R "lp" v Barnet London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DYSON |
| Judgment Date | 17 November 2000 |
| Judgment citation (vLex) | [2000] EWHC J1117-6 |
| Docket Number | NO: CO/670/00 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 November 2000 |
[2000] EWHC J1117-6
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Dyson
NO: CO/670/00
MR IAN WISE (instructed by John Ford Morrison, 3a Blackstock Road, Finsbury Park, London N4 2JF) appeared on behalf of the Claimant
MR JR MCMANUS (instructed by London Borough of Barnet, The Town Hall, The Burroughs, Hendon, London NW4 4BG) appeared on behalf of the Defendant
MR DYSON: The applicant, whom I will call "LP", was born on 24th May 1982. He brings these proceedings by his father and litigation friend. He seeks to challenge the fairness of the hearing before the Barnet Social Services Review Panel ("the Panel") pursuant to the Representations Procedure (Children) Regulations 1991 ("the Regulations").
The hearing took place on 25th October and 18th November 1999 and resulted in a decision dated 19th November 1999. He also challenges the response dated 14th December 1999 by the Chief Children's Officer and Director of Social Services of the Barnet London Borough Council ("the Council") to the recommendations of the Panel.
THE HISTORY
LP is now 18 years of age. He lives with his parents. He has multiple disabilities including severe motor dyspraxia and autism. He has been classified as suffering from moderate learning difficulties for which he has had a statement of special educational needs. There has been a long and unfortunate history of complaints by LP's parents against the Council in relation both to his education and social service provision. There has been a complaint to the local government ombudsman and earlier judicial review proceedings.
On 1st July 1998 he was permanently excluded from school. This gave rise to a greater need for social services. A risk assessment was carried out and it was decided that LP needed two social workers to care for him at a time. This led to further dispute between the parents and the Council which culminated in a letter dated 23rd October 1998 in which the parents catalogued 11 complaints. The Council was dilatory in its response. It was not until 9th July 1999 that Mr Farmer, assistant director of children's services, replied to the parents, enclosing a copy of the report dated 9th June 1999 that had been written by Mr Metcalfe, investigating officer. Mr Metcalfe upheld complaint number 8 in part and rejected the others. Complaint number 8 was that:
"Community Services have been promising but failing to deliver services during term-time between 9:30 and 3:30 as agreed (during the absence of educational support) or after 3.30 on many days when it was meant to be providing services in accordance with the care plan."
The conclusion of Mr Metcalfe on this complaint was that:
"Although Community Services does not ordinarily provide Home Support during school times, an offer was made to supply staffing during this time to support education staff working with [L]. In the event the Home Care services could not locate the staffing to provide this service and Community Services were unable to deliver the support they had intended. Outcome
Therefore the complaint is partly upheld."
In his letter of 9th July, Mr Farmer stated that he accepted the report of Mr Metcalfe. In relation to complaint number 8, he wrote:
"…I agree with the investigating officer's findings and, in as much as the complaint is partially upheld, I apologise for any inconvenience that you may have been caused. I would, however, point out that home care support is provided through the adult services area at the request of social work staff in children's social services. There are many occasions when adult services have to rely on external agency providers to supply these services. These constraints do sometimes make it difficult to ensure that services are delivered in such a way as to meet stated need."
He notified the parents of their right to request a further consideration of the matter under the Children Act Representation Procedure. The parents gave notice of their dissatisfaction with the decision. The Council failed to set up a panel within the 28 day period prescribed by regulation 8(4) of the Regulations and judicial review proceedings became necessary. Eventually, a panel hearing was convened for 25th October.
