P (by his mother and litigation friend MP) v London Borough of Hackney [2007] EWHC 1365 (Admin)

P was a 12 year old boy with autism living with his mother MP who was his litigation friend in this application for judicial review.  The proceedings challenged the adequacy of various assessments made by his local authority LB Hackney.  Central to this dispute was the issue of whether P should be placed in a residential school (as MP wished) or whether he should continue at the H school (as LB Hackney’s Learning Trust believed was appropriate) MP appealed against that feature of the Statement to the Special Educational Needs Tribunal (SENDIST) SENDIST allowed the appeal and ordered that a residential school should be substituted in part 4 of the Statement.  The Learning Trust appealed to the High Court which set aside the decision of the Tribunal and allowed the appeal.

In these proceedings the claimants challenged what it says were failures by LB Hackney in relation to the following

o failure to adequately assess P’s needs
o failure to complete an adequate assessment of MP as a carer
o failure to complete an adequate care plan
o failure to provide or make arrangements for services to the claimant as a child in need and a disabled child under the Children Act 1989 s17 and/or services to MP as a carer

A central issue in the SENDIST appeal was whether P’s statement of special educational needs should continue to specify H school for him or whether it should specify a residential school.   Hackney had carried out a core assessment of P’s needs and decided that they would be best met by his grandmother with the support of the local authority.  In their claim form the claimants submitted that Hackney has acted unlawfully because it applied its policy of not placing children in residential schools and thus fettered its discretion and reached an irrational decision.  Hackney’s offer to provide respite care and other assistance to MP was also unlawful because it proposed to do this through direct payments although it knew that MP was unwilling to accept such payments and care and assistance could only be provided in this way if she consented.  They also claimed that the offer of services lacked specificity and that persisting in the proposal that MP’s mother care for P was unreasonable and irrational.

The High Court examined the allegation that Hackney had fettered its discretion by refusing the placement of P at a residential school.  It was common ground that P was a ‘child in need’ under s17 (1) Children Act 1989 and there was a duty on Hackney to safeguard and promote the welfare of children within their area who were in need.  The court heard evidence from the Team Manager with the Children with Disabilities team who said that Hackney did not have a policy of refusing residential placements for children with disabilities.  Hackney did fund residential placements but that there were risks associated in caring for young people away from their homes.  Children from cultural and ethnic minorities were less likely to have their cultural needs met if they spent a large proportion of their lives away from home.  The Court found that Hackney’s policy was far from being rigid and clearly outlined the options and reasons behind residential placements.  It held that Hackney had not fettered its discretion in applying its policy rigidly with no regard to individual circumstances.

The claimants also claimed the decision not to fund a residential school place was irrational.  MP thought that a residential school would be able to provide the structure and routine which P required.  The social worker was concerned at the risks involved with a residential placement including abuse and bullying.  P had spoken positively about H school and the opportunities he would have if he remained to explore community resources.  The claimants argued that Hackney had not approached its task systematically, the care plan and assessment had been deficient and it had failed to identify clearly what was required to meet P’s needs. R (LH and MH) v LB Lambeth. The Court disagreed and found that Hackney had sought to identify P’s needs and those of his carer, MP.  The ‘package of support’ had been sufficiently clear and specified activities that would be provided and Hackney had not acted irrationally in its decision not to support a residential placement.

Section 17A of the Children’s Act (as amended by s58 Health and Social Care Act 2001) makes provision for the payments to be made to a prescribed person, with that person’s consent, where a local authority has decided that such payments are necessary to secure the provision of services.  A prescribed person is one who has parental responsibility for a disabled child, such as MP.  The Community Care Service for Carers and Children’s Services (Direct Payments) Regulations state that a local authority must make direct payments to persons such as MP.  The claimants argued that MP had not consented to direct payments.  The court agreed that the use of direct payments was dependent on the consent of the person concerned.  However, Hackney did not suggest that it was obliged to make direct payments in the face of MP’s opposition.  The court held they were right not to do so.  The duty in the regulations was implicitly subject to the consent of the person concerned.  However consent did not need to be present for the offer to be made, as submitted by the claimants.  If the conditions in the regulations were satisfied then the authority was obliged to make direct payments but they could not be under a duty to actually make the payments in the face of opposition from the person concerned, but this did not preclude it from making an offer of direct payments.  The amount of the direct payment must be at a rate equivalent to the reasonable cost of securing the provision of the service concerned and could not be subject to a condition that MP needed to reimburse Hackney for part of the costs.  On this point, the court had insufficient evidence before it to determine whether Hackney’s proposed payment was insufficient in amount or that MP was raising unreasonable objections.  The court felt it was unnecessary to decide whether MP had a right to refuse to consent to direct payments and that if she had a reason to believe that P’s needs could not be met in this way the expectation of the statute and regulations was that a discussion should take place between her and the local authority.

Application for judicial review dismissed.

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