Mohammed Ali Raja v London Borough of Redbridge
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 05 June 2020 |
| Neutral Citation | [2020] EWHC 1456 (Admin) |
| Date | 05 June 2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4789/2019 |
R (on the application of
[2020] EWHC 1456 (Admin)
Mr Justice Fordham
Case No: CO/4789/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Emma Foubister (instructed by Hansen Palomares Solicitors) for the Claimants
Catherine Rowlands (instructed by Redbridge LBC) for the Defendant
Hearing date: 28 April 2020
Approved Judgment
Introduction
This is a case about the night-time care needs of two adult brothers with severe physical and learning disabilities. It is about whether the sole justifiable response for the local authority to adopt was to provide additional care and support pending a full needs reassessment. That question really turns on whether the mother of the two brothers could, in the meantime, reasonably be expected to reposition her sons at night-time by herself. Procedurally, this case is a good example of a “rolling judicial review”, capable of being embraced as appropriate, with suitable rigour and focus, within the principled flexibility recognised as applicable in public law proceedings.
The hearing before me was a Skype remote hearing during the Covid-19 pandemic. It and its start time were published in the cause list, with contact details available to anyone seeking permission to observe the hearing. I was addressed by Counsel, in exactly the same way as if we were in the court room. I am satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.
The relevant statute is the Care Act 2014. As Peter Marquand, sitting as a deputy High Court judge, explained in R (GS) v Camden LBC [2016] EWHC 1762 (Admin) [2017] PTSR 140 at paragraph 19:
The way the Care Act works is as follows. Where it appears to a local authority that an adult may have need for care and support a care ‘needs assessment’ must be carried out by the local authority under section 9. Having carried out that assessment, the local authority must go on to consider whether the assessed person has any eligible needs under section 13 and the Eligibility Regulations. If the person assessed has eligible needs, the local authority is under a duty to provide support by section 18. If the assessed needs are not eligible needs than the local authority has power under section 19 to meet those needs.
The reference to section 19 in the final sentence of this passage is, more specifically, to section 19(1). For the purposes of the present case, I add to the GS outline the following further basic points:
Section 19(3) empowers the local authority to “meet an adult's needs for care and support which appear to it to be urgent… without having yet – (a) carried out a needs assessment or a financial assessment, or (b) made a[n eligibility] determination under section 13(1).” Section 24(1)(a) requires a local authority, when acting under sections 18 or 19(1) to “prepare a care and support plan or a support plan for the adult concerned”. Under section 25(1), the plan must specify the assessed eligible needs which the local authority is going to meet and the way in which it is going to meet them. Section 27 provides for plans to be reviewed and revised, including a duty of re-assessment and re-determination in materially changed circumstances, and specifies how the local authority is to approach review and revision.
There is a contested issue of law in the present case, to which I will come, about how section 19(3) (pre-assessment meeting of urgent care needs) fits together with section 27 (review and revision of care plans). Ms Rowlands helpfully drew my attention to the amendments to section 19, made by the Coronavirus Act 2020, but neither Counsel submitted that they affected the analysis in this case and I say no more about them.
The Primary Decision-Maker
The primary decision-maker under the 2014 Act is the local authority. Its actions are subject to the secondary and supervisory jurisdiction of this Court. So, for example, needs assessments are for the local authority to make, but in doing so “they have to ask themselves the right questions and provide rational answers”: R (McDonald) v Kensington and Chelsea RLBC [2011] UKSC 33 [2011] PTSR 1266 at paragraph 69 (Lady Hale). Similarly, re-assessment, review and revision are all a matter for the local authority, provided that “it does not act in a Wednesbury unreasonable way”: McDonald at paragraph 52 (Lord Dyson). The position of the defendant as primary decision-maker is also reflected in paragraph 5.33 of the statutory guidance to which I now turn.
