Smieja, R (on the application of) v London Borough of Bexley

LORD JUSTICE ELIAS: This is a renewed application for permission to appeal after refusal by the single judge.

The background is this. Lara Smieja has autism and learning difficulties. Until July 2014 she attended the Parkwood Hall School, which is a special school for those with moderate to severe learning difficulties. She was a weekly boarder who would return at weekends. A question arose as to what to do when she left that school. Various reports were prepared to assist on that: a social care assessment in April 2013; a learning difficulties assessment in November 2013; and then a review of the social care assessment in May 2014. There were various other documents and reports also considered by the placement approval panel when it met in June 2014. On that occasion, the panel reconvened; they had met a month earlier but deferred the decision in order to allow further information to be gathered, in particular an up-to-date social care assessment. They were concerned that some of the information they had was out of date.

They noted in June 2014 that Lara wished to work with animals and in particular horses. Her parents and her father, being her litigation friend, very much wanted her to go to a residential school, the Fortune Centre of Riding Therapy, which gives a specialist horse-care course and so would appeal to Lara. The panel came to a different conclusion: they recommended a three-day programme at White Rocks Farm. That is a small, specialised centre with a student/teacher ratio of two students to one. In addition, she would be provided with 55 hours of personal assistant support.

The reason the panel rejected the Fortune residential option was that they were of the view that there was evidence that Lara would not be able to transfer the skills that she learnt in that very different environment when she returned to the borough at the end of the placement. The Fortune Centre was not within easy travelling distance from Bexley and it would be difficult for social workers to work with her, to allow access to local services and local employers.

The parents strongly disagreed with this analysis. They indicated that they proposed to take judicial review and they asked for the decision to be reconsidered, which it was on 1 August. The decision was not changed, notwithstanding that there were further additional reports made available, and certain criticisms made of the report on which the local authority had principally, indeed almost exclusively, relied. So the claimant pursued judicial review and the case was heard by Mr Neil Cameron QC. There were a host of grounds advanced. One of them was essentially a Wednesbury challenge: it was submitted that it was simply irrational for the relevant local authority panel to adopt the proposal it did in the light of the information before it.

The judge rejected that argument. He dealt with the point in his conclusions at paragraph 56 of his decision. Essentially he considered that the minutes of the panel meeting on 12 June 2014 and the letter of 1 August set out the basis upon which the defendant had decided the local package was appropriate; there was a rational explanation; there was some evidence to support it; and therefore it could not be said to be Wednesbury unreasonable. He also pointed out that counsel then dealing with the case had not identified any particular element of the decision-making process, save for the fact that it was irrational not to prefer the argument advanced by Lara instead of the argument accepted by the local authority. It is this ground and this ground only which is now pursued on appeal.

I start by observing that as is always the case with a Wednesbury challenge it is very difficult to sustain it, because essentially the contention has to be (and is in this case) that the only proper conclusion that could be reached is that the council had to accept that Lara should be sent to the Fortune Centre. Mr Newton, in a forceful and attractive submission, submitted that there was overwhelming evidence strongly supporting the residential placing. There is no doubt that he is right, there is very considerable evidence in favour of that: the assessment conducted by Miss Casey in April 2013, the detailed learning difficulty assessment in November 2013, where the author, Miss Hanson, concluded that the centre was the ideal placement for Lara, and she confirmed that in an email on 6 May saying in her view White Rock, the alternative proposed, was not appropriate; there was an annual review meeting at the Parkwood School in November 2013 that strongly considered that Lara should go on to this particular placement; and the headmaster and also the father submitted that the report of the social worker, a Ms Mhembere, on which the council principally relied was defective in a whole series of ways which were outlined in detail to the panel. The panel reconsidered the decision, as I have said, on 1 August. By then they had three further reports from a chartered educational psychologist, an independent social worker and a speech therapist, and there was a request from the parents for the panel to consider comparative cost. In fact it seems that the costs are more expensive for the local authority in the short term to adopt the panel’s proposal, although they would become smaller as time went on.

The 1 August letter was important. It said that in the view of the panel there was no new evidence or information but rather the evidence reinforced the needs which had been previously identified. The letter set out how it thought those needs should be addressed essentially in the way I have already indicated. The conclusion was that there would be a high level of ongoing independence training in a local environment. They noted that the proposal supported the assessment of Ms Mhembere, who, they noted, "is experienced in working with young adults going through the transition process".

