The King on the application of TS (A Child acting by her Mother and Litigation Friend LS) v The London Borough of Hackney
| Jurisdiction | England & Wales |
| Judge | Mr Jonathan Glasson |
| Judgment Date | 01 December 2023 |
| Neutral Citation | [2023] EWHC 3063 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1550/2023 |
and
[2023] EWHC 3063 (Admin)
Mr Jonathan Glasson KC sitting as a Deputy Judge of the High Court
Case No: CO/1550/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Stephen Broach and Ms. Ella Grodzinski (instructed by Mr Alex Rook of Scott-Moncrieff, Solicitors) for the Claimant
Mr Ali Reza Sinai (instructed by London Borough of Hackney Legal Services) for the Defendant
The Interested Party did not appear and was not represented.
Hearing date: 14 th November 2023
Approved Judgment
This judgment was handed down remotely at 10.30 a.m. on 1 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mr Jonathan Glasson KC SITTING AS A DEPUTY JUDGE OF THE HIGH COURT:
The Claimant, “TS”, is a significantly disabled child who brings this claim for judicial review by her mother, “Mrs LS”. The claim is brought against the London Borough of Hackney (“the Defendant”). The interested party, Bayis Sheli (“BS”) is a specialist residential care provider that is able to meet TS's religious and cultural requirements. The interested party has taken no part in these proceedings and was not represented at the hearing, although a representative of BS was in attendance.
The identity of the Claimant was made subject to an anonymity order by Lang J on 28 April 2023 and at the hearing I ordered that anonymity should be continued.
The Claimant seeks to challenge by judicial review the Defendant's “Child and Family Assessment” dated 17 February 2023 (“the Assessment”) and its “Care Package Panel-Review” decision dated 28 March 2023 (“the Panel Decision”). There are three grounds of review:
(a) The Defendant failed to complete a lawful assessment (“Ground A”);
(b) The Defendant has breached its duty under section 20(1)(c) of the Children Act 1989 (“Ground B”); and
(c) The Defendant made an irrational and unlawful service provision generally (“Ground C”)
The effect of the two decisions under challenge was to reject the request for TS to be accommodated for 2 nights a week at BS and for further additional care.
For the purposes of the hearing, I was presented with a bundle of documents and correspondence as well as a bundle of authorities. Both parties submitted skeleton arguments in advance of the hearing and made detailed oral submissions. I am grateful to all counsel as well as those instructing them for their assistance.
The judgment is divided into the following sections:
a) Procedural background and two preliminary issues
b) The factual background
c) The impugned decisions
d) Events subsequent to the impugned decision and evidence filed.
e) The legal framework
f) The grounds of challenge
g) Disposal and relief
a) Procedural background and two preliminary issues
The Claimant issued the claim for judicial review on 28 April 2023. When doing so the Claimant made an application for urgent consideration and for anonymity. The same day Lang J granted anonymity, certified the claim as fit for expedition and ordered an abridged timetable for the Defendant to file its Acknowledgment of Service and its response to the application for interim relief.
Mr Dexter Dias KC, sitting as a Deputy Judge of the High Court, refused permission for judicial review and the application for interim relief on 7 June 2023. However, on 11 July 2023, Mr Richard Clayton KC, sitting as a Deputy Judge of the High Court, granted permission and also ordered interim relief following an oral hearing. The Deputy High Court Judge ordered that until final determination of the claim or future order the Defendant should accommodate TS at Bayis Sheli on two nights per week.
Two preliminary issues were raised at the start of the hearing.
First, the Claimant made an application on 23 October 2023 for permission to rely upon the 6 th witness statement of LS, the Claimant's mother. That was unopposed by the Defendant and as the statement provided a helpful updating account, I granted the application.
