Neutral Citation Number: [2009] EWHC 1499 (Admin)

CO/3742/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 3rd June 2009
 
B e f o r e: 

MR JUSTICE HOLMAN
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Between: 
THE QUEEN ON THE APPLICATION OF 
S (a child) 
(by his mother and litigation friend) 
Claimant

v 

PLYMOUTH CITY COUNCIL 
Defendant 
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Ian Wise (instructed by Devon Law Centre) appeared on behalf of the Claimant
David Carter (instructed by Plymouth City Council) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE HOLMAN:  This is an anxious and difficult case which concerns a needy child in Plymouth.  The situation concerning and surrounding him is plainly a long‑term and ongoing one.  It is plain that his mother and Plymouth City Council will need to engage with each other and work together for many years to come.  It thus does seem to me particularly regrettable and unfortunate that the focus of consideration of the claimant's needs has shifted temporarily here to London, and that his mother, her solicitor, the lead social worker and local authority solicitor have all had to travel to London for, as it seems to me, an interesting, but ultimately somewhat sterile, debate today, when clearly what they need to be doing is engaging more closely and constructively together back in Plymouth.
2.	The essential facts and background are that a mother ("the mother") has two sons.  The elder, S, is the present claimant.  He is now aged 11.  He was diagnosed some time ago as being autistic.  The mother's younger son is aged 6 and, as I understand it, does not share any of the behavioural or other difficulties of his elder brother, associated with his autism.
3.	I do not think it is necessary in this short ex tempore judgment, given late on the day of the hearing, for me to elaborate much as to the difficulties of S, for they are scarcely in dispute in these proceedings.
4.	He is able to attend school, but is prone to outbursts of very considerable aggression.  It is plain that caring for him places very considerable demands upon his mother.  It is plain, too, that it cannot be at all easy for the younger brother, living in, and being brought up in, a two‑bedroomed flat, in which his elder brother, with these difficulties, lives.
5.	It is not at all in issue that S is a child who falls within the scope of section 17 of the Children Act 1989, that is to say, he is a child, he lives within the area of Plymouth City Council and he is a child in need.  Plymouth are therefore under the general duty pursuant to that section to safeguard and promote his welfare and to promote his upbringing within his family by providing a range and level of services appropriate to his needs.  
6.	By section 17(6):
"The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."
7.	Section 17 itself is enacted in very general terms.  However, in 2000 the Department of Health published a document entitled "Framework for the assessment of children in need and their families".  The preface to that document, on page viii of the current edition, makes plain that it "is issued under section 7 of the Local Authority Social Services Act 1970, which requires local authorities in their social services functions to act under the general guidance of the Secretary of State.  As such this document does not have the full force of statute, but should be complied with unless local circumstances indicate exceptional reasons which justify a variation".
8.	Plymouth City Council accept that S is a child within the scope of section 17 and, accordingly, that they are under the legal duties elaborated in the framework document, by virtue of section 7 of the 1970 Act, and that statement in the preface to the document. 
9.	The framework document is itself long and detailed.  It describes how, when faced with a child in need in their area, a local authority must undertake a process of assessment, planning and action (see chapter 3.1).  That process must include a core assessment, which is defined in chapter 3.11 as:
"... an in‑depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context."
10.	At chapter 4.1, and very importantly to this case, the document continues:
"The Guidance has emphasised that assessment is not an end in itself but a process which will lead to an improvement in the wellbeing or outcomes for a child or young person.  The conclusion of an assessment should result in: 
• an analysis of the needs of the child and the parenting capacity to respond appropriately to those needs within their family context;
• identification of whether and, if so, where intervention will be required to secure the wellbeing of the child or young person;
• a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review."
I particularly emphasise the requirement by those words for "a realistic plan of action".
11.	At chapter 4.32 the framework document expressly deals with "Plans for children in need" and, at figure 7, under paragraph 4.36, identifies "Areas in which clarity is required in childcare planning".  I will not read out the following bullet points in full.  Suffice to say that they indicate that considerable specificity is required in order that the plan should have appropriate clarity and, overall, be "a realistic plan of action". 
12.	The claimant's mother, no doubt acting on advice from her solicitors, felt as long ago as April 2008 that the defendant local authority were not discharging their duties under section 17 and the framework document to come up with a detailed and realistic plan to meet the needs of S.  So they commenced the present application for judicial review.  
13.	There have been a number of interlocutory orders and, on 18th July 2008, Underhill J ordered that there be a rolled‑up hearing, both of the question of permission and of the substantive judicial review, if permission was granted.
