Due process

Local authorities and other bodies often face litigants who are reluctant to engage with the organisation’s complaints and appeals procedures. Georgina Rowley analyses a key High Court judgment on the issue.

In R on the Application of S v Hampshire CC [2009] EWHC 2537, S was a child with Asperger’s syndrome and had severe behavioural problems. Hampshire County Council carried out an assessment of his needs in 2008. The assessment was the subject of a complaint by S’s mother, dealt with under the Council’s complaints procedure. S was re-assessed by the Council in 2009.

Following the assessment the Council resolved to provide certain services to S. S’s mother disagreed with the assessment and the decision made by the Council about the level of service S required. On this occasion she did not bring her concerns to the attention of the Council through its complaints procedure but instead instructed solicitors to apply for a judicial review of the Council’s decision.

Three remedies were sought:

• a declaration that the Council’s Criteria for Services for Disabled Children were discriminatory and in breach of the Disability Discrimination Act, Sections 19-21 inclusive, as they discriminated against children/young adults with severe mental health disorders
• an order setting aside the decision contained in the Council’s assessment of S’s needs that no services were required; and
• a declaration that the failure to provide services to S was irrational and unlawful.

The applicant claimed that the Council was in breach of its statutory duty under s 17 of the Children Act 1989, that its 2009 assessment of S did not conform to mandatory guidance and that the 2009 assessment was discriminatory because it treated those with average or above average intelligence with mental health disorders which are severe and profound less favourably than those of below average intelligence.

The applicant alleged that the Council had failed to have regard to mandatory guidance, namely the Children Act Policy Guidance, and the Children Act Guidelines 2000 Framework for Assessing Children in Need and their Families. In particular it was said that the Council’s core assessment did not identify all S’s known needs, it understated his severe mental health needs and was irrational. It was alleged that the Council has failed to identify an appropriate care plan or to consider what services were required to meet S’s needs, which was unlawful.

The applicant also alleged that the Council’s decision was procedurally unfair as the relevant criteria were not disclosed to S’s mother, and more generally, that there had been a failure to provide appropriate services to S when he was at home with his mother and not at his residential school.

The Council denied the allegations of irrationality and unfairness, it also argued that the applicant had an adequate alternative remedy available to her, namely the Council’s complaints procedure, and she should have utilised this before embarking upon judicial review proceedings. It was noted that the pre action protocol for judicial review claims had not been complied with, no letter before claim had been served and there had been some delay in issuing the application.

Permission for judicial review was refused. It was held that the Council’s assessment of S’s needs were not outside the range of reasonable conclusions available to it. When looking at the assessment process used by the Council the judge stated that in such cases, the Court’s role is not as a decision maker, it is not for the court to decide on the merits of a particular assessment. The only question the court should ask is whether a reasonable decision maker could have come to the conclusion reached by the decision maker in that particular case.

The judge concluded that S’s mother had an alternative remedy available to her, namely the Council’s complaint procedure, and that she should have utilised that remedy prior to making her application, as judicial review is a remedy of last resort. The judge also commented that the fact that there was a complete failure to comply with the pre action protocol and no attempt made to avoid litigation would in itself warrant a peremptory refusal of permission.

Cases such as these are a typical feature of NHS and local authority health and social care provision. It is usual for emotions to run high in such cases and, over recent years, judicial review applications have been increasingly utilised to challenge the clinical assessments made of service users’ needs.

This case illustrates that those who are reluctant to engage with the process prescribed by individual health bodies and local authorities, and who threaten to expose a clinical decision to judicial scrutiny rather than engage with an organisation’s appeals process or complaint procedure where the outcome of a such an assessment does not accord with their own views, may be at risk. The judge’s comments on compliance with the pre action protocol are particularly noteworthy given the propensity of some litigants to issue proceedings without warning.

Georgina Rowley is an associate solicitor at Weightmans (www.weightmans.com).