Mr Newton pointed out, forcefully - and he has given me certain pause for thought - that the social work report from Ms Mhembere deals with this particular issue (namely that there are problems of transferable skills, and principally on that ground the Fortune Centre would not have been an appropriate placement) in just a couple of sentences in her report. As against that, there is the considerable support from professional workers who think that the Fortune Centre would provide a better long-term proposal for the way in which Lara should be treated.

The question is whether the judge was entitled to reach the conclusion that this was a conclusion open to the local authority. I do confess that they were certainly flying in face of very powerful contrary evidence, but it is important to recognise that the panel themselves will be experienced in this kind of field, and there was a statement before the court below from Wendy Vincent where she deals with some of the points that were raised by Mr Newton. It is true she did not deal with them all, but it is certainly not right to say that in producing reports of this kind, or indeed even in the proceedings before the court, the local authority has to address all the issues that have been made by the various experts in the course of their submissions.

What Wendy Vincent does say (and this, I think, is not disputed) was that there was very powerful evidence to the effect that Lara does have problems with what is called "generalisation", ie transferring skills from one environment to another. So the concern of the local authority (and this was the essential question that had to be determined) is: in the longer term, what is the best way of ensuring that she develops these skills? The view of the panel, for better or worse, was that there was a significant concern - which, it is true, is emphasised by Ms Mhembere and largely only by her - that she would not be able to transfer the skills from the Fortune Centre. They considered that what they proposed was a better recommendation.

They noted that it was very much Lara's own view that she should go to the Fortune Centre, and Mr Newton emphasised the significance of that as well as the observation of one of the experts that the whole system might break down so far as Lara is concerned if that option was not kept open to her. But she addressed that at paragraph 8 and said (and again the question is not whether this is a correct or incorrect analysis but whether it is a considered one) that Lara was not in a position to take a fully informed decision about the options available to her. They noted that so far as the section 139 assessment was concerned, they did not consider that the author had considered the difficulties for transitions in the long-term; they observed so far as the views of the independent social worker and independent educational psychologist were concerned that they had not visited the placement at White Rocks Farm, whereas the defendant had visited White Rocks Farm and spent a number of hours viewing the facilities. I do not know whether that was Ms Mhembere or whether it was members of the panel who would have undertaken that, but plainly somebody did that and reported back to the panel in some way or another.

The critical question in the end is whether this might be one of those really very exceptional cases where it can be said that a specialist panel with specialist expertise considering a whole range of factors has reached a conclusion which no reasonable panel could reach. Mr Newton says that this is one of those exceptional cases, or at least arguably so. I do see, as I have emphasised, that the conclusion is very much against the weight of evidence. But that is not enough. There is some evidence to support the panel's decision. The question then is whether it was irrational for them to reach the decision which they did. I cannot say that it was irrational. There was some explanation given in the letters provided; there was further explanation given as to why some of the reports had not been considered to be entirely convincing in the witness statement of Wendy Vincent. I emphasise the question is not whether the analysis is correct or incorrect - that is simply not a matter on which this court could possibly pass judgment - it is whether there is a sufficient basis to say that this panel has given consideration to these matters and has reached a conclusion which is at least sustainable.

There were two other criticisms, it seems to me, that Mr Newton was making, one implicit, one explicit. The implicit one was that they had not given sufficient reasons for rejecting certain of the matters that had been raised by the experts. I have already dealt with that. Firstly, this is not specifically a reasons challenge, but in any event it would not be necessary for the panel to set out in copious detail why they agree or disagree with each point made by each expert. They have given in substance why they have reached the conclusion they have: it is based on the problem of generalisation and their view that it would be better achieved in the local environment because those skills would be transferred. The other point concerned the premise – counsel says a false factual premisem which is that Lara would remain in Bexley. The submission is that if she does not remain in Bexley then there is no particular advantage in having her skills honed, as it were, in that area, because if she moves the same problem will arise as would arise three years after she left the residential school. I do not accept that. This was a point made after the initial decision, but it is not unreasonable for the authority to assume that absent some clear evidence to the contrary, it is a reasonable assumption that she will stay in Bexley. I should also add, but I am not clear about this, that the local authority may well have been saying that she needs to hone her skills in a local environment rather than in the residential environment. If that is right, the fact that the local environment may change would not alter the analysis.

For these reasons, I refuse permission to appeal.