P, R (on the application of) v London Borough of Newham

The claimant in this case “P” will become 18 on 6 November 2004. He is a severely disabled boy who has cerebral palsy, is doubly incontinent, cannot speak and needs help with all aspects of his personal care.

It is unnecessary to go into his background in great detail. The foster parents with whom he had been living for seven years since the age of 7 found themselves unable to continue caring for him. The upshot was that ultimately in February 2003 the defendant placed the claimant at a children's centre, where he remains and continues to be looked after.

Over the last year the claimant's grandmother, who has been commendably dedicated to his well-being, has endeavoured to obtain information and action from the defendant in relation to the claimant's future as his 18th birthday approaches. In that respect she has had the assistance of an advocate from MENCAP. The lack of action as perceived by the grandmother was so severe that she took legal advice. A formal complaint was made, but the answers given by the local authority were unsatisfactory. The local authority gave the impression that documents, which by statute they were required to produce, were either ready or would shortly be produced, but they did not provide a pathway plan as contemplated by the statute. The local authority responded in a way which lacked transparency. Mr Fleming, the service manager for the service group, told us that that led to concerns about whether there had not in fact been an even higher level of misrepresentation.

With the assistance of solicitors the claimant's grandmother drew attention to the legal obligations on the local authority, but has failed to draw from them until today's hearing any real acknowledgement that, with whatever good intentions, the local authority had regarded the law as providing for a less satisfactory solution for the difficult problems faced by the claimant than their own procedures. Although that is not an attitude which can be countenanced, it was not even an attitude which they were prepared to vouchsafe to the claimant's grandmother in order to try to alleviate some of the understandable concerns which she had.

Judicial review proceedings were commenced. The material provided by the claimant led to orders being made, first, by Mr Nicholas Blake QC sitting as a Deputy High Court Judge, and then by Collins J on 9 September 2004, whereby he ordered the attendance of Mr Fleming to explain what had happened in relation to compliance with the statutory provisions.

Schedule 2 to the Children Act 1989, as amended, provides in paragraph 19B(4) that for an eligible child (and there is no dispute but that the claimant is an eligible child):

“the local authority shall carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide under this Act --

(a)while they are still looking after him; and

(b)after they cease to look after him,

and shall then prepare a pathway plan for him.”

The content of the Act is filled in by the provisions of the Children (Leaving Care)(England) Regulations 2001, and in particular regulations 5-9. Regulation 5 provides an obligation on the authority to prepare a written statement describing the manner in which the child's needs will be assessed. The written statement has to include a number of specified pieces of information about, for example, the procedure for making representations in the event of disagreement, who is responsible for conducting the assessment and who is to be consulted. Regulation 7 provides an obligation for the authority to assess the needs of each child in accordance with these regulations. The assessment is to be completed in the case of an eligible child not more than three months after the date on which he reaches the age of 16. The assessment must be followed as soon as possible thereafter by a pathway plan, according to regulation 8. The Schedule to the regulations sets out nine topics which must be covered in the pathway plan and in any review of the pathway plan which has to take place at intervals of not more than six months, according to regulation 9. I note that regulation 12 also provides for the functions of a personal adviser who is to be provided for the eligible child's benefit.

The concerns of the claimant's grandmother and the advocate from MENCAP are that as the claimant approaches his 18th birthday, no provisions apparently having been made for his future, he would cease to be a child looked after by the local authority and that there would be no provision made for him as a young person or adult. It is clear from the evidence that Mr Fleming gave that the response of the local authority to those concerns did not involve: (1) the production of the assessment and pathway plan in compliance with the regulations; (2) an explanation as to why not, what were the documents that they were referring to and what it was that they proposed to do instead, which they regarded as more satisfactory; or (3) why it was that, notwithstanding the relevant statutory provisions being drawn to their attention, they had not heeded the warnings. Mr Fleming, who gave his evidence honestly and helpfully, recognised that just criticism could be levelled at various matters, including at those working within the Social Services Department. He did not wish to defend those matters which he regarded as legitimately criticised. Instead, he sought to focus on the way in which matters needed to be reviewed and improved.