14.	There seem to have been a number of occasions between then and now when those matters almost reached the starting gate, but were adjourned for further steps to be taken.  Thus it has come about that it is only today, comfortably over a year after the proceedings were issued, that I am considering the substantive issues in this claim. 
15.	During that year there has undoubtedly been very considerable progress and developments.  In particular, advice was taken in October 2008 from a child and adolescent psychiatrist, Dr Sara Walker, whose report, dated 22nd October 2008, is now at bundle pages 294(17) and (18).  Informed in part by that advice, Plymouth City Council, through their social worker, Ms Amy Thornley, produced a very lengthy core assessment dated 28th November 2008.  That assessment is now at bundle pages 255(61)‑(89) and extends, therefore, to almost 30 pages.  It contains within it considerable analysis of the history and wellbeing of S, and of his needs.  In tandem with that core assessment, Ms Thornley also prepared a child in need plan, which also seems to have been produced on or about 28th November 2008, and is now at bundle pages 255(32)‑(60).  Since then, the position and proposals of Plymouth City Council have been further elaborated or updated by two statements made by Ms Thornley dated 5th and 8th May 2009. 
16.	It is plainly less than desirable that a court, or a mother, or any other person with a proper interest in the needs of, and plans for, a child, should have to identify or pick that plan from a range of different documents.  Nevertheless, it seems to me quite clear (and Mr Ian Wise, who appears on behalf of the claimant, and, realistically, his mother, does not suggest otherwise) that one needs to consider the position of Plymouth as it is today.  On behalf of the claimant, Mr Wise very strongly submits that the plans simply fail to be "a realistic plan of action (including services to be provided)" in two important respects: one relates to respite care, the other relates to accommodation needs. 
17.	The mother has certain difficulties of her own with her mental wellbeing, and plainly finds the burden of caring continuously for the needs and demands of S very great.  It is indeed accepted by the defendant local authority that there is a need for some respite care.  In her report dated 22nd October 2008, Dr Sara Walker has put it thus:
"Ideally it would be in [S's] best interests to have respite with a known and trusted adult within [his mother's] circle of family and friends.  If this is not possible, respite with a specialist foster carer or within a specialist residential facility ought to be considered.  Some children with autism find respite care extremely difficult to manage, as they need consistency, routine and predictability in their care and find it very distressing to separate from their main carers.  Respite outside the family may be something that [S] can accept and benefit from, but equally he may react badly to such an arrangement.  As [the mother] remains emphatic in her request for regular respite, a suitable provision should be researched and, with adequate preparation for [S], attempted on a trial basis..."
18.	Clearly, therefore, that is a strong recommendation by Dr Walker of the need for respite care, including contemplating specialist residential respite care, but coupled with the cautionary warning that S may react badly to it, and that any proposal should first be attempted on a trial basis.
19.	The proposals of Plymouth with regard to respite care have evolved slowly, but are now expressed in paragraphs 9‑16 of the most recent statement of Ms Thornley, dated 8th May 2009.  She says there:
"9. [The mother] has told me that she would like to have overnight respite care once a month.
10. I decided that the claimant needed 8 hours' respite care each week, having regard to his needs and those of his mother.  I was particularly concerned that the claimant had not experienced respite outside his immediate family and that it is very important that he experiences a gradual form of respite to help him to adjust his routine and build trusting relationships with his respite carer(s).
11. Direct payments offer flexible hours that are suited to the client.  These hours could be used in times of crisis and would offer [the mother] additional support and relief in crisis situations.
12. The weekly hours can be split... or aggregated...  By aggregating the hours, [the mother] could have respite for one overnight stay every fortnight, eg 5.00 pm on a Saturday to 9.00 am on the following Sunday.  If this respite provision is successful, the defendants will consider increasing the number of hours, for instance to enable [the mother] to have respite for a whole weekend."
20.	At paragraph 15 Ms Thornley said:
   "I am willing to facilitate finding respite carers for the claimant by assisting [the mother] to do so or by arranging for A4E to do so."
21.	That statement by Ms Thornley is of course still very recent.  It is to be noted that it does not contain within it, or indeed anywhere else in the written documents, any indication of the actual sum or sums that the local authority are prepared to offer and pay.  
22.	At court today, Mr David Carter, on behalf of the defendant, has said that what Plymouth would in fact be willing to offer is £7 per hour for 8 hours per week, that is £56 per week, although, as Ms Thornley had said in paragraph 12 of her statement, there could be some aggregation so that weekly payments were saved up and used once a fortnight, or even once a month. 