The Guidance
Central government has issued Care and Support Statutory Guidance on the application of the 2014 Act. The version to which both Counsel made reference was as updated on 2 March 2020. Sections of the statutory guidance of particular note are as follows. (1) Paragraphs 5.26 and 5.33: describing section 19(3) urgent action as being a response which may be necessitated in circumstances of “service interruption”, with “urgent” taking “its everyday meaning” (para 5.26); and where “[i]t is for the local authority to decide if it will act to meet a person's needs for care and support which appear to it to be urgent. In exercising this judgement the local authority must act lawfully, including taking decisions that are reasonable” (para 5.33). (2) Paragraph 6.26, which discusses section 19 urgent action in the context of “first contact with the authority”, describing “the powers to meet urgent needs where [the local authorities] have not completed an assessment”, and adding “[w]here an individual with urgent needs approaches or is referred to the local authority, the local authority should provide an immediate response and meet the individual's care and support needs… Following this initial response, the individual should be informed that a more detailed needs assessment, and any subsequent processes, will follow”. (3) Paragraphs 13.8, 13.19, 13.27 and 13.34, which discuss the position arising in conjunction with “review of care and support plans”. In those paragraphs the Guidance explains that a local authority “satisfied that a revision is necessary… must work through the assessment and care planning processes as detailed in sections 9–12 and 25 of the Act to the extent that it thinks appropriate” (para 13.8); that “unplanned reviews” are appropriate “[i]f there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan”, in which case “the local authority should immediately conduct a review to ascertain whether the plan requires revision” (para 13.19); that “[w]hen revising the plan”, the local authority “should wherever possible follow the process used in the assessment and care planning stages. Indeed, the local authority must if satisfied that the circumstances have changed in a way that affected care and support or support plan, carry out an needs or carers assessment and financial assessment, and then revise the plan personal budget accordingly” (para 13.27); and finally that “[t]he review should be performed as quickly as is reasonably practicable. As with care and support planning, it is expected that in most cases the revision of the plan should be completed in a timely manner proportionate to the need to be met. Where there is an urgent need to intervene, local authorities should consider implementing interim packages to urgently meet needs while the plan is revised” (para 13.34).
“Interim care” and “Interim relief”
In this case, the word “interim” is used in two different settings. First, interim care provision is the local authority's action, as described in section 19(3) of the Act and in paragraphs 5.26, 5.33, 6.26 and 13.34 of the Guidance. That is action taken pending full appraisal by the local authority of the merits and a substantive decision by the local authority as primary decision-maker. These proceedings are all about, and only about, interim care provision. Secondly, interim relief was the interlocutory judicial remedy sought and obtained from the court at the outset of the proceedings, pending full appraisal by the Court of the legal merits and a substantive decision by the Court in its supervisory jurisdiction. The “final” order sought at the substantive hearing before me was an order requiring the defendant to continue with its “interim” care provision, as had been ordered in the Court's “interim” relief.
The Claimants and their Existing Care Package
The claimants are Mr Mohammad Ali Raja and Mr Haider Ali Hussain. They live with their mother, Mrs Rukhsana Hussain. In this judgment I am going to refer to them as “the claimants”, and “the mother”, and to the local authority Redbridge LBC as “the defendant”. The first claimant is a 32-year-old man with a diagnosis of Cerebral Palsy, Epilepsy, Sjorgen Larsson Syndrome, Multiple Profound Learning Disability and Thoracolumbar Kyposis of the spine. The second claimant is a 25-year-old man with a diagnosis of Cerebral Palsy, Multiple Profound Learning Disability, Sjorgen Larsson Syndrome, Increased Thoracic Kyphosis, Shoulder Obliquity and Pelvic Obliquity. Leaving aside the disputed interim care provision, this was the nature of the care package which as at June 2019 the defendant...
To continue reading
Request your trial
-
R (on the application of CB) v The Secretary of State for the Home Department
...I agree with Mr Burton KC that a Mandatory Order in this case has virtues of the kind I described in R (Raja) v Redbridge LBC [2020] EWHC 1456 (Admin) [2020] PTSR 2129 at §66: “The fact that the order embodies what I was told … is now a decision of the [SSHD] … can be recorded in an appro......
-
The Queen (on the application of the Governing Body of Yew Tree Primary School) v Secretary of State for Education
...Civ 2604 at para 62 per Coulson LJ. 54 The Claimant referred to the more recent decision of Fordham J on R (Raja) v Redbridge LBC [2020] EWHC 1456 (Admin), which indicates that a rolling review can in some cases be appropriate if approached with care and discipline. The Court should procee......
-
R (D) v Hampshire County Council
...may be assisted, in relation to the concept in principle of a ‘rolling judicial review’, by some observations I made in Raja [2020] EWHC 1456 (Admin) at paragraphs 18–21. I have noted in the authorities cited by the parties that in at least two of the cases the judicial review court receiv......