away to judicial review. It is immaterial that the judicial review may have had the effect of leading to further assessments which were more advantageous for the Claimant. What is important, it is submitted, is whether it was reasonable to embark upon judicial review proceedings.
- Mr Lock made submissions in relation to the role of the Claimant's father and the financial interest which it is said he maintained in the premises at which the Claimant was placed, namely Fix n'Kiks. He was the Claimant's litigation friend, and had to be considered a suitable person without any adverse interest to the protected party pursuant to CPR 21.4. Essentially by pursuing a claim of unlawfulness in relation to the decision-making process prior to the most recent tribunal involvement, the Claimant's father was seeking to recover "back pay" for the placement which would benefit his company or charity, whichever body it was that was entitled to the reasonable fee for the use of the premises. Insofar as he has acted as the litigation friend, he would be the beneficiary of monies received by way of direct payments on behalf of the Claimant and in effect would be paying himself. These are all matters relevant to the court's consideration it is submitted, and the court should be alive to any disguised attempts to circumvent the principles set out in the judgment of Lord Hoffmann in the case of O'Rourke v Camden LBC  AC 188.
- In respect of ground four of the challenge, Mr Lock submits that the relevant statutory duty under section 25 of CFA 2014 to ensure the integration of services is a weak one. It is not an absolute duty to integrate service departments as appears to be suggested, but to promote cooperation. It is pointed out that no relief is sought in relation to this alleged failure, and submitted that the court should not embark upon a detailed examination of compliance in such circumstances. The evidence, in any event, pointed to a process whereby the local authority discharged its responsibilities where it was able, carrying out assessments in cooperation with the parents as appropriate, and where decisions were undertaken by the tribunal, the local authority proceeded to act upon those decisions. It is submitted that this ground is misconceived.
- Mr Lock addressed the question of financial redress by reference to the assertion of a breach of the right to education (A2P1) which was to all intents and purposes a claim for Human Rights Act damages and restitution.
- In respect of the claim for a breach of A2P1, reference is made to the judgment of Lord Bingham in the leading case of A v Headteacher and Governors of Lord Grey School  AC 363, in which it was confirmed that there was no convention guarantee of education at all by a particular institution. If there was to be a breach under this article, it would have to be established that the state had acted to deny a pupil effective access to such educational facilities as were provided. The House of Lords in this case approved the earlier decision of the Court of Appeal in R (Holub & Anor) v Secretary of State for the Home Department  EWCA Civ 243 which confirmed the limited nature of the right article 2, which guaranteed access to a basic minimum of education available, and its decision was followed in the later case of A v Essex County Council  AC 280 which also addressed the question as to whether or not a delay in setting up educational facilities amounted to a breach of the duty.
- Mr Lock accepted that the right was available to those other than of school age, and thus in principle accessible by the Claimant, but insofar as it was a weak right with minimal guarantees, for older persons such as the Claimant it was even weaker. He relied upon the decision of the European court in Sahin v Turkey  44 EHRR 5 in relation to the availability of access to institutes of higher education.
- It was submitted on behalf of the Defendant that the convention right to education could not extend, in the circumstances, to the imposition of a duty for the creation of new educational facilities, regardless of whether or not domestic law required these to be established. Mr Lock referred to the fact that on the Defendant's evidence the Claimant's family had been offered alternative placements, but more significantly relied upon the fact that once application had been made to the FTT following genuine disagreements between the local authority and the Claimant's parents, the tribunal became the decision maker. This was relevant in two respects. First, it could not be said that the Defendant's actions arose from any "denial" of a right to access on their part, once the local authority was obliged to defer to the decision of the tribunal, and second the decision of the tribunal constituted just satisfaction for the Claimant pursuant to section 8 of the Human Rights Act 1998.
- In respect of the claim in restitution, he pointed out to the court that apart from any potential infringed rights under A2P1, the Claimant had purely public law rights and has no separate private law cause of action. He relied upon the authority of Shingara v Secretary of State for the Home Department  Imm AR 257. Whilst a potential claim of mixed public and private law rights could subsist, this was only in circumstances where the private law right was independent of any financial compensation claim arising out of the public duty breach.