23.	On behalf of the mother, Mr Wise has made very plain today that the mother finds it frankly beyond her personal capabilities to go out and identify and arrange suitable respite carers; nor does she feel able to take responsibility for funding them simply on the basis of receipt of some weekly sum from the local authority.  She stresses very strongly her subjective feeling that what she and S need is the availability of a suitable, caring foster parent or family who can take care of S for a whole weekend every month.
24.	On behalf of Plymouth, Mr Carter says that the position of the mother has to some extent been a shifting one and has not been made fully clear before today.  This reinforces the comment that I made at the outset of this judgment, that it seems to me unfortunate that the relevant people are here in London today instead of communicating on the same wavelength back in Plymouth.  At all events, I am persuaded by Mr Wise that at the moment even the most recent statement of Ms Thornley does not amount to "a realistic plan of action (including services to be provided)" for respite care in relation to S.  It is patent that he will need very carefully assessed, appropriate respite carers to be identified for him.
25.	Frankly, for the local authority simply to say that they will pay £7 an hour for 8 hours a week is putting the cart before the horse.  It is going to be vital to go out very actively into the market, and into the local community, and actually identify a suitable person or persons to undertake this vital work.  At that point, it will be necessary to have some very detailed discussion, both with the identified person and with the mother, as to the frequency and duration of periods of respite care.  At that point, it will be necessary to have some detailed discussion with the proposed carer as to their reasonable rate of charge.  I have to say, with all due respect to Plymouth, but sympathetic to the difficulties that they perhaps have in fully engaging on the same wavelength with the mother, that simply to say in the abstract that they will provide £7 an hour for 8 hours a week (or with aggregation fortnightly) does not add up to "a realistic plan of action (including services to be provided)" for respite care for this very needy child.
26.	On that limb of the application, therefore, it seems to me that I should formally grant permission for this judicial review to proceed to the extent necessary for me to make a declaration that the assessments made by the local authority to date in relation to S's needs for respite care do not yet provide a realistic plan of action for him.
27.	I turn from respite care to accommodation.  At the moment the mother is a secure tenant in a two‑bedroomed council flat in the Ernesettle area to the northwest of Plymouth, close to the Tamar Bridge.  It is fully accepted by both the social services and the housing departments of Plymouth City Council that this family, including S within it, needs three‑bedroomed accommodation.  Patently each of the mother, S and his younger brother have a strong need for separate bedrooms. 
28.	Until recently the mother has sought, and hoped, that her needs for larger accommodation could be provided by the housing department under the provisions of the Housing Act 1996.  She has applied for a transfer of tenancy.  Ms Thornley states in her most recent witness statement that during May the mother's priority has been re‑assessed from Band C to Band B.  As I understand it, the allocation scheme, as operated by Plymouth City Council housing department, requires applicants for transfer to bid on a weekly basis for properties that are advertised as becoming available.  So far, the mother has not seen advertised a property which fully satisfies her needs, both as to size, type, quality and location.  In particular, she desires strongly to remain in, or close to, the Ernesettle area of Plymouth, where a number of her family and friends live, who are a considerable support to her. 
29.	The alternative of renting in the private market has recently been considered, both by the local authority social services department and by the mother herself.  There are, however, potentially very considerable drawbacks in that from the perspective of the mother.  First, if she were to rent privately, she would vacate her current council flat and could no longer seek a tenancy transfer.  Second, she would lose her current banding and place in the list, and effectively would have to start all over again.  Third, if she rents in the private market, she would not have the same degree of security that she currently enjoys as a secure tenant of a council house. 
30.	It seems to me fairly clear that Plymouth continue to feel that the wiser outcome for the mother and S would be to continue actively to pursue the application for a transfer within the Housing Act scheme.  What is crystal clear is that the housing department cannot lawfully circumvent that scheme and give some extra priority to the mother.  Section 167(8) of the Housing Act 1996 is quite clear:
"A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme."
31.	It has not been demonstrated to me by Mr Wise, on behalf of the mother, that the housing department of Plymouth City Council have in any way acted unlawfully in the manner in which they have so far dealt with her position under their allocation scheme.  It seems to me, therefore, that there is currently no more detailed or realistic plan of action that Plymouth City Council can make in relation to the provision of council housing than simply for the mother to go on applying for a transfer and making her own decision, as and when different properties become available, as to what compromises she is willing to make. 