THE HEARING ON 25TH OCTOBER
Legal Representation
The parents appeared before the Panel with a pupil barrister, Ms Claire Bostock, and Mr Tom Putt, a representative from their solicitors who they wished to take notes of the proceedings. They also had a witness, Beverley Knight. Other persons present included Judith Usiskin, chair of the Panel; Anita Campbell and Lynne Hillan, who were the other Panel members; and, Teresa Harrison, a barrister employed by the Council, whose role was to advise the Panel on procedural and legal issues relating to the case. Also present were Mr Metcalfe and some Council social services officers, and Mr Herring, the committee manager, as the note-taker. Miss Usiskin is independent of the Council and chairs panel meetings as a volunteer. Ms Campbell and Ms Hillan are members of the Council. At one stage Mr Wise contended that the Panel was not sufficiently independent, but that argument has not been pursued.
At the outset, the parents made an application to be legally represented by Ms Bostock and for Mr Putt to be allowed to remain to take a note of the proceedings. Submissions were made in support of the application by Ms Bostock. The Panel also heard from Mr Metcalfe and the Council officers, who objected to the parents having legal representation. They said it would be unfair since they had no lawyer to represent their interests. The Panel took the view in those circumstances that it would be necessary to adjourn the hearing if legal representatives were to be allowed to the parents.
It is clear from the evidence that the parents were unwilling to agree to an adjournment, and that they did agree to continue without legal representation. Ms Usiskin says in her witness statement that the Panel decided:
"The informality of the meeting and the lack of legal representation for Barnet Social Services and the need to hear from [the parents] themselves about their complaints deemed it appropriate for the [parents] not to have legal representation."
She adds that the parents were advised that as their barrister would wait outside they were free to seek legal advice from her at any time. The evidence of Ms Campbell is to similar effect. She adds that at no stage during the meeting did the parents in fact indicate that they had any need for legal advice. Ms Harrison says that she advised the Panel that the Regulations did not prohibit legal representation, but that the Children Act 1989 Guidance and Regulations Volume 4 suggested that the conduct of the meeting should be as informal in atmosphere as possible. She also says that the Panel were concerned at the fact that, if the parents were legally represented, Mr Metcalfe and social services officer would leave the meeting, and thought that they would be better assisted if all parties were present throughout the meeting.
Note-taking
The parents wanted Mr Putt to stay to take notes of the hearing. Mr Metcalfe objected to Mr Putt taking notes on the grounds that he was concerned that he would be misrepresented. He was concerned about the use that the parents might make of the notes after the meeting. He told the Panel that he would leave if Mr Putt was allowed to stay and take notes. Ms Usiskin says that the Panel were concerned by this, since they felt that they needed to hear from Mr Metcalfe. They did not consider that the absence of a note by Mr Putt would prejudice the parents. Mr Herring was an experienced note-taker. A copy of his notes would be provided to the parents at the conclusion of the meeting (and this is what happened). Moreover, Ms Knight agreed to take notes for the parents as well. Thus it was that the Panel decided not to allow Mr Putt to remain at the meeting in order to take a note. The parents were notified of this decision and they agreed to carry on with the hearing.
As I have said, a copy of Mr Herring's notes was provided after the hearing and no complaint was made by the parents that they were inaccurate or incomplete.
The hearing on 18th November and the Panel's decision The hearing of 25th October was taken up exclusively with the procedural matters to which I have referred. The Panel prepared a revised list of six consolidated complaints before the reconvened meeting of 18th November.
The legal adviser to the Panel who appeared on 18th November was Margaret Boon, in place of Ms Harrison. The composition of the Panel was the same as on 25th October. The decision of the Panel was communicated by letter dated 19th November. They dismissed most of the complaints, but upheld two of them. It is necessary to the set out the conclusions of the Panel in some detail.
"The Panel took the following decisions on the complaints:
Complaint 1 (originally, complaint 1)
'The Home Care Managers have made outright defamatory remarks, gossiped maliciously and given misinformation about this family to staff employed to provide home care support."
Panel's Decision
No evidence was available to the Panel to substantiate the complaint. The Panel upheld the conclusions and outcome in the report of the investigating officer.
Complaint 2 (originally, complaints 2 and 10)
'Staff employed to work with L (providing home care and support) are not having their professional views and assessment...
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