High Court finds council in contempt of court over failure to comply with mandatory injunction on placement planning for autistic young man

A High Court judge has found Cardiff City Council in contempt of court over its failure to comply with a mandatory injunction in a case concerning future placement planning for a young man with a range of diagnoses including autistic spectrum disorder and severe communication and learning difficulties.

The claimant’s legal team had applied to initiate contempt proceedings against the council on the basis that the local authority had:

• failed to comply with a mandatory injunction set out at paragraph 5 of the order of his Honour Judge Keyser QC [the December Order], on the basis that the defendant did not as of 7 January 2022 and still had not completed future placement planning for the claimant;
• failed to comply with paragraph 6(a) of that order in that no sworn affidavit had been filed by the relevant director of the Defendant explaining the breach of the injunction.

The background to the case was judicial review proceedings brought by the claimant’s mother on his behalf. Cardiff did not defend the claim, conceding to both grounds advanced and acceding to a declaration that it had unlawfully failed to prepare, maintain and/or review a care plan within a reasonable period of time.

The wording of Judge Keyser’s order of 20 December 2021 was as follows:

AND IT IS FURTHER ORDERED THAT:

…

5. The Defendant do by 4pm on 7 January 2022 complete future placement planning and produce a care and support plan for the Claimant.

6. In the event that the Defendant breaches the injunction in paragraph 5 of this Order, the requirements of this paragraph shall have effect:

(a) The Director of Social Services of the Defendant must by 4pm on 7 January 2022 file and serve an affidavit explaining the circumstances in which the Defendant failed to comply with paragraph 5;….

On 7 January 2022, Cardiff sent the claimant a letter (by email) stating that it was enclosing by way of service the local authority's future placement planning documents and accompanying care and support plan pursuant to the order dated 20 December 2021.

The Care and Support Plan was in precisely the same terms as the version dated 17 December 2021, that had been adduced in evidence before the court at the hearing on 20 December 2021, save for a range of amendments.

There then followed a dispute between the claimant’s legal team and the council over whether the local authority had complied with the 20 December Order.

In JS v Cardiff City Council [2022] EWHC 707 (Admin) Mrs Justice Steyn made five observations:

1. The court had imposed, by paragraph 5, a final mandatory injunction.
2. The final mandatory injunction was made in circumstances where the council had given an undertaking on 22 July 2021 to "conclude" future placement planning for the claimant and to produce a care and support plan by 29 October 2021: paragraph 1(4) of the preamble to the consent order. “The injunction reflects, although it is not in precisely the same terms, paragraph 1(4) of the consent order, save to the extent that the order contains no requirement to prepare transition and activity plans, and the date imposed by the order is 10 weeks later than the date given in the undertaking.”
3. The final mandatory injunction was in precisely the same terms as an interim mandatory injunction imposed by an order of 12 November 2021 by Judge Lambert, save to the extent that the council was given a further 17 days to comply.
4. The order imposed an obligation of result, not merely an obligation to make reasonable efforts to comply.
5. Breach of a mandatory injunction was a serious matter which may result in proceedings for contempt. “In this case, in circumstances where the council contended it was not in a position to comply with the mandatory injunction by the date set in the order of 12 November 2021 and sought an additional period of more than four months for compliance (which the court was not prepared to grant), paragraph 6 of the 20 December order expressly provided for the possibility of breach, both by requiring an explanation in an affidavit from the Director and making abundantly clear that the council potentially faced contempt proceedings if it failed to comply with the order of 20 December.”

In her ruling Mrs Justice Steyn rejected suggestions that paragraphs 5 and 6(a) of Judge Keyser’s order were ambiguous.

Turning to whether the council had failed to comply with paragraph 5 of the December Order, the judge said that insofar as paragraph 5 required Cardiff to produce a care and support plan for the claimant by 7 January, she rejected the claimant's contention that the council had failed to comply.

“The council produced a care and support plan by the specified date. The amendments to the draft that had been before the court on 20 December 2021 were limited (although not as limited as the claimant contended). However, the claimant's arguments that the care and support plan produced was unlawful are not matters that can fairly be determined on this contempt application. The particulars of contempt do not include an allegation of failure to produce a (lawful) care and support plan. Nor was the council put on notice in the contempt application of the ways in which it is alleged the care and support plan is defective.”

However, Mrs Justice Steyn went on to say that in her judgement it was “manifest that the council did not comply with the requirement to complete future placement planning by 4pm on 7 January 2022, and indeed has still not done so”.

The judge said that, by 7 January, the council had made some progress. It had identified two placements that it was willing to fund, that it considered could meet the claimant's needs, which had vacancies and one of those placements had confirmed their view that they could meet the claimant's needs. The other potential provider had not reached the same stage by 7 January, as they were still exploring the issue of compatibility with another resident.