- Insofar as the Claimant sought to rely upon the case of Richards v Worcestershire County Council  EWHC 1954, Mr Lock submitted that this was not a final decision case, but one in which an application had been made to strike out the claim for financial relief. The case concerned an alleged failure on the part of the local authority in relation to its duties owed under section 117 of the Mental Health Act 1983 in respect of the provision of after-care. The Claimant's deputy sought to recover substantial costs incurred in making independent provision within private law proceedings, and the Defendant had argued that only a public law remedy was available. The claim had been based primarily in restitution. It is understood that there has been an appeal from that decision in any event.
- Mr Lock also takes issue with the Claimant's assertion that the local authority has been unjustly enriched by not providing payments in relation to the disputed placement and other aspects where the provision of social care had been allegedly unlawful (i.e. lacking). He points out that resources which might have been spent on CP have been spent on other service users, and there is no authority to support the proposition that unjust enrichment arises from redistribution of resources in such circumstances. Further, insofar as it may be alleged that there had been a mistake on the part of the local authority, this argument is misconceived; in effect this was no more than a genuine disagreement as to the appropriateness of CP's placement at Fix n'Kiks.
- At the heart of the dispute between the parties is the cost of attendance at Fix n'Kiks. Whilst this will have to be met from here on by the local authority in some form or another when a suitable vehicle for payment is established, the question arises as to whether or not from the time of first placement, payment should have been included in the care package. If the Defendant has acted unlawfully in any respect by not making such inclusion, then the further and subsidiary question arises as to whether this is a justiciable matter within judicial review proceedings to entitle a direction for compensation in relation to past losses.
- However, before addressing those questions it would be helpful to deal with other aspects of unlawfulness which are attributed to the Defendant's process, in relation to (i) the personal budgets, (ii) the balance between family support and external care provision, and (iii) the asserted failure to integrate education and social care provision.
- It is important to understand the rationale of the personal budget which is available to the individual being supported and his/her carers. It seems to me that this is clear from paragraph 11.3 of the statutory guidance. The adult with eligible needs and those providing voluntary care should have a good understanding of the extent to which support will be provided by the local authority in respect of both those services which are provided directly by specialists (and paid for by the local authority) and those which will be funded by way of direct payment. Of course, because voluntary care figures in most assessments, and it is this aspect in which the family will be interested, if the personal budget covers the total cost of meeting the eligible needs, thus including the direct payments, that element to be provided voluntarily will be easily discernible.
- The duty is a clear one derived from section 26 of CA 2014, and any failure to provide a transparent budget in a care and support plan represents a prima facie breach of that duty which in my judgment would be susceptible to legal challenge by way of judicial review, assuming that it was otherwise uncorrected. The Claimant provides a compelling argument in respect of the earlier plans which were defective in providing this transparency. I am unconvinced by the explanation of Deborah Harding that inclusion in the personal budget of the cost of the placement at Fix n'Kiks which was disputed presented a difficulty, and that this was a matter which could only be addressed after the FTT had resolved the question. Provision was still being made for care and support costs during the day (when CP was attending Fix n'Kiks) as well as other aspects of professional social care to supplement that provided by the family. I do not see how this would have prevented compliance with the duty under section 26, and it did not represent effective following of the guidance.
- However, in my judgment the submission of Mr Lock in this regard is a valid one. The earlier care and support plans have been superseded by the latest plan which incorporates the special educational needs component affirmed by the FTT. Whether or not the local authority has acted unlawfully in relation to past matters is irrelevant for the purposes of judicial review, unless that unlawfulness has continuing effect on or consequence for the Claimant's rights and entitlements. I will address the question of restitution and other aspects of damages for potential breaches below, but it seems to me that even if past unlawfulness is established in relation to the way in which the local authority drew up the support plans, and in particular identified (or failed to identify) the personal budget, that is a failure of form, rather than substance, because it does not impact directly on the Claimant if it is subsequently corrected. Whilst Mr Lawson was not prepared to accept that the present statement of the personal budget is compliant with the requirement for transparency, he has not focused his arguments on that aspect, (presumably because the direct payments are now agreed) as opposed to previous personal budgets.
