R (AB and SB) v Nottinghamshire County Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE RICHARDS |
| Judgment Date | 30 March 2001 |
| Neutral Citation | [2001] EWHC 235 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 March 2001 |
| Docket Number | Case No: 4740/2000 |
[2001] EWHC 235 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEENS BENCH DIVISION
The Honourable Mr Justice Richards
Case No: 4740/2000
Mr Ian Wise (instructed by Messrs Bhatia Best for the Claimants)
Mr Andrew McNamara (instructed by Solicitor to Nottingham City Council for the Defendant)
This is an application for judicial review of what is alleged to be an ongoing failure by the defendant council to assess and provide for the claimants' needs. An order has been made in these proceedings to prevent publication of the names both of the second claimant ("SB"), who is a 14 year old child, and of the first claimant ("AB"), who is the second claimant's mother. In the case of AB the order was made solely in order to ensure the effective anonymity of SB.
AB is 35 years of age, is divorced and has no partner, and lives in housing rented from a housing trust in the St Ann's area of Nottingham. SB is her younger son and lives with her. Her elder son, SB's brother, is detained in a young offender institution, from which he is due to be released in November 2001. AB herself had a difficult background, being placed in local authority care as a teenager and being subjected later to domestic violence by her former husband which led to her taking drugs. There have been serious concerns in the past about her parenting skills, but a report in September or October 2000 found that she had few problems with SB within the family home, though there was little doubt that she would benefit from some support and guidance in relation to him.
SB is reported by the local psychiatric services as having "challenging behaviour and emotional problems". He has not been to school for over two years. A report obtained by the claimants from an independent educational psychologist, Dr Randall, indicates that he has profound difficulties: borderline to moderate learning disability, a conduct disorder, attention deficit hyperactivity disorder, an IQ in only the 3rd percentile, an attainment level below the 1st percentile, a numeracy and literacy level of around 6 to 6 1/2 years and a reading age of around 6 years. His behaviour has caused great concern and has brought him into regular contact with the police. He is the subject of a 12 month supervision order made on 13 November 2000 by the Youth Court.
SB is currently the subject of an application by the defendant for an anti-social behaviour order. Those proceedings were commenced on 22 November 2000 but were adjourned because AB had recently been the victim of a serious sexual assault. A directions hearing is now fixed for 3 April 2001. The outcome of the present claim for judicial review has some bearing on the anti-social behaviour order proceedings, since part of the defence case in those proceedings is that an order should not be made in circumstances where the defendant has failed properly to assess SB's needs and to consider other ways of dealing with him short of applying for an order.
SB is accepted to be a "child in need", within the meaning of s.17 of the Children Act 1989. The primary case for the claimants in these judicial review proceedings is that the defendant has failed properly to assess his needs and, in particular, has failed to follow relevant guidance in circumstances where there is no cogent reason for deviating from it. A separate contention is that the defendant has failed to meet its obligations towards AB as carer for SB. The final main contention is that the defendant's approach to the claimants' housing need is unlawful, in that it has failed to assess need or to take meaningful action to meet the need.
The legislative framework
There has been no real dispute before me about the relevant legal principles. Section 17 of the Children Act 1989 imposes a duty on local authorities to provide appropriate services to children within their area who are in need. "Child in need" is defined in s.17(10). Schedule 2 provides that where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of the Act at the same time as any assessment is made of his needs under other enactments. Although a number of other enactments have been referred to in the course of argument, it is common ground that they do not add materially to the substance of the duty under the Children Act.
In exercising their social services functions, local authorities are required to act under the general guidance of the Secretary of State: s.7(1) of the Local Authority Social Services Act 1970. In R v. Islington LBC, ex parte Rixon [1997] 1 CCLR 119, 123J-K, Sedley J described the effect of s.7(1) as follows:
"in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
In R v. Lambeth LBC, ex parte K [2000]3 CCLR 141, 144H, Mr Nigel Pleming QC (sitting as a Deputy High Court Judge) applied that passage to the specific context of section 17 and went on to summarise the effect of the guidance as follows:
"In this case, therefore, concentrating on section 17, there is a duty to act in accordance with the general guidance of the Secretary of State, although statutory language allows some flexibility in the methodology and in the provision of services. That said, the intended scheme is clear from the guidance. In summary, the intended procedure is as follows: first, assess the needs of a disabled child and, where appropriate, the carers and other members of the family; second, produce a care plan; third, provide the identified services" (emphasis added).
Although the claimants rely in the present case upon an additional piece of guidance that post-dates the decision in ex parte K, it does not affect the basic scheme there described. Further, the principles are the same for a child who is not a "disabled" child but fulfils one or more of the other criteria of a "child in need" under s.17(10). In the circumstances it is unnecessary to decide whether SB is a "disabled" child, as to which there has been some dispute before me.
I have been referred to four main pieces of relevant guidance issued pursuant to s.7(1) of the 1970 Act: (1) guidance issued in November 1990 in relation to community care, (2) guidance issued in 1991 in relation to the Children Act, (3) a 1999 guidance document entitled Working Together to Safeguard Children, and (4) guidance issued in March 2000, entitled Framework for the Assessment of Children in Need and their Families.
Relevant parts of the guidance in relation to community care are set out in ex parte K at pages 144I-145J. I do not need to set them out again. Paragraphs 3.15 and 3.16 of the guidance indicate that there should be a progressive separation of assessment from service provision and that the individual service user and any carers should be involved throughout the process of assessment and care management. Paragraphs 3.24 to 3.26 focus on the care plan, which should be drawn up once needs have been assessed and should cover the services to be provided or arranged and the objectives of any intervention. Paragraph 3.26 emphasises that decisions on service provision should include clear agreement about what is going to be done, by whom and by when, with clearly identified points of access to each of the relevant agencies for the service user, carers and the care manager. Paragraphs 3.27 to 3.29 deal with carers, advising inter alia that most support for vulnerable people is provided by families, friends and neighbours, and that the assessment will need to take account of the support that is available from such carers. The need to involve them in the process is emphasised. Paragraph 3.29 states that carers who feel they need community care services in their own right can ask for a separate assessment, which could arise if the care plan of the person for whom they care does not in their view address the carer's own needs.
Relevant parts of the Children Act guidance are also set out in ex parte K, at pages 145J-147H, and repetition is once more unnecessary. Paragraph 2.7 states that good practice requires that the assessment of need should be undertaken in an open way and should involve those caring for the child, the child and other significant persons. Paragraph 2.10 states that once a need has been identified, a plan for the best service provision will be required. Paragraph 2.21 refers to the importance of collaboration between those responsible for different services, so as to ensure that all authorities see children "in the round", whether their particular needs are educational or health or social care, and that parents and children are not subject to a confusing variety of assessment procedures.
The 1999 Working Together document sets out how agencies and professionals should work together to promote children's welfare and protect them from abuse and neglect. It is intended to provide a national framework within which agencies and professionals at local level draw up and agree upon their own more detailed ways of working together. It is stressed that good practice calls for effective co-operation, sensitive work with parents and carers in the best interest of the child, and the careful exercise of professional judgement based on thorough assessment and critical analysis of the...
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