High Court finds council in breach of duties to disabled child

The High Court has found that the London Borough of Hackney acted unlawfully in relation to the social care needs of a 13-year-old child.

In TS, R (on the application of) v The London Borough of Hackney [2023] EWHC 3063 (Admin), Jonathan Glasson KC, sitting as a Deputy Judge of the High Court, quashed the council’s assessment and care planning decision, concluding that the decision making in relation to the care package was “flawed”.

Hackney was ordered to pay all of the legal costs of the proceedings, and has agreed to provide two nights per week of overnight respite to the child’s family pending a new assessment and care plan.

The judge noted that the claimant, “TS”, is a “significantly disabled” child, who lives at home with her parents and brother. Both of TS’s parents themselves have a number of significant medical problems.

TS has a diagnosis of William's Syndrome, described as a “rare and complex” condition, which can cause sensory issues, difficulty forming relationships with peers and being prone to anxiety and depression.

Children with William's Syndrome also often experience a number of associated health issues, said the judge.

The claimant sought to challenge by judicial review the council’s “Child and Family Assessment” dated 17 February 2023, and its “Care Package Panel-Review” decision dated 28 March 2023.

The three grounds of review submitted on behalf of the claimant were as follows:

(a) The Defendant failed to complete a lawful assessment

(b) The Defendant has breached its duty under section 20(1)(c) of the Children Act 1989; and

(c) The Defendant made an irrational and unlawful service provision generally

The judge noted that the effect of the two decisions under challenge was to reject the request for TS to be accommodated for two nights a week at a specialist residential care provider, and for further additional care.

The family received a copy of the council’s assessment by email on 23 February 2023.

On 2 March 2023, the claimant’s solicitors wrote to the council, noting that the assessment had correctly recorded that the family were at “crisis point” and that additional care needed to be put in place urgently.

The chair of a care panel provided the following explanation as to why it had decided not to increase overnight respite for TS at BS for two nights per week:

“We believed that the solution was not to simply separate TS from her mother for 2 nights a week by increasing the amount of respite, which would result in a sudden significant increase to 104 nights per year from 1 night per month in particular since TS had not been assessed as able to attend [the specialist residential care provider] twice every week.

“That course only focuses on the respite for the mother without addressing the underlying behaviour management and the need to encourage and improve parental management and tolerance.”

The judge noted that in the present case, “the family essentially want a part-week residence at [the specialist residential care provider] under section 20, which is unusual”.

“However the family are not prevented from providing care and accommodation to TS. The real issue is that they want substantially increased regular respite.”

He added: “The local authority believes that it has made suitable and lawful provision for respite and the situation is no different under section 20”.

On ground A, counsel for the claimant argued that a careful consideration of the assessment demonstrated “beyond any real doubt” that there was no analysis of TS’s needs and that, as a consequence, a “realistic plan of action” was not put in place, as required by ‘Working Together’.

Discussing ground A, the judge described the claimant’s criticisms as “well-founded”.

He said: “The Assessment stated that the family were at ‘crisis point’. The Panel Decision noted that Mrs LS was ‘at her limit’ and repeated again that the family were at ‘crisis point,.

“Mr Sinai [for the council] made clear that that description was accepted by the Defendant as being accurate. Despite that fact, however, the Assessment did not spell out (either explicitly or indeed implicitly) how that ‘crisis’ was going to be solved.”

The judge concluded that the documents themselves demonstrated that there was a failure to analyse and to assess TS’s needs, as required by Working Together.

The judge allowed Ground A, that Hackney failed to complete a lawful assessment.

On ground B, the judge noted that there was “no dispute that there is no express reference in the Assessment or the Review to consideration as to whether or not the section 20(1) duty had arisen”.

“However, the parties disagree as to the significance of that omission”.

The parties’ joint position was that the Ground gave rise to two issues for determination:

(a) Did the Defendant fail to determine whether the section 20(1) duty had arisen in the claimant’s case at the time of the Assessment and Review?

(b) If the Defendant has now decided that the section 20(1) duty has not arisen, is this decision irrational.

On part a, the judge noted that there was “no reliable basis” to conclude that the council did consider whether or not its duty under section 20(1) was engaged. He allowed the ground on this aspect.

However, on part b, he said: “There are certainly features of the evidence that would suggest that the section 20(1) duty was engaged, but the issue is far from being clear cut.

“On one view the Assessment and the Panel Decision would suggest that the family, whilst in crisis, are not yet prevented from providing TS with accommodation or care. The difficulty here however is that because of the flawed nature of the decision making by the Defendant it is not possible to conclude that a lawful assessment would inevitably have led to the conclusion that section 20(1) was engaged.”

He concluded on part b of ground B: “In my judgment on the basis of the evidence available to the Defendant at the time of the decisions I am unable to find that the only rational conclusion available to the Defendant was that section 20(1) was engaged. Accordingly, I do not find in favour of the Claimant on that aspect of Ground B.”

Finally, on Ground C, the parties again agreed that this gave rise to two issues:

(a) Is the Defendant’s care package for the Claimant irrational?

(b) Has the Defendant breached its duty to provide a “realistic plan of action” as to how the Claimant’s need will be met.

Discussing Ground C, the judge said: “I have already found that there was a failure to follow Working Together and that the decision making in relation to the care package was flawed.

“To adopt the language of Sedley J in R v Parliamentary Commissioner for Administration ex p Balchin [1998], this is a ‘decision that does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic’. Consequently, it could not be described as a ‘realistic plan of action’.”

He concluded that the claimant therefore succeeded on Ground C because of the “flawed process” by which the decision was reached.

The Deputy High Court judge quashed the council’s assessment and care planning decision. He added: “In my judgment it would be in both parties’ interests now to move forward to resolving the care needs of TS without recourse to litigation”.

TS was represented by Alex Rook and Rosie Campbell of Rook Irwin Sweeney and Scott Moncrieff & Associates, and Steve Broach and Ella Grodzinski of 39 Essex Chambers.

Alex Rook, solicitor for TS’s family, said “We are of course delighted for TS and her family that the High Court has today declared that Hackney have acted unlawfully in relation to meeting her needs. TS’s parents have consistently stated that they are at crisis point, and Hackney’s assessment simply failed to properly grapple with that reality. It is very unfortunate that court proceedings had to be issued, but we hope that Hackney will now properly engage with the family in order to meet their needs.”

Mayor of Hackney, Caroline Woodley, said: “We would like to apologise to the child and their family following this judgement. We are in the process of re-assessing this family, in light of the child and family’s evolving needs and the recent judgement. We are committed to working with them to ensure the child’s needs are fully met.

“Hackney Council’s children’s service provides care support to over 300 disabled children in the borough with varying complexities of need. We always endeavour to work with families and communities in order to respond as best we can to their individual circumstances. We will reflect on the learning from this judgement to help us continue to develop our practice.”

Lottie Winson