- Accordingly, whilst I acknowledge the validity of an argument based upon unlawfulness in relation to transparency and compliance with the guidance, in my judgment any relief by way of quashing previous personal budgets would be inappropriate in the circumstances.
- When preparing a care and support plan a local authority is under a clear and unambiguous duty in relation to the involvement of the carer and, if appropriate, the adult concerned. This is derived from section 25 of CA 2014. In other words, particularly where an assessment has been made as to the amount of care which the family carer is providing, a plan which assumes a level of input, or seeks to impose an unreasonable demand on an unwilling family carer will be prima facie unlawful. However, it is paragraph 10.26 of the guidance which explains the approach which is required in practical terms. Such an approach cannot be achieved without cooperation and involvement of the family carer. It is also clear that an adult's family carer is under no obligation to meet the eligible needs of the adult and necessarily any plan must be contingent on such care being withdrawn, or the local authority being made aware that the carer is not in a position to cope.
- Whilst the factual dispute is noted in this case (and the court is not invited to make any determination as I have indicated), reference has been made to the relevant assessment in 2016 prior to the commencement of the legal challenge, in particular the patient summary at page 122, and the discussion with CP's mother at page 129. In my judgment, this assessment is not only thorough, representing a detailed analysis of the way in which the eligible needs arise and how they are being met, but it also arrives at a conclusion which could only have been achieved with the significant input of CP's mother. More significantly, however, is the fact that the contingency is clearly expressed. On page 132 the following is recorded:
"…[CP's mother and principal carer)] other is also aware that if her circumstances change she will be entitled to further assessment"
- The Claimant's argument is based upon an assertion that unreasonable reliance is placed on familial input. Whilst the assessment may have been inaccurate, it seems to me that such an argument could not be sustained on the basis of the written material. However, even if a carer was dissatisfied with the assessment of adult social care and believed that disproportionate reliance was being placed on his or her input in caring for the adult, several steps could have been taken short of challenging the lawfulness of the approach by way of judicial review. This court has not been made privy to any sequence of correspondence following assessments and the setting of direct payments in the care and support plans, apart from the pre-action protocol letter (July 2016) which set out the basis for alleging that the assessment and support plan was unlawful (inter alia) because of the extent of parental input which was relied upon.
- It may well have been the case that the Claimant's parents were primarily concerned about the local authority's intransigence in respect of identifying CP's special educational needs (as identified in the separate appeal to the FTT at about this time) but whilst they were entitled to pursue a challenge of unlawfulness in relation to the assessment and plan, the process of assessment by its very nature was a fluid one. There were numerous alternative approaches available to the Claimant and her family if dissatisfied with an assessment, which as I have indicated on its face appeared to be thorough, and based upon a cooperative approach with her parents, particularly her mother. Not only could a complaint had been made, but a further assessment requested. At any time, it was open to the family to have utilised other methods than judicial review to indicate to the local authority that it could not cope on the basis of the external professional care provided by the direct payments and that the parents were unwilling to provide the level of care demanded.
- This court cannot ignore the fact that whether as a result of the judicial review procedure, or an elucidation of the difficulties which CP's parents were facing on lower levels of direct payment, there were further reassessments which led to an adjustment in the amount of support which was provided, and a reduction in the parental input. A satisfactory level has now been achieved. The argument pursued by Mr Lawson seeks to have the Defendant compelled to make the assessment as to an appropriate level of direct payment for 2016 and early 2017, which is now considered acceptable, on a retrospective basis, so to speak. This requires a level of scrutiny as to the way in which previous assessments have been carried out which in my judgment is disproportionate (save insofar as any related damages or restitution claim may be available with which I shall deal later), and which if sustainable as an approach imposes upon a local authority an unreasonable burden when there is no evidence that it has done anything other than follow the guidance and arrive at an assessment on a collaborative and cooperative approach with the carer/parents.
