The Queen (on the application of JF acting through his mother and litigation friend KF) v The London Borough of Merton
| Jurisdiction | England & Wales |
| Judge | Anne Whyte |
| Judgment Date | 30 June 2017 |
| Neutral Citation | [2017] EWHC 1519 (Admin) |
| Date | 30 June 2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5266/2016 |
[2017] EWHC 1519 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Anne Whyte QC
Sitting as a Deputy High Court Judge
Case No: CO/5266/2016
Mr Alex Line (instructed by John Ford Solicitors) for the Claimant
Mr Benjamin Tankel (instructed by South London Legal Partnership) for the Defendant
Hearing date: 24 May 2017
Approved Judgment
Anne Whyte QC, sitting as a Deputy High Court Judge:
The Claimant has the benefit of anonymity and will be referred to as JF. He has Autism Spectrum Disorder and severe learning difficulties. As a result, he requires adult residential care with specialist support.
INTRODUCTION
By his litigation friend and mother, he challenges what he says is the decision of the defendant Council ("LBM") dated 17 July 2016 to change his residential provision without a lawful statutory assessment of his needs. The Claimant's needs are, on any view, complex.
The Claimant relies upon two grounds of review, contending that:
i) LBM failed to undertake a lawful assessment of his needs in breach of statutory duties under the Care Act 2014 ("the Act") and associated Regulations, namely the Care and Support (Assessment) Regulations 2014 SI 2827 ("the Assessment Regulations"), and the Care and Support (Choice of Accommodation) Regulations 2014 SI 2670 ("the Choice of Accommodation Regulations").
ii) LBM has unlawfully decided to change or to propose to change his accommodation from a college ("the College") in Cheshire, where he has resided since 2012 to a lodge ("the Lodge") in Sussex, a residence run by Sussex Health Care ("SHC"). The Claimant contends that LBM has based its decision to prefer the Lodge unlawfully and predominantly upon a Pre-Admission Assessment dated 26 February 2016 and prepared by the Lodge. That document contains the conclusion that the Lodge is suitable and can adequately meet JF's needs. The Claimant alleges that it is an inadequate basis for moving him from his current accommodation. In order to avoid confusion with the Care Act Assessment, I shall refer to the Pre-Admission Assessment as "the Report".
In reply, LBM deny that the needs assessment was unlawful and deny that any decision has yet been taken about JF's future placement. In oral submissions, LBM also disputed that it had yet made a final decision as to whether the Lodge could suitably meet JF's needs, submitting orally that such decisions are made at a funding panel level. LBM concedes that as in 2016, only two options remain available, namely the College or the Lodge. The cost of accommodating JF at the former is appreciably more expensive than at the latter.
The dispute over whether LBM has actually made any reviewable decisions means that my summary of the background facts is more detailed than it might otherwise have been.
Permission for Judicial Review was granted by Ms Karon Monaghan QC sitting as a Deputy High Court Judge on 20 December 2016. In granting permission, she observed that in respect of Ground 1, it was (just) arguable that the Care Act Assessment was inadequate but that this issue would inevitably need to be considered in respect of Ground 2 and that:
…..it seems clear enough that it has been decided to terminate the Claimant's current placement and the only alternative placement that has to date been identified is the one in which the Claimant (through his mother) objects. In that sense the claim is not premature.
The Claimant seeks a declaration that the Care Act Assessment and decision to terminate his current placement are unlawful and that it would be unlawful for LBM to move JF to Aspen Lodge. The Claimant also seeks an order quashing the assessment and decision to move him and an order requiring LBM to undertake a re-assessment of needs.
By way of application dated 22 May 2017 LBM sought to extend time for service of a witness statement from a witness called Claire Singer. She is employed by the defendant as a social worker and was the allocated social worker for JF between the dates of 28 April 2015 and 15 July 2016. She was therefore his social worker at the time of the events which form the subject matter of this judicial review. Given the significance of this case to the parties, I decided to admit the evidence with the proviso that a lack of documentation supporting some of its contents might weaken the weight that could be attached to it.
