R (KM) v Cambridgeshire CC
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Bidder QC |
| Judgment Date | 26 November 2010 |
| Neutral Citation | [2010] EWHC 3065 (Admin) |
| Docket Number | Case No: CO/7723/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 November 2010 |
[2010] EWHC 3065 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: His Honour Judge Bidder QC
Sitting as a Deputy Judge of the High Court
Case No: CO/7723/2010
Mr Ian Wise QC, Mr Ben Silverstone
(instructed by Messrs Scott-Moncrieff, Harbour & Sinclair) for the Claimant
Mr Jonathan Auburn, Mr Benjamin Tankel
(instructed by Legal Services, Cambridgeshire County Council) for the Defendant
Hearing dates: 11 and 12 November 2010
Royal Courts of Justice, Strand, London
His Honour Judge Bidder QC:
The Claimant seeks judicial review of the Defendant's decision of 5 January 2010 to award him £84,678 as a direct payment to meet his assessed care needs. The application before me has been listed as a rolled up application. Originally, the grounds of the claim were fourfold, namely:
i) that the Defendant had failed to assess the Claimant's needs;
ii) that the Defendant had failed to provide reasons for its service provision decisions;
iii) that the Defendant's methodology used to calculate care packages lacked transparency;
iv) that the Defendant was in breach of its duty to adapt the Claimant's home.
Although the Claimant nominally continues to argue grounds (i) to (iii) above, it appeared from Mr. Wise QC's skeleton that he sought at the hearing before me to make his central challenge in reliance on an allegation that the Defendant was in breach of what is contended to be an absolute obligation to provide him with a care package to meet his assessed needs. That is a new ground that it was predictable, in my judgment, from the first three grounds would in due course be relied on. As this is a pre-permission hearing, the result of refusing permission to argue that new ground would result in the Claimant having to issue fresh judicial review proceedings. I did not consider that the Defendant had been significantly prejudiced in dealing with the new ground and I thought it right to allow argument on the new ground and, if necessary, to permit an amendment to the grounds of claim to incorporate it.
That appeared to be the Claimant's position until I received at the hearing the speaking notes of Mr. Wise QC and heard his arguments. It appeared to me clear beyond doubt that in the speaking notes the Claimant had again changed tack and was reverting to a reasons attack on the decision rather than contending that the decision to give only the £84,678 was irrational. Although Mr. Wise, when asked by me whether he had abandoned the irrationality argument, maintained he had not, I found his explanation of how that argument was consistent with the content of his speaking notes and his oral argument unpersuasive and one only has to compare the relief claimed in the skeleton (a mandatory order requiring the Defendant to increase his personal budget to £120,000, additional to a declaration that the offer of the other sum or sums were insufficient to discharge its obligations to the Claimant and that its reasons for those offers did not establish that those sums were sufficient) and that at the end of his speaking note (a declaration that the Defendant has failed to explain how the Claimant's needs can be met from the sums offered and a mandatory order requiring the Defendant to provide a reasoned decision as to how much they propose to allocate for the Claimant's care) to recognise that there has, in fact, been a substantial shift in the way that the Claimant has sought to put his case.
In fact, I have thought it right to deal both with the reasons argument and the rationality argument, the one based on oral submissions and the speaking note, the other, based on the skeleton and oral argument in reply to Mr. Auburn. In my judgment, the shifts in the Claimant's position have been undesirable and have made both the Defendant's job of answering the true case and, indeed, the court's task of making a judgment in the claim unnecessarily difficult.
The factual background to this case is that the Claimant is a young man who is now aged 26 and who has a range of serious physical and mental disabilities. He was born with no eyes or optical nerves, has learning disabilities and an autistic spectrum disorder. He has other medical conditions including a growth hormone deficiency, spinal disease, lung and hearing problems and a rare condition known as septo-optic dysplasia (SOD).
Despite those very serious health problems, the Claimant has many abilities. He is able to read Braille. He can communicate his desires and aspirations. Although his education has been disrupted because of ill-health he has, nevertheless, obtained two GCSEs (in French and music). He has a certificate in drumming. He plays the piano and clarinet, is keen on jazz and composes his own rhythm and blues music.
There is no doubt, however, that he needs significant support in his everyday life. He has learning difficulties. He is unable to feed himself with a knife and fork. He needs help with self-care, a sighted guide to accompany him when outside his home, and support with many living skills.
He has had various placements, more or less successful, set out in the chronology at the start of the Claimant's skeleton argument, which I gratefully adopt. He now lives with his mother, the litigation friend, and his younger brother and sister in a village in the Defendant Authority's area. There was a complaint (original ground (iv)) that the Defendant was in breach of its duty to adapt the Claimant's home, which had been unsuitable council-owned accommodation. However, the family have recently moved into larger private rented accommodation and will be seeking the assistance of the Defendant to ensure that home is suitable for the Claimant's needs. Ground (iv) has, therefore, fallen away.
The Defendant Authority are responsible for the provision of care to the Claimant. In summary, in the provision of such care, a Local Authority must assess an individual's care needs and it must also make provision which meets the reasonable needs of the individual concerned.
Section 29 of the National Assistance Act 1948 states that:
“(1) a Local Authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority, shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say, persons who are aged eighteen or over blind, deaf or dumb, or who suffer from mental disorder of any description and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister.”
Section 2 of the Chronically Sick and Disabled Persons Act 1970 states:
“(1) Where a Local Authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for or any of the following matters, namely—
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person facilities for, or assistance in, travelling to and from his home for the purpose or participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,
then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State)] [and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State)], it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29.”
Section 47 (1) of the NHS and Community Care Act 1990 states:
“Subject to subsections (5) and (6) below, where it appears to a Local Authority that any person for whom they may provide or arrange for the provision of community...
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R (KM) v Cambridgeshire CC
...Bench Division, Administrative Court, refused to grant the appellant permission to make the application for judicial review: [2010] EWHC 3065 (Admin). The Court of Appeal (Sir Anthony May, President of the Queen's Bench Division, and Jackson and Tomlinson LJJ) granted the permission which t......