- In this respect, I agree with Mr Lock QC. Even if a reviewing court were minded to scrutinise earlier decisions which have been overtaken by later and current decisions, unlawfulness could only be identified in circumstances where there had been a refusal to review in response to a complaint, or insistence on family care in the light of clear evidence that the family was unwilling, or that there had been an irrationally low level of care identified on the assessment. In my judgment none of those aspects arise in the present case.
- I can deal with the third ground pursued by the Claimant relatively briefly. As I have indicated, it is not an aspect of the claim upon which any present relief is sought. Again, the duty is clearly stated in the legislation (paragraph 25 of CFA 2014). The duty, however, is expressed in very general terms and it seems to me is intended to proscribe the policy and the approach in relation to special educational provision where it coincides with other aspects of health care and social care provision. Mr Lock refers to the duty as a "weak" one. This implies that is a statutory duty it is nominal. I prefer to regard it as a duty which does not readily identify with individual rights which might be enforceable, as opposed, in this context, to the right to have an assessment in relation to eligible needs, or the setting of a personal budget. In such circumstances whilst failures to integrate might be susceptible to challenge this could only be on a broader policy basis where there was clear evidence that the local authority in establishing its procedures and ignored the purpose of the legislation.
- In any event, I do not regard this is a case where any such failure can be identified. The fact that it was necessary for the Claimant to pursue a parallel process to enhance her entitlement to payment for the full extent of special educational provision, even if that created a significant overlap with the social care direct payments is not in my judgment indicative of a failure on the part of the local authority to integrate services. It is a feature of a system whereby some rights were enforceable by an appeal process to a separate judicial body which took over the decision-making from the council. Accordingly, this ground of challenge is not sustainable.
Social care provision or special educational provision?
- I now return to the question of direct payments in relation to Fix n'Kiks attendance and transport, which involves addressing the arguments of the Defendant at paragraphs 76 and 77 above on the social care aspect of educational provision, as identified in the issue at paragraph 58(a).
- It seems to me that there is a degree of misunderstanding on the part of Mr Lawson as to the way in which counsel for the Defendant is relying on the concept of "deemed special education provision" under CFA 2014 and the justification of the local authority's approach. I do not read Mr Lock's submissions as amounting to an assertion that the Defendant's responsibilities under the CA 2014 are ousted by the jurisdiction of the FTT or that it is appropriate to consider direct payments under the umbrellas of separate regimes. Instead, it seems to me, his argument is to the effect that the lawfulness of the way in which the assessment of the local authority and the drawing up of care and support plans should be considered is in the context of a parallel jurisdiction, where the ultimate decision in relation to some aspects of social care provision, as well as the appropriateness and cost of the placement at Fix n'Kiks lay in the hands of the tribunal. In other words, a legal challenge by way of judicial review is inappropriate to address failures of or disagreements with the local authority in relation to those aspects. I do not interpret his submission that some payments fall to be dealt with under one regime and some under another.
- Whilst this court is not bound by the decision of Judge Jacobs in the Upper Tribunal in East Sussex v W, in my judgment the reasoning of that case is compelling, and provides a sound basis for understanding the distinction between deemed special educational provision arising from the social care element, in respect of which the FTT would have jurisdiction, and that which falls as the responsibility of the statutory social care provider. Here the local authority appears to have been prepared to make provision for social care during the day through the services of Trish regardless as to whether or not Fix n'Kiks was considered to be a suitable placement, seemingly making direct payments under CA 2014. In other words, there would have been direct payments even if there had been no aspect of deemed special educational provision in relation to the daytime social care.
