L v Leeds County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 12 November 2010 |
| Neutral Citation | [2010] EWHC 3324 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2589/2010 |
| Date | 12 November 2010 |
[2010] EWHC 3324 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Sitting at Leeds Combined Court Centre
The Court House
1 Oxford Row
Leeds West Yorkshire
England
LS1 3BG
Before: Mr Justice Langstaff
CO/2589/2010
Mr I Wise QC & Mr Broach (instructed by Irwin Mitchell) appeared on behalf of the Claimant
Ms Jenni Richards (instructed by Leeds City Council) appeared on behalf of the Defendant
As Approved)
This rolled up hearing in a case concerning the local authority's performance of its duties towards a child suffering from cystic fibrosis gives rise to both troubling procedural and substantive issues.
Introduction
For a court to intervene in decision making in social care issues is to have it intervene in an evolving situation. It may have become all too easy to lose focus on what is properly the subject of judicial review because of the process of ongoing review by the local authority, the fluctuating needs of the ill child, the varying social circumstances of the family and an entrenchment by the rival parties in their respective positions. That latter has probably occurred here, where the mother of the claimant and her litigation friend, whom I shall call “mum” (because I fear that use of initials may lead to the identification of the child claimant) has been determinedly devoted to caring for her child to the point of selfless self-sacrifice in terms of marriage, her health (she suffers chronic fatigue syndrome, back pain, and exhaustion amongst other problems), her leisure time and her daily routine (in the course of which she spends many hours beyond those she normally would in catering for her children's special needs). She has amassed a wealth of information and experience in identifying and dealing with her daughters' needs, and I suspect rather resents what she sees as interference by social health care professionals where they appear to see things differently from her.
On the other hand, those professionals may see her determined desire to achieve what she considers best for her child as her being unco-operative with the approaches which from their different perspective they think it right to take.
In such circumstances, it is important in an application for judicial review to focus on precisely what is challenged, and on the precise grounds of challenge. Miss Richards, for the defendant local authority, Leeds, in her conspicuously well-presented submissions complains here that matters have evolved to the extent that it was not easy for Leeds to respond to this application —the basis for the application was unclear.
The claim when originally made on 23rd February 2010 was for “failure to provide a treatment room for the claimant in her home.” The date of the “decision” was said to be “ongoing”. Plainly, there is no duty as such in statute or statutory instrument to provide a treatment room for a child with cystic fibrosis in her home. This must therefore either be a complaint of a decision not to provide, or to a failure to take such a decision, in the light of more general duties, for it cannot be that it is a failure to perform a duty set out in those express terms.
In section 7 of the N 461, this is confirmed. The claimant there made an application for an interim order, seeking that the defendant make a decision as to whether it proposed to meet the claimant's needs for a treatment room in her current family home, and asking for an order that it provide a realistic plan of action setting out the timetable for providing such a treatment room within a further 14 days.
It was not alleged before me that the facts were such that the local authority should be compelled to provide a treatment room on the basis that that was the only reasonable decision to which it could come.
Although in extended grounds, drafted by Mr Wise QC, who appears before me together with Mr Broach, for the claimant, she sought by way of remedy (see paragraph 44 and the second head of relief numbered (iii)) an order requiring the defendant to meet the claimant's needs for “provision to treat her condition” this is problematic given the evolving circumstances —but it also assumes a united view of those needs, and what is truly needed as opposed to desirable.
The Background History
The background history against which I make those introductory remarks is this. The claimant, L, was born on 9th September 1996. She has an older sister, H. who was born on 20th August 1995. Both suffer from cystic fibrosis. Their mother is the litigation friend. She has a third child, an infant, recently born to another partner. In 1996 because of the obvious problems that L had she was referred to the Leeds Cystic Fibrosis Multi Disciplinary Team based at St James's University Hospital in Leeds. All new such patients are referred to a social worker. Leeds was the relevant local authority. The family here was struggling to cope. Leeds provided a considerable amount of home care support, initially 10 hours a week, increasing to between 12 to 17 hours plus eight or more to cover weekends. By May 2002 Leeds was funding help for five days per week, and the children's aunt was paid for providing occasional respite care.
On 28th February 2002 an occupational therapist made an assessment of the claimant's needs. At that time the claimant was 5 and H was 6. They shared a bedroom. There was enough room, thought the occupational therapist, within which the necessary treatment could take place. Cystic fibrosis involves two particular consequences which are of significance to this claim. The first is that it seriously compromises respiratory function. Such is the production of mucus in the chest that physiotherapy is required to shift it. Secondly, those suffering from cystic fibrosis in the way in which L and H did, are unable to process foods in the same way as those who do not so suffer. They require pancreatic enzyme replacement therapy and a special diet very heavy in fats and oils. Both physiotherapy, equipment for it and food storage may need space.
On 3rd May 2002 a recommendation was made that outbuildings at the council house which the family occupied should be upgraded to provide for space for a washer dryer and for more kitchen storage. It was thought that the space in the bedrooms was sufficient to provide for the necessary physiotherapy.
On 8th April 2003 Dr Bradley, one of the experts who had the care of L and H at Leeds, wrote a letter emphasising that it was important to have adequate room to deliver the necessary treatment safely. It is apparent he had in mind physiotherapy treatment.
In January 2004 the family home was refurbished as part of a regeneration scheme. The family was placed in temporary accommodation but refused to return until the outbuilding was converted to a treatment room. That did not happen. It had of course been upgraded, as I have described.
On 3rd November 2004 there was a further assessment by an occupational therapist. The children appeared to be in worse health than on the previous occasion. The occupational therapist reported that there was insufficient space within the property to meet their ongoing health care needs. She suggested that a separate treatment room should be provided.
On 15th February 2005 a larger council property was offered to mum. This would have been large enough, it appears, to have met the needs for space to provide for physiotherapy and the accommodation of the additional equipment needed to deal with this rare disease. It was a council house close to the house which mum and the children occupied. It therefore would have preserved the social links with which living where she did provided her, and the degree of support that she derived from that. Mum refused to move.
On 2nd December 2005 the solicitors acting for the claimant obtained a report from a Professor Taylor. Although he describes himself on the face of the report as a Professor of paediatric gastroenterology, and an honorary consultant paediatrician, and it might therefore be thought that he had no particular expertise in cystic fibrosis he was in fact the director of the cystic fibrosis unit at the University of Sheffield, School of Medicine of Biomedical Sciences. He advised that in his view the existing home was too small to provide appropriate and necessary treatment, and that a sizable room was required to accommodate a physiotherapy bed, with appropriate access to it, and to install all necessary medical equipment.
In May 2006 solicitors for the claimant asked that a treatment room be provided. Leeds refused, but agreed that there should be an update to the Disabled Children Integrated Needs Assessment in respect of the claimant and H which under statute they would perform. Also in that month, and following this refusal, mum complained formally to the Local Authority Complaints Scheme. That was the scheme established under the Local Authority Social Complaints (England) Regulations 2006 ( SI 1681 of 2006). The complaint extended to 165 pages. Leeds, under standard arrangements, referred it to a consultancy, RR Consultancy, who agreed with mum that in order to reduce the length and complexity of the complaint to manageable levels the consultancy would produce a summary statement for her comment and approval which would then form the basis of terms of reference of the investigation of the complaint. Despite further attempts by the consultancy to secure the agreement of mum to the summary that was then produced, this was not...
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