The second procedural issue concerned an objection that was made to the final sentence of paragraph 14 of the Defendant's Skeleton Argument, filed on 1 November 2023, which stated: “TS clearly understands her current split residence because she ticked the boxes of the attached sketch for the social worker during her meeting at which she said that she does not want to remain at BS for longer periods”. Objection was also made to the sketch that was attached to the Skeleton Argument and which was also referred to in paragraphs 37 and 70 of the Skeleton Argument. The Claimant's solicitors had promptly objected to those references in a letter dated 2 November 2023 where they argued that it was wrong to introduce “new and highly prejudicial evidence via the skeleton argument, without any evidence from your client to support that position”. The Claimant's solicitors also drew attention to the evidence of Dr Keir Shiels, Consultant Paediatrician at Great Ormond Street (discussed in more detail below) as to the reliability or otherwise of what TS was reported to have said. On 10 November 2023 the Defendant's solicitors responded in an email setting out details of a visit by Ms Pereira, the family social worker, to see TS at her school when the sketch was drawn. It was argued that there was “no need to file yet further evidence at this late stage”.
In my judgment, if the Defendant wished to rely on the sketch and the social worker's account of that meeting then the Defendant should have filed a witness statement. In any event, I regard what was reported to the social worker to be at best marginal relevance to the issues before the Court in this judicial review which is focused on the lawfulness or otherwise of the two impugned decisions. Moreover, what TS may or may not have said to Ms. Pereira has to be seen through the prism of an understanding of TS's medical conditions.
(B) The Factual Background
TS is now aged 13 and is significantly disabled. She lives at home with her parents and her brother (“AS”). TS's family are members of the Charedi (sometimes referred to as Orthodox) Jewish community in North London. She had six siblings, but her sister died approximately seven years ago having been born with hydrocephalus and Hypoxic Ischemia. Four of TS's siblings have left home but her brother, aged 14, also lives at home. Both of TS' s parents themselves have a number of significant medical problems.
TS's medical condition
TS's medical condition was summarised in the Panel Decision:
“[TS] is a child with a diagnosis of William's Syndrome which is a rare and complex condition. Children with William's Syndrome experience a range of difficulties, including sensory issues, difficulty forming relationships with peers and being prone to anxiety and depression. They also often experience a host of associated health issues, for example, cardiac issues, kidney problems, difficulty with sleep, growth, puberty and joint issues, problems with fluid and food intake, prone to urinary tract infections and constipation. [TS] receives input from a number of health professionals at a number of NHS trusts including the Whittington Hospital, Great Ormond Street Hospital (GOSH) and Hackney Ark. [TS] has had various investigations, and has numerous check-ups/monitoring appointments e.g. with cardiology, urology and nephrology. A consultant paediatrician at the Whittington Hospital, Dr John Moreiras, oversees and coordinates TS's treatment and care at various trusts and is her lead clinician. He provided the following information about her medical needs for her last review: Diagnoses: 1. Williams syndrome (confirmed deletion at 7q LL); 2. Body segment disproportion; 3. SGA with failure to catch up growth (birth weight 2.5 at 40 weeks); 4. Normal growth hormone response to glucagon stimulation March 2015, peak growth hormone 14.1 mcg/L; 5. Pulmonary stenosis mild (under GOS Cardiology) review; 6. Left kidney positioned at level of left iliac crest with slight malrotation/ left duplex system, no nephrocalcinosis; 7. Transient hypercalcaemia of infancy; 8. Persistent problems with toileting; 9. Concern regarding sleep; 10. Hypothyroidism; 11. Previous history of psoriasis; 12. Genetic surveillance/family history of NF2; 13. Hyperacusis; 14. Dental pain; 15. Puberty Concerns”
Dr Keir Shiels, a Consultant Paediatrician in the Complex Medical Care Service at Great Ormond Street, has treated TS and, in a letter dated 27 April 2023, sets out a helpful account of the complex nature of Williams Syndrome:
“[TS] has Williams Syndrome, which is a very challenging condition. It is rare: well enough described that paediatricians may be aware of its physical features, but rare enough that an average paediatrician may not have had any longterm contact with any child with the condition throughout the first fifteen years of their career. I would not expect GPs, or even many Paediatric Specialists, to have a deep knowledge of the behavioural presentations of Williams Syndrome in adolescence, if they didn't have a patient with the condition ‘on their books’.
Williams Syndrome is so rare that there is no NICE Guideline for its management.
…The behavioural problems that children with Williams Syndrome face are incredibly challenging. Such children have very limited danger-awareness, if none at all. They also exhibit some rather paradoxical behaviours that are challenging to explain in writing: for example,
…
3) The apparent happiness and willingness to please strangers is a significant impediment to accurate behavioural assessment by healthcare professionals....
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