“As the evidence makes clear, the council was still in the process of identifying other potential placements. No determination had been made as to the placement that would be in the claimant's best interests,” Mrs Justice Steyn said.

“Perhaps the most stark proof that placement planning is not complete is that on the Care and Support Plan dated 6 January 2022, the box marked ‘Provider’, where the provider of the claimant's full-time, learning disability residential placement should be named, remains blank.”

Contrary to [the allocated social worker’s] evidence, future placement planning is not complete ‘once the available options are identified’, prior to any determination of the future placement for the claimant being made, the judge said.

“It is plain not only from the words of the December Order, but also from the context of the earlier Consent Order, that the parties well understood that identification of available options is a stage prior to the completion of future placement planning. Moreover, even on the interpretation of paragraph 5 put forward in [the allocated social worker’s] evidence, the obligation was not complied with because the council was still in the process of identifying the available options.”

Mrs Justice Steyn said it was “clear beyond all question” that the council had failed to comply with the requirement to complete future placement planning for the claimant by 4pm on 7 January 2022.

She added: “I appreciate that the determination of the claimant's future placement does not lie solely in the hands of the council. The need to seek to agree a placement with the claimant's parents, and in particular his Deputy, had the potential to create difficulty in complying with paragraph 5 of the December Order even if the council had completed the process of identifying available suitable options to be considered at a best interests meeting prior to the 7 January. In the absence of any application to the court to vary the terms of the December Order, any difficulty of compliance goes to penalty, not to the question whether the council has committed a contempt of court.”

Mrs Justice Steyn said it followed from her finding that Cardiff had failed to comply with the order to complete future placement planning by 4pm on 7 January 2022 that the obligation in paragraph 6(a) to file and serve an affidavit of the Director was triggered.

“No such affidavit was served, within time or at all, as is common ground. It is clear beyond all question that the council has failed to comply with paragraph 6(a),” she said.

The judge rejected the council's contention that there was no breach because it believed it had complied with paragraph 5. “Any belief on the part of the council that the obligation in paragraph 6(a) had not been triggered goes only to penalty, not to the question whether the council has committed a contempt of court.”

Mrs Justice Steyn concluded: “Applying the criminal standard of beyond reasonable doubt, I find that Cardiff City Council has breached both paragraphs 5 and 6 of the Order made by this Court on 20 December 2021 and is in contempt of court. Any breach by anyone of a court order is always a matter of the utmost gravity. The matter is all the more grave when the breach is committed by a public authority.”

She said that in this case, the contempt of court came against the background of, first, the council having breached the undertakings to the court given in the consent order sealed on 23 July 2021; and second, the council having failed to take the necessary steps to put itself in a position to comply with the interim mandatory injunction, or to apply to vary it, and being saved on the day before compliance was required from an inevitable breach of that order only by the order that the council had now breached.

The judge said: “This is appalling. The council has failed to take the urgency of the situation, or the vital importance of complying with court orders, seriously. The strong impression that that is so is powerfully reinforced by the failure to file and serve an affidavit made by the Director.

“Even if [the claimant's social worker] mistakenly believed that the steps the council had taken sufficed to comply with paragraph 5, it is frankly astonishing against the background that I have described, and even when faced with a contempt application, that no senior officer of the council has come forward to give evidence. The explanation that [the claimant's social worker] is better placed, as the individual directly involved, to explain the steps the council has taken is unsatisfactory: it is no answer to the obvious need for a senior officer to take responsibility for the council's failings in this case.”

The judge said she would hear the parties on the question of the appropriate penalty (if any) for the council's contempt and on what further order (if any) needed to be made to ensure that a suitable placement that was in the best interests of the claimant was identified swiftly.

Mrs Justice Steyn said she bore in mind that in R (Bempoa) v London Borough of Southwark [2002] EWHC 153 (Admin), Munby J had concluded that the gravity of that local authority's contempt could be adequately marked by the delivery of the court's judgment in public. “The 'public humiliation' of a judgment the contents of which publicly shamed the local authority was a greater penalty than the exaction of a financial penalty which could only be to the financial disadvantage of the inhabitants of the local authority area, and those who rely upon the authority for the services it provides, without providing any corresponding financial benefit for the claimant.”

The High Court judge said: “The contents of this judgment shame Cardiff City Council. Whether any further penalty is appropriate in this case is likely to depend, amongst other matters, on whether an apology is forthcoming and on the strenuousness of the efforts the council now makes to comply with the mandatory order which remains in effect.”

Cardiff Council has been approached for comment.