- However, when the Claimant pursued her appeal to the FTT in relation to the daytime placement, in my judgment the Defendant did not act unlawfully in respect of any other aspect of the social care provision/ special educational provision. It was entirely appropriate that any final assessment and care plan awaited the outcome of the tribunal proceedings, because the Defendant was bound to defer to the tribunal decision. Whilst allowance was made for the daytime care costs, even if the local authority did not accept that there was any appropriate educational element involved, certainly the cost of the placement itself was not one which they were bound to meet until the FTT determined that it was an appropriate placement (or even that the Claimant should be entitled to an EHC plan).
- I do not agree with Mr Lawson that there was any obligation on the local authority to pay the fee for the placement at Fix n'Kiks either on the basis that Tricia's costs had been paid under the CA 2014 or that it was illogical to have a separate jurisdictional basis for payment of the placement costs. Further, his submission that Fix n'Kiks was a placement rather than educational provision, and that the local authority should have taken account of the fact that there may be occasional and incidental educational aspects to social care provision, in my judgment ignores the separate and parallel regime that is provided for under CFA 2014. It is apparent that Fix n'Kiks and the care and support which CP received at the placement was intended by her parents to be the special educational provision. If the local authority disagreed with this approach, it was as much their entitlement, as the right of the Claimant to have the matter resolved by an independent tribunal. To require the local authority to make such an assessment purely under the Care Act, and to expose itself to legal challenge if a party does not agree with that assessment, in my judgment imposes an unreasonable burden, when there is an obvious jurisdiction with the decision-making process available in relation to special educational provision under CFA 2014.
The right to education and a potential breach of A2P1.
- It is said that the Claimant was denied a right to education as understood by the European jurisprudence in relation to her convention rights. Such a claim depends upon establishing an unlawful act on the part of the member state to comply with its Convention obligations. I have found no such unlawful act. The decision in respect of the provision of an EHC and the identification of Fix n'Kiks as a suitable placement lay in the hands of the FTT. Accordingly, even if the local authority had acted unlawfully, just satisfaction was afforded by the process and this would be a complete answer to any such claim.
- However, I consider briefly the implication of A2P1 in such circumstances on the assumption that I may be wrong in relation to the lawfulness of the approach of the Defendant to its responsibilities under CFA 2014. In my judgment, the reality of the situation in this case cannot be ignored. My understanding of the evidence is that CP was already attending Disability Active / Fix n'Kiks at a time that her parents were seeking to have an assessment made of special educational needs under CFA 2014 and an EHC plan put in place. At an early stage provision had been made for the support worker (Trish) who had been taking her to the placement and providing the same level of input (which undoubtedly includes an "educational" component as well as social care) and this position has continued to date. The dispute has been about the cost of the placement and the local authority's unwillingness to accept that it was appropriate and suitable. I have noted a factual dispute as to whether or not there were either other placements offered or rejected, and again this is not a matter upon which I am going to make any determination. However, it is not disputed that the local authority had other facilities and placements available, which in my judgment would be a factor relevant to the question of any breach of A2P1 rights and corresponding duties.
- In the circumstances, and noting that the legal consensus that the duty is "not an absolute one" (Claimant) or a "weak one" (Defendant), it seems to me that a failure or unwillingness to meet the cost of a particular placement, or perhaps at a more fundamental level to disagree that there were special educational needs justifying that cost, does not amount to a deprivation of a right to education as understood by the convention right. The dictum of Lord Bingham in the Lord Grey case, in my judgment, provides a compelling context to the effect that there was no guarantee or entitlement to education by a particular institution. This case falls significantly short of a denial of access to available services identified in the case of R (E) v Islington relied upon by Mr Lawson, or the refusal to admit to a particular school which led to the establishment of a breach of A2 P1 in the case of Timishev.
Damages and/or restitution
- I have not identified any unlawfulness in relation to the Defendant's decision-making process, assessments or compliance with its duties save in the very limited respect referred to in paragraph 94 above (the personal budget in previous plans). Accordingly, for the most part this question does not arise. In relation to the failure to identify a personal budget, it is difficult to see how any question of restitution is relevant, in any event, because of the breach of duty here related to a lack of clarity/transparency rather than a shortfall in provision.
