BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> S, R (on the application of) v Leicester City Council [2004] EWHC 533 (Admin) (29 March 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/533.html Cite as: [2004] EWHC 533 (Admin) |
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
THE QUEEN on the application of S by her mother and next friend SANDRA BRANCH |
Claimant |
|
and - |
||
LEICESTER CITY COUNCIL |
Defendant |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Philip Coppel (instructed by Legal Services, Leicester City Council) for the Defendant
____________________
Crown Copyright ©
Mr Justice Leveson :
The Facts
"I have always maintained the view that it is right and proper for young handicapped people like [S] to leave home in a structured way before they were forced to – i.e. at the death of parents or when parents become too infirm to cope. Indeed, this is a natural progression for all young people whether handicapped or not. With this in mind, I have been looking for a suitable place for [S] where I felt she would have a home for life but where she could also grow and develop to her full potential....
I found such a place - Ashleigh College in Newcastle-upon-Tyne - where students live and receive training and then move on to homes for four in the community, but still with a carer in residence..."
"[S] is going to college in Newcastle upon Tyne. The initial placement is for 2 years but an extension to the course could be applied for at end of that period. It is hoped that [S] will progress towards semi-independent living closely linked to the college."
Although the County Council had not assessed the need for such an educational placement, it nevertheless agreed to fund the accommodation element of the package.
1. That a decision was taken by Social Services to move [S] from her current home without a proper reassessment of her needs.
2. That the decision to move [S] from her home was based on cost of the current accommodation.
3. That proper account was not taken of the traumatic effect on [S] as a person with autism of a move from her present accommodation.
4. That the reassessment of [S's] needs did not take into account the views of her consultant, or the particular needs and experiences of [S] as a person with autism.
5. That Social Services are no longer working with [S's mother] in a structured way to find appropriate accommodation for [S].
Another complaint (about the attitude of Social Services to S's mother said to lead them to make suggestions for accommodation for S not appropriate for her needs) was not upheld.
"At the age of 30, continued full-time classroom learning is not appropriate for [S]. She needs a wider, more practically based timetable consolidating her academic learning into life skills for domestic, leisure and voluntary work. She works best in groups no larger than five to one … She is unlikely to achieve independent living, but can maintain and build on her skill base with support within a residential setting."
"[S] has medium dependency needs. Her skill needs are good, but the nature of her disability is such that she is unable to use her skills without the constant prompting and motivating support of staff."
[S] is a vulnerable person …
[S] needs:
- Residential accommodation in a small group with 24 hour staff support (sleeping in is adequate).
- Increased opportunities for use of domestic skills.
- A range of community based activities to build on current practical skills and leisure interests. These need to be within small groups and initial staff support will be required to assist [S] to integrate and advise activity leaders on [S's] specific needs.
- Staff support to access community resources on an individual basis
- Risk assessment for independent travel.
- Consistent support to provide the reassurance and guidance to maintain good mental health.
- To maintain contact with family and friends around the country."
"against the present placement [i.e. Lorne Terrace] in a privately owned institution where the local specialist NHS and social care services assume no responsibility for [S], and in a locality where there are no family ties, it is clear that long term stability and life long planning will be best met in Leicester."
"The intended purpose of the parties in utilising the complaints procedure was to invoke a procedure that would be able to undertake a primary fact finding exercise as to the questions of suitability."
1. Lorne Terrace was suitable accommodation;
2. Sycamore Court in Leicester was not suitable accommodation; and
3. the Council did not consider Lorne Terrace was unsuitable until it was drawn to their attention that the Choice of Accommodation directions applied.
"I have to take the view here that Lorne Terrace has never been suitable in the sense that it could never be adequately monitored by SSD… Lorne Terrace was accepted as suitable at the time of the 1999 Assessment. Monitoring is not mentioned. It is still able to meet the needs in that Assessment. Dr Brugha has said that Lorne Terrace is 'fine at present, a good place'… In terms of [S's] care and expected development … I must conclude that Lorne Terrace is generally suitable.
It is not suitable in terms of the provision of monitoring… I also believe that suitability is not a fixed thing. There are many instances when the once suitable becomes unsuitable, or their unsuitability is made evident by something else which is suitable. "
"… the Panel determined that whilst they were not minded to dispute the facts as found by the Independent Investigator they were entitled to draw their own conclusions from those facts….
