R (on the application of MM) (BY HIS MOTHER & LITIGATION FRIEND, TM) v HOUNSLOW LONDON BOROUGH COUNCIL (2015)
Keywords: Disabled children, parent carer, assessment, eligibility criteria
This case concerns events which occurred prior to the implementation of EHC plans under the Children and Families Act 2014. However, the core issues relate to social care assessment and provision under s17 Children Act 1989 and therefore continue to apply.
FACTS: The case concerned the needs of a disabled child (a 15 year old boy who had autism) and his mother (as his parent carer).
A 2005 assessment had found that he needed 12 ½ hours direct payments per week to meet social care needs. He was primarily home educated, although he had attended an independent school for 1 1 ½ days per week from 2010-2014. A further assessment had been undertaken in 2010, which had assessed him as needing 8 hours per week, although this reduction had never been implemented. In February 2014, the manager of the Children with Disabilities team told the child’s mother that he was receiving more hours of support than he was entitled to according to Hounslow’s eligibility criteria and that the support would be reduced. The child’s mother objected and in July 2014 Hounslow agreed to undertake a fresh assessment and review their eligibility criteria. However the promised assessment had not materialised by December 2014 and a judicial review was originally sought at that time on two grounds: (1) That Hounslow’s eligibility criteria operated as an unlawful fettering of discretion with regards to the level of support being offered to MM; and (2) Failure to provide an assessment of MM (this at the point where the last assessment was one produced in 2010). Shortly after permission to proceed with the judicial review was granted, Hounslow produced a new assessment (in Feb 2015) and also provided further explanation of their eligibility criteria, stating that they were used “as a guide to the number of hours or [sic] direct payments that is allocated following the assessment of need by the social worker” (para 5) and denying that they fettered discretion.
The February 2015 assessment recommended that MM should attend a local special school, access overnight respite services provided through a short break scheme and be referred to a challenging behaviour team. The assessment report did not recommend an increase in the number of hours of support to be provided through direct payments.
The judicial review application was then revised to contend that the assessment underestimated the extent of his need for support and supervision, his inability to look after himself and his challenging behaviour.
ANALYSIS: The key issue was whether the view taken by the social worker that the current level of direct payments was either adequate or should be reduced was unreasonable in the light of the evidence of MM’s needs. Firstly, it was held that, given the social worker’s view that MM should attend a special school, it was not unreasonable for her assessment to consider only the support required outside of school hours. Secondly, whilst the social worker’s view of MM’s needs differed from that of his mother’s, her views were based on rational, evidence-based arguments (drawing on her own observations, documentary evidence and the views of other professionals). It was, therefore, open to her to reach the conclusion she did regarding the level of support needed on the basis of her own judgement of MM’s needs and not that of his mother. Therefore, it was open to the council to conclude that the additional support requested was not necessary to meet his needs and that they could appropriately be met in the ways the social worker’s assessment recommended.
An interesting implication of this judgement is the acceptance by Keith J of the council taking into account the impact of the child’s mother choosing to not access non-social care services available to her (in this case a special school) in deciding that her needs as a carer did not require the provision of direct payments for overnight respite care. This is fundamentally consistent with Kensington & Chelsea v McDonald (2011) in upholding the principle that councils can consider resources in choosing between appropriate ways to meet needs if the service offered is considered to have genuine benefits for the individual – in this case the social work assessment argues that attending a special school would further the child’s access to a range of therapeutic inputs and provide independent assessment of and support with his challenging behaviour and is, therefore (in combination with the provision of other services), a more suitable form of respite for his mother than additional direct payments.
However, the judgement seems not to have addressed the issue of the form in which services are to be provided (i.e. direct payments or provision of services) independently of the issue of the appropriateness of different types of services. The ruling does not conclude that direct payments would not have been an appropriate way to meet the needs, only that the services proposed in the assessment report were an appropriate way to do so. This leaves unanswered the question of whether the council had a duty to also offer the option of direct payments as an alternative to the directly provided services recommended by the social worker under reg. 7(1)(c) The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009.
The issue of the lawfulness of the eligibility criteria was resurrected at the hearing. In this area two issues arose. Firstly, it was argued on behalf of MM that the level of support corresponding to the points system used by Hounslow was irrationally low. Children who scored at the highest level (70 points or more) were only eligible for up to 9 hours of support a week. Keith J took the view that there “would have been a good deal in this criticism” but nevertheless concluded that this did not render the eligibility criteria unlawful on the grounds of irrationality, because “the criteria were not prescriptive” and could be exceeded in individual cases where there was reason to do so (as indeed they had been in the current case). This appears to go a little further than Cambridgeshire v KM (2012) in establishing a position that it is not the general structure of the RAS itself that has to be rational, provided the final allocation in any given case is able to be rationally justified in relation to the circumstances of that particular case.
Secondly, R(JL & LL) v Islington LB EWHC 458(Admin) established the lawfulness of the use of eligibility criteria in relation to the exercise of powers (such as those under s17 Children Act). However, in relation to duties (such as those under s.20(1) Children Act – which (also held in the Islington case) can include short break services for overnight respite or the frequently overlooked s2 CSDPA) eligibility criteria can be used to decide whether a child is within the group of children for whom, having regard to its resources, a council might be able to provide services under that section, but they cannot be used to limit the provision offered to an individual once a local authority has decided they are within the eligible pool. In this case, Keith J appears to accept Hounslow’s contention that discretion was exercised following the application of the criteria and, therefore, that Hounslow’s eligibility criteria did not limit provision for individuals within the eligible pool.
Two other issues are raised by this case which it is worth briefly mentioning:
- It was held to be lawful for the local authority to have deferred producing a care plan whilst awaiting the outcome of the judicial review because any care plan might have been quashed. Keith J concludes that “the right course for Hounslow to have taken, once permission had been given to amend the grounds to enable a challenge to the assessment to be mounted, was to wait for the outcome of the case.” (para 41). This conclusion appears to have been reached on the grounds that the assessment had not actually been concluded because the mother was disputing it and, therefore, the subsequent obligation to produce a care plan and provide the services (KM v Cambridgeshire (2012)) had not yet arisen despite the normal 45 day time limit (para.57 Working Together to Safeguard Children guidance 2013). This would appear to raise issues around article 6 ECHR rights and principles of fairness that disputes should not result in services not being provided in the interim.
- A final note of interest is that the judgement contains a comment about what constitutes an assessment. Referring to a document described by Hounslow as a ‘Carer’s Assessment’, Keith J comments “despite its heading it was not an assessment of MM’s mother’s needs. It merely set out what MM’s mother claimed were her needs, and it did not include any assessment by Ms Butt [the social worker] about what MM’s mother’s needs actually were.”. Although this is nothing new in the case law around social care assessments, it should act as a warning about the hazards of “assessments” which lack any professional analysis and judgement. By contrast, the s17 Child in Need assessment which set out evidence and a detailed rationale for the professional judgements made was viewed as “comprehensive” (Para. 15).
Overall this case is a good example of the effectiveness of issuing judicial review proceedings in prodding councils into actually carrying out assessments. However it is also a warning of the likelihood that the outcome of such assessments may well not be the services which an individual or their care wants, but only those which are judged by medical and/or social care professional to be appropriate and necessary. In children’s services, “personalisation” is still more window dressing than reality since the legal framework (even taking the Children and Families Act 2014 into account) does not actually provide effective rights or control to families over whether services are provided or what types of services may be deemed appropriate for them. Councils have considerable discretion over what services to offer provided there is some adequately rational basis to view those services as appropriate.