BACKGROUND FACTS
JF is now 24 and is very vulnerable. His parents were appointed his Deputies in 2015. They are fully involved in his life and welfare. They make and wish to make an important contribution to decisions relating to their son's care and support.
The complexities of JF's needs are set out in a large number of documents contained within the bundles, including witness statements submitted by his parents and social workers and various medical reports, all of which I have considered. I have paid close attention to the statements of his parents who of course, in addition to their own natural engagement with these issues, have been appointed to represent their son's views. There is little scope for dispute about JF's condition, which I shall briefly summarise. He faces many challenges. He is non-verbal and requires alternative communication techniques to assist with his basic communication. He is highly anxious and this is exacerbated by any change to his routine or environment, however minor. His emotions and behaviour can be disinhibited and he regularly tries to abscond. He is at risk of self-harm. He requires a high level of constant specialist care within a specialist residential setting. Ordinarily he requires 1:1 supervision but when he is away from the College and in the community, he requires 2:1 assistance and support. It seems to be agreed that he needs different types of therapies including speech and language ("SALT"), physiotherapy, occupational therapy ("OT") plus psychiatric input. He has previously suffered from dysphagia and any supervision of his eating needs to bear this in mind. He requires some assistance with his personal hygiene though this varies considerably. There is no dispute that the College has appropriately met his needs to date. LBM has in fact funded JF's access to an on-site multi-disciplinary team ("MDT") for some 15 years. Such a team includes occupational therapists, SALT therapists etc. The particular benefits of his current placement include rapid access to this on-site multi-disciplinary team (especially in response to a crisis), the provision of a Total Communication Environment ("TCE") and the access to alternative communication methods, in which the staff are trained, such as Picture Exchange Communication System ("PECS").
His parents feel that it is notable that JF has not been detained under the Mental Health Act 1983 and attribute this to the quality of care at the College. They are concerned that any transition to another accommodation and in particular to the Lodge will not only risk a serious reversal of the slow progress that JF has made at the College but that it will harm his emotional, physical and psychological well-being and place him at a higher risk of being made subject to a MHA detention order.
A draft Care Act Needs Assessment was prepared in late January 2016 and sent to JF's parents in March 2016. It stated that the placement at the College was due to terminate at the end of March 2016 and that an alternative 52 week residential placement would be identified. In the final section it said:
"Information has been provided to [JF's parents] that options need to be considered for JF, we are aware of their preference, however options are being identified and need to be considered. Information has been provided on Sussex Health Care who would be an appropriate provider to meet JF's needs"
I asked Mr Tankel, who appeared on behalf of the defendant, what had prompted the process of conducting the Needs Assessment in 2016 as it was not evident from the papers. I was informed that it had been considered that JF was reaching a "transitional" age-related stage in a context where the College was in fact a college although it does have an adult provision. Later in submissions, Mr Tankel also referred to the fact that LBM wished to provide less expensive accommodation for JF because it had been assessed that he did not need on-site multidisciplinary access. No evidence was placed before me to support these assertions. I was not informed when such views had been formed or by whom.
LBM asked JF's parents to visit the Lodge in order to consider its suitability. They visited on 3 February 2016 and came to the conclusion that it could not meet JF's needs despite the fact that the Lodge is a specialist provision for those with Autistic Spectrum Disorder.
On 4 June 2016, over three months after its preparation, LBM sent JF's parents the Report prepared by SHC, the entity responsible for operating the Lodge. The document explained that it was designed to identify the needs of each service user at the pre-admission stage. The authors concluded on the penultimate page of the document that SHC was capable of providing a placement for JF. It was noted that funding had not yet been agreed by the purchasing authority, i.e. by LBM.
Accordingly, by June 2016 the situation appears to have been that
i) LBM had said that JF's placement would terminate;
ii) LBM planned to move JF;
iii) an alternative service provider (SHC) had deemed itself by 26 February 2016 a suitable provider to meet JF's needs;
iv) LBM agreed that SHC could meet those needs; but
v) LBM had not yet authorised funding for the new placement.
As far as I can tell, none...
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