The position as set out by Mr Fleming in evidence orally and by, in part, inference from the evidence of Miss Cooke in a witness statement is as follows. Miss Cooke is the Senior Team Manager in the Disabled Children and Young People's Service. It is tolerably clear from her evidence that the local authority has undertaken a number of steps in order to look after the claimant, but has also taken the view, as can be deduced, that the processes within the statutory provisions are not appropriate for someone who suffers from the range of complex disabilities from which the claimant suffers. For that reason an alternative process, a transitional plan process, has been in place. The essence of that is that the claimant would remain accommodated in the same place until he was over 19. He would continue with his education in the same way and only after his education ceased would he be transferred to adult services. The transitional process would be devoted to ensuring that the change from the age of 19 was appropriately managed. However, whatever the merits of that process may be and however well it may be done, it is not one which meets the requirements of the statute. The requirements of the statute are clear.

It has been accepted by Mr Jones, and by Mr Fleming in his answers, that the local authority has not complied with the statute. It has properly looked after the needs of the claimant, but the statutory requirements have not been satisfied for someone of his age.

The claimant therefore seeks from the court a declaration that the local authority has not complied with its statutory duties. I see no reason not to make a declaration in this case that the local authority has not complied with the duties with which it was obliged to comply in relation to the claimant under the provisions of Schedule 2, paragraph 19B(4), to the Children Act 1989 (as amended) or the Children (Leaving Care)(England) Regulations 2001.

Mr Jones recognises that it is appropriate for an order to be made requiring compliance with those provisions. The concern raised by Mr Wise, understandably, relates to the imminence of the claimant's 18th birthday. The local authority, through Mr Fleming, contends that many of the components have already been examined by the local authority and that the production of the envisaged and required pathway plan can, with the priority allocation of resources which he envisaged, be done within a comparatively short time. Mr Fleming accepts that there should be the appropriate assessment, as envisaged by the regulations, that a draft pathway plan should be available by 5 October and a final one, following discussions, by 12 October. He warns, however, that whatever it may say about the location of the claimant until he is aged about 19, because of the complexity of the case it is not a plan that would include the details of where the claimant would reside after that age (on the assumption that he stays where he is until then).

The question of whether or not that is satisfactory is one about which I have not heard argument, although it would be idle to suppose that finding appropriate accommodation for someone who has the complex disabilities which the claimant has is a process that can be undertaken rapidly or easily. Mr Wise would say that that argued for an early approach to the matter within the statutory framework. He is right, but that does not necessarily mean that the process should be so rushed as to produce unsatisfactory answers.

Nonetheless, in addition to the declaration which I have made, I order that, following a statutory assessment, a draft pathway plan complying with the regulations should be provided to the claimant's solicitor by 5 October and a final pathway plan should be provided by 12 October. So far as the continued disposal of this case is concerned, because of the imminence of the claimant's 18th birthday and the unhappy history of the dealings between the grandmother and Newham I would not consider it appropriate for the claimant to have to start fresh proceedings in order for there to be an analysis of whether the pathway plan actually met the statutory requirements. Accordingly, the case will be adjourned until 26 October (I do not reserve it to myself) in order, if necessary, for further debate about any compliance by the London Borough of Newham with its statutory obligations to take place. If no further proceedings are necessary on that date, that I am sure would be welcome news for all concerned.

I adjourn all other aspects of relief to that date and in particular the question of whether any declaration in relation to the Human Rights Act or order in relation to damages should be made. I appreciate that I have had some modest advantage in hearing some of the argument, but the question of whether such an order should be made will require a more careful examination of the detail of the past conduct of Newham than has currently been undertaken. Having said that, I would not wish to encourage a belief that such an application had strong prospects.

Accordingly, I make the declaration to which I have referred. I make the order to which I have referred. I adjourn the other matters until 26 October, when the case will be reviewed.

MR WISE: My Lord, may I invite the court to direct that half a day be set aside for the hearing on 26 October and that the parties should inform the court if there is to be a shorter period of time required?

MR JUSTICE OUSELEY: Costs?

MR WISE: My Lord, so far as costs are concerned, we have succeeded and in those circumstances the ordinary order should follow.

MR JUSTICE OUSELEY: I think that is right, is it not, Mr Jones?

MR JONES: My Lord, there is nothing I can say.

MR WISE: It may be appropriate also for an order for detailed assessment?

MR JUSTICE OUSELEY: Yes. The defendant will pay the claimant's costs of today and of the proceedings so far, subject to detailed assessment. The claimant should not be identified otherwise than as “P”.