ZZ (a protected party, by his father and litigation friend, ZY) v Croydon Council

Hearing date: 22 July 2025

Approved Judgment

This judgment was handed down remotely at 2:00pm on 24 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

In this judicial review application the Claimant challenges the Defendant's decision dated 19 September 2024 regarding his care needs under the Care Act 2014 (‘the Care Act’). This application is brought on behalf of the Claimant, by his litigation friend, the Claimant's father.

In an Order dated 27 February 2025, David Pittaway sitting as a Deputy High Court Judge ordered anonymity, and I maintain the Anonymity Order for the same reasons.

The Claimant is 33 years old and has Early Infantile Epileptic Encephalopathy. He has a severe learning disability, epilepsy, autism, sensory processing difficulties and mild cerebral palsy. He presents with challenging behaviour on a daily basis which is unpredictable and, even with skilled management, often results in irreversible damage to property and injury or risk of injury to his carers. He requires continuous care and support. The Defendant has responsibility for meeting the Claimant's needs pursuant to the Care Act.

Relevant procedural history

The Defendant filed Summary Ground of Resistance on 16 January 2025, but has not complied with directions to file Detailed Grounds of Defence (‘Detailed Grounds’) following the grant of permission in the Order dated 27 February 2025.

The Order also granted an Anonymity Order and required by 4pm on 7 March 2025 the Defendant to provide support to the Claimant in the form of direct payments sufficient to fund 2:1 support during all waking hours, 3:1 support for time out of the house and 1 waking night member of staff (including adequate funding for carers to undertake training and to provide staff cover for absences and time for recording of care needs until further order). The Defendant did not implement the support provided in the mandatory Order by 7 March 2025, and only after the Claimant notified the Defendant of an intention to make an application for enforcement of the mandatory order, the Defendant made a first payment on 17 March 2025.

On 13 May 2025, a hearing date was fixed for 22 July 2025. The Defendant's Detailed Grounds and any evidence on which the Defendant intended to rely were originally due on 15 April 2025. The Defendant made a number of applications for an extension of time to file and serve its Detailed Grounds and evidence, four of which were granted with the ultimate deadline being 1 July 2025. A fifth application, dated 25 June 2025, was refused in an Order dated 4 July 2025, in which it was observed that this was the fifth application for an extension of time made by the Defendant. The judge noted the danger of imperilling the trial date and the absence of any good reason for the extension sought. The Order made it clear the Detailed Grounds, and any evidence relied on, had to be served forthwith, so that this trial can be effective. No Detailed Grounds or evidence has been filed by the Defendant.

There was no update or indication by either party as to what the Court was being invited to do, in the absence of a Detailed Defence and / or skeleton arguments, until the day before the hearing when the Claimant filed his skeleton argument, which was quickly followed by the Defendant's skeleton argument. The Defendant for the first time confirmed to the Court its overarching concession that the decision under challenge is unlawful for all the reasons set out in the Claimant's Statement of Facts and Grounds (‘SFG’), and should therefore be quashed, following which the Defendant will conduct a fresh assessment and produce a new care and support plan. The Defendant also agreed that in the meantime, the Claimant should be fully protected by continuing to be provided with the package of support that is required pursuant to the interim Order made earlier in these proceedings.

The Defendant has explained that the delay largely related to a hope that it could completely settle the claim, but has conceded an absence of satisfactory explanation for the whole of the delay and the breaches of Orders.

Given the Defendant's concessions in the skeleton argument the day before the substantive hearing, I invited the parties to draft a Consent Order with an attached Statement of Reasons, which were submitted shortly before the hearing. The parties were able to reach significant agreement save on the issues of damages and costs.

Issues in dispute

At the beginning of the hearing I indicated I was minded to approve the terms of the draft consent order for the reasoning outlined in detail in the draft Statement of Reasons, save that I would hear submissions on the remaining disputed issues: damages and costs. The Statement of Reasons is unusually lengthy and detailed but in the particular circumstances of this case, I am satisfied that this is justified. The parties have been in disagreement for a lengthy period of time and have finally agreed to focus on a constructive way forward. The chronology and concessions within the Statement of Reasons should contribute to ensuring that future assessments do not repeat public law errors and the Claimant can receive a lawful level of care to meet his needs.

Ms Kelly relied upon her skeleton argument and a supplementary document addressing the issues in dispute unresolved within the draft Consent Order. She invited the Court to order damages and to award indemnity costs. Mr Tankel submitted that any claim for damages should be made in the County Court, which was the more appropriate forum to determine damages in circumstances such as these, where the public law claim had been finally determined.

When responding to Mr Tankel's submissions, Ms Kelly initially asked me to provide a reasoned judgment on ground 1, which alleged a breach of s. 18 of the Care Act. Ms Kelly submitted that during the course of oral submissions Mr Tankel appeared to resile from the concession that ground 1 was made out. However upon further considering the matter and the parties agreeing to my suggestion to tighten the wording of the Statement of Reasons, both parties accepted the issues in dispute were limited to damages and costs.

Statement of Reasons

I have considered the proposed amendment to the Statement of Reasons at [16], in the light of the agreement reached at the hearing, which now states as follows:

“The Defendant concedes that its assessment and care plan are unlawful for the above reasons. The Defendant concedes that given 15(a)-(c) above, its care plan breached s.18 and was therefore unlawful, and that s.18(1) Care Act duties were not discharged by s.18(7). There was no issue before the Court as to the date from which the Defendant ought to have met those needs, which remains an open question.”

In my judgment this adequately reflects the essence of ground 1 in the SFG and is appropriate. I am grateful that the parties, no doubt with the assistance of Counsel, have been able to promptly deal with the concern that arose during the hearing.

Ms Kelly raised a second concern regarding [18] of the Statement of Reasons, which states:

“The Defendant's decision is unlawful because it fails to have regard to the evidence of care being provided on a 2:1 basis or 3:1 basis. There remains an evaluative question for the Defendant to consider a suitable level of care, having regard to all the relevant evidence, including but not limited to that of the Claimant.”

In the event the parties were unable to agree a different form of wording, and it was confirmed on behalf of the Claimant that [18] of the Statement of Reasons remains agreed as originally drafted. Again I am satisfied that this is sufficiently clear and adequately reflects the nature and extent of the issue conceded by the Defendant.

I entirely agree that the Defendant's assessment and review dated 19 September 2024 was unlawful for the reasons outlined in the amended Statement of Reasons. The Defendant has clearly acknowledged that as it filed no substantive defence or any evidence, the reasons for the conceded unlawfulness should carefully track the Claimant's pleaded case. I note the Defendant has highlighted that the Court should not make substitutionary findings as to the Claimant's level of need or the care and support that is required to meet that need, that being a matter of evaluative judgement for the Defendant upon further assessment.

The parties have been able to distil the Claimant's grounds into clear public law errors, which will also assist the Defendant's staff in its future assessment. I agree with that approach, which reflects well-established principles. In claims involving challenges to...