R v Avon County Council ex parte M
| Jurisdiction | England & Wales |
| Judgment Date | 1994 |
| Year | 1994 |
| Date | 1994 |
| Court | Queen's Bench Division |
Henry, J
Local authority – duty to provide residential accommodation – person suffering from Down's Syndrome – desiring to be placed in certain accommodation – local authority proposing to place in other accommodation – matter referred to complaints review panel – local authority rejecting panel's recommendation – whether local authority's decision could stand.
The applicant was aged 22 and suffered with Down's Syndrome. By s 21 of the National Assistance Act 1948 the local authority were required to make arrangements for providing residential accommodation for him as a person who by reason of infirmity was in need of care and attention not otherwise available to him. In 1989 the local authority began an assessment process to decide the most appropriate placement for the applicant's needs. At first he was accommodated in a training unit. In Sepember 1991 he spent three weeks at accommodation at Milton Heights. He was offered a place there and both he and his family were set on his going there when he left the training unit. However, the local authority proposed two other alternatives. The applicant's mother did not regard either of them as suitable. In January 1992 a review panel recommended that the applicant should be placed at the accommodation at Milton Heights. The local authority's social services committee rejected the recommendation. The applicant commenced judicial review proceedings in March 1992. However, later that year, the local authority revised their community care policy. The judicial review proceedings were provisionally compromised on terms that the applicant's psychologist and the local authority's social worker prepared a joint assessment of the applicant's needs and that the matter be reconsidered by the review panel. This was done. In a decision in January 1993 the panel found that the applicant had formed an entrenched view that he wanted to go to the Milton Heights accommodation and again recommended that the applicant be placed at that accommodation. The social services committee declined to accept this recommendation and decided to place the applicant at other accommodation. As a result, the applicant revived his application for judicial review to challenge the local authority's decision.
Held – quashing the local authority's decision: The residential accommodation which the local authority were required to provide under s 21 of the National Assistance Act 1948 should be accommodation which was appropriate to the needs of the individual applicant:
see s 47 of the National Health Service and Community Care Act 1990. The applicant's needs properly included his psychological needs and in the present case the evidence was all one way that the applicant's entrenched wish to go to the accommodation at Milton Heights was typical of and caused by the Down's Syndrome and was part of his psychological needs. The local authority, acting through their social services committee could not overrule the decision of the review panel without a substantial reason and without having given the panel's recommendation the weight it required. It was a decision taken by a body entrusted with the basic fact finding exercise under the complaints procedure. It was arrived at after a convincing examination of the evidence, particularly the expert evidence. The evidence had, as to the practicalities, been largely one way. The panel had directed themselves properly in law and had arrived at a decision in line with the strength of the evidence before them. They had given clear reasons and they had raised the crucial factual question with the parties before arriving at their conclusion. The strength, coherence, and apparent persuasiveness of that decision had to be addressed head-on if it were to be set aside and not followed. These difficulties were not faced by the local authority's officers nor by the social services committee. Not to face them was either unintentional perversity on their part or showed a wrong application of the legal standing of that decision. Anybody required at law to give reasons for reconsidering and changing such a decision must have good reasons for doing so and show they had given that decision sufficient weight. The social services committee had here failed to do so and their decision must be quashed.
Statutory provisions referred to:Local Authority Social Services Act 1970, s 7B.
Local Authority Social Services (Complaints Procedure) Order 1990.
National Assistance Act 1848, s 21.
National Health Service and Community Care Act 1990, ss 47 and 50.
Case referred to in judgment:[Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680].
James Richardson for the local authority.
Robert Carnforth, QC and Ian Glen for the applicant.
Judgment Mr Justice Henry.The applicant, M, who is now 22, suffers from the congenital condition Down's Syndrome. He applies (through his mother and next friend) for judicial review of the county council's social services committee's decision of 24 January 1993 that:
"1. The committee agrees to sponsor [M] to the level needed for placement at Berwick Lodge, which is £6,120 per annum at the present time, as it considers that this is a reasonable placement to meet [M's] needs. If this placement is not acceptable to [M], this funding can be used for his placement at some other establishment of his choice; and
2. That this will not be a precedent in any way for subsequent application in future and each case will be separately assessed and determined on its own
merits."
His complaint is that, as the council's review panel found, his needs require him to be accommodated at an establishment run by the Home Farm Trust at Milton Heights which would cost approximately £3,000 a year more.
The matter has a long history. In Sepember 1989 M began with what was intended to be a two-year placement at Lufton Manor Rural Training Unit. The purpose of that placement was to assess M's needs. The placement officially expired in Autumn of 1991, though M has been kept on there during the pendency of the judicial review proceedings.
There was originally a dispute as to the provision by the council of the top-up funding for Lufton Manor, but that was resolved. At some time in late 1990 or early 1991, M's parents were introduced to the Home Farm Trust at Milton Heights.
In June of 1991, Milton Heights offered M a place.
In December of 1991 he spent three weeks there. Since that last date M and his family have been set on his going to Milton Heights after Lufton Manor.
But Milton Heights was an "out of county" placing. In July 1991 M's parents applied for the necessary topping up funding in order to send him there. That was refused by the respondents' area general manager in July 1991 and his decision was upheld by the casework sub-committee of the social services committee in Sepember 1991.
At this time, the respondents were favouring an institution called Concorde Lodge as meeting M's needs. M's general practitioner visited it and reported adversely on it, and M himself visited it and was very distressed by the experience. On his return from this visit he smashed his hi-fi system, he stated he did not want to live there and, if made to live there, would run away.
It appears that at that time the respondents were assessing his needs on the basis of "mild learning difficulty". The respondents now accept that a better description would be that advanced by Miss Fox, the psychologist instructed by the parents, as "functioning at the upper end of the severely learning disabled range of intelligence". All now agree that, with the wisdom of hindsight, the Concorde Lodge visit was a mistake.
On 13 Sepember 1991, the social services casework sub-committee found that Concorde Lodge met M's needs. M's parents then exercised their rights on M's behalf to request that a review panel be set up to hear the matter under s 7B of the Local Authority Social Services Act 1970.
By the time of that review, following M's unfortunate visit to Concorde Lodge, the council were proposing two other alternatives; one being Eastfield Avenue, Bath. M's mother did not regard either of these as acceptable.
On 7 January 1992, there was a review panel before an independent chairman (Professor Parsloe) and two members of the county council. That review panel unanimously agreed to recommend to the council:
"That, although the proposed placement at Eastfield Avenue might adequately
meet [M's] needs, the department should exercise its discretion and provide funding for the placement at Home Farm Trust."
The decision letter went on to say:
"The panel believe that there would be a real risk of regression if [M] does not move into an environment which provides continuity with the one he has experienced at Lufton Manor.
"The panel did not believe that [M] needed a further period of assessment.
"The panel expressed concern about the discrepancy between the departmental assessment on which an in-county placement was proposed and the independent assessments available to the panel, with particular regard to the difference in the appreciated level of [M's] disability. The panel felt that while Eastfield Avenue might be acceptable in many ways, it would be unable to provide safely for the level of independent physical activity to which [M] is accustomed and seems to need."
That recommendation went before the social services committee on 27 January 1992, and that committee rejected the recommendation. It expressed the view that:
"It is appropriate to meet [M's] needs by placement at the Eastfield Avenue Hostel, together...
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