- Again, I consider briefly the question of a claim in restitution on the hypothetical basis that I am wrong on the issue of unlawfulness. In this respect, I do not regard the case of Richards as providing persuasive authority that monetary/damages claims are capable of being pursued for public law breaches. The success of the Claimant in that case was limited to avoiding a strike out, and it is noted that it was a private law claim in any event, although a public law duty was involved (s117). The facts were somewhat unusual, and the circumstances specific to the case. It seems to me that Mr Lawson acknowledges that any monetary claim would have to be based in restitution, as opposed to pure damages representing losses, in other words relying on the principle of unjust enrichment. The "unjust" element arises from either the local authority's error in the way the assessment was approached, or unconscionability, perhaps on the basis that the local authority subsequently agreed the entitlement to an education at Fix n'Kiks (albeit after tribunal involvement). However, he has not been able to point to any authority which supports his proposition.
- Public authorities which are found to be in error in the way in which they administer funds under statutory duties and responsibilities do not, in my judgment, readily fall into the category of those who achieve unjust or unfair advantage from monies which should have been allocated to a Claimant, but which were not. Invariably there will be mistakes or failures to make payment which are capable of challenge by review. In many instances, if the failure is corrected, provision can be made for retrospective payment of entitlement. Otherwise, the reality is that resources are merely reallocated perhaps to another individual or group of individuals who have a statutory entitlement. In my judgment, it is illogical that a public authority in such circumstances should be regarded as "unjustly enriched" and it would be contrary to public policy that such a claim is sustainable.
- In paragraph 58 I identified the issues. The discussion section above addresses those issues in detail on the basis of the grounds of challenge pursued by the Claimant. I can summarise my conclusions as follows:
"(a) Is a local authority acting unlawfully and/or in such a way that is challengeable by judicial review where it does not address the social care aspect of special educational provision, or the cost of any special educational needs placement when there is an outstanding appeal under section 51 of the Children and Families Act 2014 in relation to those matters?"
- In my judgment, it is not. See paragraphs 105 to 109 above. When there is an appeal process the responsibility for the decision in relation to both matters lies with the tribunal, and there is no obligation on the local authority until the tribunal determination is made.
"(b) Has the Defendant lawfully discharged its duties under the Care Act 2014 and the Children and Families Act 2014 towards the Claimant in respect of the 2016 and 2017 care plans (excluding the revised plan)?"
- The Defendant has acted lawfully, save in the limited respect referred to in paragraph 94 above.
"(c) If it has not, does this entitle the Claimant to pursue a challenge by way of judicial review, bearing in mind that there is no present objection to the care plan/direct payment, and no issue going forward which the court is being asked to determine?"
- Even where the Defendant has acted unlawfully in that limited respect, this matter is not capable of challenge for the reasons stated in paragraph 95 above.
"(d) Has there been a breach of A2P1?"
- There has not, for the reasons stated in paragraphs 110 to 112 above.
"(e) If the Claimant is entitled to declaratory relief in relation to any alleged unlawfulness, does this give rise a claim to monetary compensation by restitution or otherwise?"
- She is not, for the reasons stated in paragraphs 113 to 115 above.
- This claim for judicial review accordingly fails. I invite the parties to agree the terms of any final orders, including the incidence of costs prior to the handing down of this judgment.
Note 1 which used to be known as a statement of special educational needs [Back]
Note 2 I will consider this argument in more detail later in my judgement, because it is central to the local authority's case [Back]
Note 3 Again, this is an argument which I will set out when addressing the present issues [Back]
Note 4 (My emphasis) [Back]
Note 5 Whilst the subjective judgment of the housing authority in the implementation of a social welfare housing assistance scheme was susceptible to judicial review, any failure could not give rise to additional private law rights sounding in damages. [Back]
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