Taylor v Secretary of State for Justice and National Probation Service North West Division  EWHC 3245 (Admin)
Keywords: Approved premises, co-operation duty
The claimant (77) was a life sentence prisoner who had been in prison for 40 years. His release had been directed by the Parole Board in May 2014. However, he had not actually been released.
He had previously had a heart attack and a stroke and had physical disabilities, including deafness in both ears, inability to walk unaided for any distance and incontinence. The Parole Board had directed his release to a specific hostel for adult male offenders. The National Offender Management Service (NOMS) (acting on behalf of the Secretary of State for Justice) had a policy that an offender with needs for care and support must have been assessed by the responsible local authority under the Care Act and arrangements made to meet those needs before release could take place.
The hostel had assessed the claimant as requiring additional support (over and above its standard package) at a cost of £1,116.50 a week. The services proposed included 6 hours daily of support from specialist staff and weekly meetings with a psychologist. The hostel was willing to accept the claimant, but only if these additional services were funded.
NOMS, which provided the hostel place, concluded that the additional support required comprised social care services and declined to fund it.
By the time of the hearing (18 months after the Parole Board decision), the claimant had been assessed 3 times by the local authority. The first two (pre-Care Act) assessments had found him ineligible. Only the third assessment (under the Care Act) found him to have eligible needs, but concluded those needs could be met by general services and declined to allocate him a personal budget. Whilst the claimant had sought to challenge one of the earlier (pre-Care Act) assessments in the original judicial review claim, permission to proceed with Judicial Review was not given for that aspect of the case and the local authority ceased to be a defendant in the proceedings. The claimant did not seek to contest the outcome of the local authority’s Care Act assessment in the course of these proceedings.
Permission to proceed with the JR had been given in respect of the Secretary of State for Justice and the Probation Service only, and only on the grounds of:
- failure to bring about the claimant’s release in breach of s.2 Offender Management Act
- breach of the s.6 Care Act co-operation duty
Leggatt J held that, where social care needs arise from disabilities, they fall entirely under social care (and thus are the responsibility of local authorities) and that neither of these statutory provisions could be used to require NOMS to fund provision for such needs. Much of the support required by the claimant related to adapting to life outside prison and re-learning independent living skills as a result of his prolonged incarceration. The tasks involved were those of daily life (e.g. money management, laundry etc.) and could be characterised as social care. However they were also part of his rehabilitation as a result of his imprisonment. If his mobility needs could be met by aids (such as a mobility scooter), he would require a member of staff to accompany him outside the hostel due to supervision requirements as part of the conditions of his release. Consequently he concluded that, overall, the additional support that the claimant required could not be clearly distinguished as either social care or rehabilitation, but had a dual purpose.
Leggatt J concluded that the Secretary of State’s duty under s.2 Offender Management Act was a general duty to ensure that sufficiency of nationwide provision as a whole and could not be interpreted as requiring the making of specific provision in relation to a particular offender. The claim for judicial review on that ground was therefore dismissed.
Turning to the s.6 Care Act co-operation duty, the defendants were “relevant partners” of the local authority. Leggatt J considered the scope of their responsibilities in this capacity. He concluded that merely referring an individual to the local authority for assessment and helping to arrange for that assessment was not sufficient to meet the duty. However, at the other extreme, he concluded that the duty did not create an obligation on the relevant partner to fund the provision of services where the local authority declined to do so. Rather he considered: “section 6(1) of the Care Act requires the defendants to engage in good faith discussions with the responsible local authority to attempt to agree how support which serves such dual purposes is to be funded. Participating in such discussions in good faith must also entail being ready and willing to contribute financially to an appropriate arrangement to meet” needs which the partner has a duty to meet (in this case “additional rehabilitation services” to meet “priority needs” Probation Instruction 06/2012 issued by NOMS). [para 34]
Nevertheless, he concluded that the defendants were not in breach of the s.6 Care Act duty in this case because “There was no basis for collaboration or the co-commissioning of services when the local authority did not accept that the claimant [even] required support under the Care Act.” [para. 35]
The claim for judicial review was dismissed.
One can only infer that the local authority’s Care Act-based decision in July 2015 to the effect that the claimant had eligible needs but that these could be met by general services (as opposed to funded and commissioned services) seems likely to have been based on a view of how the claimant’s social care needs could be met which relied on broad assumptions without much in the way of regard for his actual life circumstances. It is difficult to imagine how the local authority envisaged general services would actually be appropriate for and accessible to the claimant, and it seems surprising that a challenge to the appropriateness of the way in which the local authority proposed to meet the claimant’s eligible needs was not made – since this would seem to have been potentially a much stronger foundation for a JR claim than the general co-operation duty under s.6.
It was contended that NOMS had breached the s.6 Care Act co-operation duty. This claim failed on the grounds that NOMS could not co-operate with a local authority by engaging in a good faith discussion about co-funding where the local authority was declining to accept any responsibility for funding at all.
The issue which is tantalisingly left undecided, is whether the court would have found either the defendant OR the local authority to be in breach of the s.6 co-operation duty if they had been a party to the proceedings. While the s.6 co-operation duty is a general duty, the judgment does seem to imply that a judicial review claimant could potentially rely on it successfully. However it is also clear from the judgment, that any such claim would be limited to consideration of whether the defendant public body has engaged in co-funding discussions in good faith. Reconsideration of the notion that they are under a duty to do so if and only if the body with whom they are required to co-operate have themselves accepted in principle that they have a specific duty towards the individual in question is probably needed in another case. This case makes it seem unlikely that the s.6 duty can be used in isolation meaningfully to challenge any public body which has decided that it does not owe a more specific duty (such as the s.18 Care Act duty) – and that would have ramifications for the whole value of the co-operation duty in situations where CCGs are entrenched about CHC pathways and protocols….