32.	The position of the social services department of the local authority in relation to assistance with private rented accommodation is described in paragraphs 4‑8 of the witness statement of Ms Thornley dated 8th May 2009.  She says there:
"5. I have not actively pursued the option of assisting [the mother] to secure three‑bedroom accommodation in the private rented sector because — until very recently — she has always said that she did not wish do move into private sector accommodation.  It was only at the court hearing on 6th May 2009 that the claimant's legal representatives indicated that [the mother] would be willing to consider moving to the private sector on a temporary basis (pending rehousing by the defendant's housing department) and, on 7th May, [the mother] confirmed this to me.
6.  The defendants are willing to assist [the mother] to secure three‑bedroom accommodation in the private rented sector to the extent that they will provide financial assistance by giving her money for a deposit on a property and 1 month's rent in advance.  [The mother] will be entitled to housing benefit to assist her with the rent, but if her housing benefit is less than the contractual rent, the defendants will not fund the shortfall in rent on a continuing basis, because it is likely that she will be re‑housed by the housing department, provided she actively pursues her transfer application, particularly if bids for flats and maisonettes and properties in a greater number of areas in Plymouth than she has currently considered."
33.	Ms Thornley goes on to make plain, however, that she has been advised by the housing department that if the mother were to move into private sector accommodation, then her application for a transfer would lapse and she would have to start from scratch, making a fresh application for housing.
34.	Initially it seemed to me that what Ms Thornley says in those paragraphs goes as far as Plymouth City Council could reasonably be expected to go.  They plainly feel that the mother ought soon to be able to obtain adequate housing through the housing department and, accordingly, have limited their offer of assistance to S to providing a deposit and 1 month's rent in advance.  They are not willing to bridge any gap between housing benefit and actual rent, because they take the view that the mother can adequately re‑house herself and her children in council housing.  But I have been persuaded by Mr Wise that what Ms Thornley says in those paragraphs does not, in the end, amount to a realistic plan of action, including services to be provided.  It does not engage with specifics at all.  It does not identify any sample property, or properties, that Plymouth City Council put forward as appropriate for the family in the private market.  It does not, accordingly, engage with the actual cost of renting such a property, nor the difference between that cost and the housing benefit to which the mother is, or may be, entitled.  In other words, it is long on principle but very short on detail.
35.	It does seem to me that the local authority have got to be much more proactive in working together with the mother to see exactly what might be available in the private sector, what it would cost, the extent of housing benefit that the mother can obtain towards that cost and the extent, if any, to which Plymouth City Council ought to, and is willing to, bridge any difference.  In short, the alternative of renting in the private sector with financial help from Plymouth City Council needs a great deal more exploration than has so far been done.  It is only when Plymouth City Council, working no doubt in co‑operation with the mother, have come up with a fully‑costed and detailed alternative for renting in the private sector that they can be said to have actually produced a realistic plan of action in relation to accommodation.  It seems to me, therefore, that it is appropriate that I should make a declaration in relation to the accommodation needs of S as well. 
36.	I could alternatively have adjourned this application yet again today to enable Plymouth to research these matters further, but it seems to me high time that the present claim for judicial review is brought to a complete end.  For those reasons, I propose to make an order in the following terms.  It is ordered and declared that: 
1.  Permission is granted to apply for judicial review to the extent necessary to seek a declaration in the terms of paragraph 2 below.
2.  It is declared that the assessments made by the defendants to date (as supplemented by the statements of Ms Amy Thornley dated 5th and 8th May 2009) as to the needs of the claimant do not yet provide a realistic plan of action as required by chapter 4.1 of the framework for the assessment of children in need and their families, with regard to: 
(i) the claimant's needs for respite care; and 
(ii) the claimant's accommodation needs.
3.  Save as aforesaid, the claim for judicial review is dismissed. 
37.	I hope that by this judgment I have given sufficient guidance and indication as to what Plymouth need to do now so that they can come up with a proper, complete and realistic plan of action in relation to both respite care and accommodation needs.  I earnestly beseech the parties to move completely away now from the forum of courts and litigation and focus entirely on sensible and realistic ways of meeting the needs of S.
38.	Are there any further applications? 
39.	MR WISE:  Yes, my Lord.  May I thank your Lordship for that judgment, and particularly for resisting the temptation to adjourn yet again, because, as your Lordship said, it was a case where it was high time that the matter was brought to an end so the parties can move on.
40.	MR JUSTICE HOLMAN:  Well, adjournment was not something that I was at all tempted to do, except I might have finished the day rather earlier.
41.	MR WISE:  Yes.  We were very anxious to avoid that.  As your Lordship will have seen, the matter has been adjourned on a number of occasions.  