[Mr Durrant] said that it was impossible to monitor a placement adequately from 200 miles away…. [S] could not access the specialist NHS Services to which she was entitled and currently such services were provided within the fee paid for the placement at Lorne Terrace which was effectively a payment for private health care which the Department was not entitled to provide. Mr Durrant indicated that a major move such as this did not need a full re-assessment as every piece of information about [S] known to the Department but rather a review of the provision of services to her.
Whilst the Panel accepted [S's solicitor's] assertion that suitability of preferred accommodation was not an open question but related to [S's] needs as assessed by the Department the Panel felt these included by necessary implication [S's] need for specialist NHS Services now and in the future and the need to ensure regular monitoring by the Department to ensure that [S's] needs are being met. The Panel felt that the lack of access to the former and the inability to perform the latter adequately were such as to make Lorne Terrace unsuitable and that [S's] long term interests required a move back to Leicester notwithstanding your strong opinions and the dedication that you have shown to safeguarding your daughter's interests over the years."
1. if the accommodation preferred by S appears to the authority to be suitable in relation to the her needs as assessed by the authority, the authority is obliged to maintain or make available that accommodation;
2. a decision to change a placement can only lawfully be made following a material change of circumstances as considered through a lawful reassessment of community care needs and the provision to meet those needs and since the last assessment was made in June 1999, there has been no such material change;
3. the Stage III panel had to reach its own conclusion on the factual and other issues involved, unconstrained by the findings made by the stage 2 investigator; in any event, Mr Twigg's conclusions both as to monitoring and NHS provision are erroneous which errors equally undermine the Stage III panel;
4. the decision is perverse, failed to give effect to the Choice of Accommodation Directions and represents an interference with S's right to respect for her home under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
The Council submit that none of these complaints bear analysis and that, in reality, this challenge is simply to the merits of the decision.
The Legal Framework
"Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of such services, the authority ... shall carry out an assessment of his needs for those services; and ... having regard to the results of that assessment shall then decide whether his needs call for the provision by them of any such services."
"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-
(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them....
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided....
(4) Subject to the provisions of section 26 of this Act accommodation provided by a local authority … shall be provided in premises managed by the authority or, … in such premises managed by another local authority as may be agreed between the two authorities and on such terms … as may be so agreed."
"Local authorities to provide preferred accommodation
2. Where a local authority have assessed a person under section 47 of the National Health Service and Community Care Act 1990 (assessment) and have decided that accommodation should be provided pursuant to section 21 of the National Assistance Act 1948 (provision of residential accommodation), the local authority shall, subject to paragraph 3 of these Directions, make arrangements for accommodation pursuant to section 21 for that person at the place of his choice within England and Wales (in these Directions called "preferred accommodation") if he has indicated that he wishes to be accommodated in preferred accommodation.
Conditions for provision of preferred accommodation
3. …the local authority shall only be required to make or continue to make arrangements for a person to be accommodated in his preferred accommodation if
(a) the preferred accommodation appears to the authority to be suitable in relation to his needs as assessed by them
(b) the cost of making arrangements for him at his preferred accommodation would not require the authority to pay more than they would usually expect to pay having regard to his assessed needs;
(c) the preferred accommodation is available;
(d) the persons in charge of the preferred accommodation provide it subject to the authority's usual terms and conditions, having regard to the nature of the accommodation, for providing accommodation for such a person under Part III.
"Local Authorities shall, in the exercise of their social service functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
"13. ... [O]nce the authority has indicated that a service should be provided to meet an individual's needs and the authority is under a legal obligation to provide it or arrange for its provision then the service must be provided ..."
"31. ... The care plans of all users should be subject to regular review. For frail people in the community, frequent reviews and adjustments of their care plans are likely to be needed. Before any changes in services are made for existing users, they should be re-assessed. In those cases where assessments have been undertaken, particularly under section 2(1) of the [1970 Act], authorities must satisfy themselves, before any reduction in service provision takes place, that the user does not have a continuing need for it. So long as there is a continuing need, a service must be provided although, following review, it is possible that an assessed need might be met in a different way. "
Analysis
The absence of recent Assessment
The Approach of the Panel
Article 8(1) of the ECHR
Concluding Remarks
MR JUSTICE LEVESON: For the reasons set out in the judgment which I now hand down, and in the light of that judgment by consent, I order that the defendant's decision of 20th November 2002 be quashed; that the defendant pay the claimant's costs to be assessed if not agreed; and for the claimant's costs to be assessed in the courts with the Community Legal Service Regulations 2000.