42.	That merely leaves the question of costs, my Lord, as your Lordship anticipated before giving judgment.  We have succeeded, and we say that we should, accordingly, have our costs borne by the defendant.  Your Lordship has ‑‑
43.	MR JUSTICE HOLMAN:  Are you about to elaborate your costs application or are you turning to some other point? 
44.	MR WISE:  I was elaborating the costs application.
45.	MR JUSTICE HOLMAN:  Do not elaborate until we hear whether or not it is opposed.  I do not really see how you can oppose it, Mr Carter.
46.	MR CARTER:  What I would say is this, my Lord, certainly the basis for your decision on accommodation has really resulted from a very recent change in the position of the claimant's mother.  We had not actively considered accommodation in the private sector because she said she would not consider it.
47.	MR JUSTICE HOLMAN:  That is accommodation, but you have moved a long way under the stimulus of these proceedings since April 2008 and I am afraid you are going to have to move further now.  I deeply regret it, but I cannot really see how you can resist costs.  In the first place, the proceedings have already brought about a lot of movement, there is a very detailed plan which you did produce in November and, secondly, I have held, rightly or wrongly, that you have not yet done enough.
48.	MR CARTER:  That is correct.  You have also dismissed the claim for judicial review.
49.	MR JUSTICE HOLMAN:  Well, no, I have not dismissed it; I have said, save as aforesaid, it is dismissed, but I have made those declarations.
50.	MR CARTER:  That is correct, but, first in relation to accommodation, there is no doubt that up until the last hearing the claimant had said that she would not consider private sector accommodation.  So it would not have been a sensible use of the Council's resources to have pursued this when she was saying she would not move into it.  It is a very recent development.  There really has not been any time to go into it in any great detail.
51.	In relation to respite care, it is right, of course, that you found against the Council on this, but in my submission the issue of respite care is one in which again the claimant's mother gave an indication that she was willing to co‑operate with the local authority, but then did not.  So in some respects they had been led to believe that this was acceptable to her, save for the amount of time, but now you have found that in effect the authority acted unlawfully.  It is certainly during the substantial part that the claimant's mother gave an indication that she was happy to go along with the arrangements that we put in place.
52.	MR JUSTICE HOLMAN:  I have some sympathy with Plymouth, because I do think there has been something of a shifting target here, but in the end I think that these proceedings have stimulated action by the local authority.  More action is required.  The costs, I am afraid, have to be borne somewhere, and I think you will just have to pay them.  I am very, very sorry.  I deeply regret — I say it for the last time — that your are here in London at all, and I deeply regret that, as well as everything else, Plymouth are now going to have to find a not insignificant amount of money.  It would be so much better if it could have been spent directly on the needs of S, but the system does not work like that.  I am sorry.  I am going to order that the defendants must pay the costs of the claimant, of and incidental to the claim for judicial review, to be assessed if not agreed.  
53.	Do you have any other applications, Mr Wise, or is that now comprehensive? 
54.	MR WISE:  Merely an order for detailed assessment of public funding in case it becomes necessary, my Lord.
55.	MR JUSTICE HOLMAN:  Right, there be detailed assessment of the publicly funded costs of the claimant.  Thank you.  
56.	Do you have any other applications, Mr Carter? 
57.	MR CARTER:  My Lord, just one point about your judgment.  I think you will probably, if it ever gets printed ‑‑ 
58.	MR JUSTICE HOLMAN:  It will get transcribed, but I cannot imagine it will ever be reported, if that is what you mean.
59.	MR CARTER:  The only thing I would say is there was a sentence you started that you never finished.  When you were talking about the question of the plan, you started a sentence "nevertheless it seems to me (and Mr Ian Wise for the defendant does not suggest otherwise)".
60.	MR JUSTICE HOLMAN:  I did finish that sentence.  I know the point that you are referring to and, at that point, I got a little confused in my mind about where I had put some brackets and this is what deflected me, but if ever this judgment sees the light of day, a transcript will have to be approved by me and I will ensure that it has grammatical sentences in that part.  Thank you.  I was conscious of that as I went along.  
61.	All right whose documents are these?  These are the court's documents, I suppose.  (Pause).  
62.	It is a long journey back to Plymouth for all of you.  I really am sorry that you have had to come so far at such expense and so wearily.  I really do beseech that when you get back to Plymouth the social worker, on the one hand, and the mother, on the other hand, maybe assisted by solicitors, really engage and really do come up with an action plan to ensure that S is appropriately housed as soon as he can be and that you get the benefit of the respite care, but this does require negotiation and I do feel that there have been times when you have not, wherever the fault lies between the two of you, been quite directing yourselves along the same lines and you have gone along like that.  So could we avoid that from now on please?  Thank you so much for coming everybody.