Onubogu-Emeka-Opara, R (on the application of) v London Borough of Sutton

MR JUSTICE HARRISON: This is an application for interim relief in connection with an application for permission to apply for judicial review of the alleged failure of the defendant, the London Borough of Sutton, to provide suitable residential interim placement for the claimant because she will be leaving where she is at the moment, namely St Piers college, today. This, therefore, comes before the court by order of Sullivan J who ordered that there should be an oral hearing for interim relief by no later than today. It has been referred to as a crisis application, which in many senses, I suppose it is.

The claimant is aged 22 and she has severe epilepsy which involves multiple seizures which require emergency medication and which puts her at risk of sudden, unexpected death. She also has moderate to severe learning difficulties and communication difficulties. The claimant, through her litigation friend, her mother, wishes to go to Independence Homes, who I understand have a place available for her if it were decided that she should go there. The defendant does not consider Independence Homes to be suitable. They propose that the claimant should go to Regard Partnership at their home at the Grove.

My attention has been drawn to the relevant legislation and, in particular, to the guidance on the 1992 Directions which in paragraph 5 states:

The main point in issue and the main concern, although not the only concern, is to ensure that the claimant is sent to somewhere, as an interim placement, where the court can be reasonably satisfied that the significant risks arising from her epilepsy can and will be adequately dealt with. It is said on behalf of the claimant that the Grove is a non-specialist environment so far as epilepsy is concerned, and that the staff do not have proper specialist training in relation to it. Whereas, it is said, Independence Homes is a specialist environment and is available at not significantly greater cost.

Miss Hewson submits, on behalf of the claimant, that I should have in mind the protection of the claimant's physical and moral integrity pursuant to Article 8, and, perhaps more importantly, I should adopt a precautionary approach, having regard to what I will call the epilepsy risks. Miss Greaney submits, on behalf of the local authority, that the relevant test is whether there is a serious issue to decide and where the balance of convenience lies. I would accept Miss Greaney's submission on that aspect and I do think that there is a serious issue to decide. I do have to decide where the balance of convenience lies. In considering where the balance of convenience lies, I also think it is right, in the very particular circumstances of this case, to adopt what Miss Hewson has called the "precautionary approach".

I am very conscious of the point made by Miss Greaney that, as I am being asked to choose between Independence Homes on the one hand and the Regard Partnership on the other hand, a decision on this interim application could well turn out to have the potential to predetermine the substantive point at issue. That is something that I have to bear in mind. I do, however, also bear in mind that the local authority only proposed the Regard Partnership as an interim measure and that they have in mind Washington Road as the permanent solution. Those premises are not yet available because they are still being built and will not be available until November or maybe a bit later. So that is another aspect -- the potential for predetermining the substantive issue which I must have in mind.

Miss Greaney submits that, unless I am satisfied that the claimant's needs will not be met at the Regard Partnership, I should not interfere with the Council's decision. I have to say straight away that I am very concerned about the way in which this issue has to be decided at the eleventh hour when it should have been a matter dealt with and proposed by the local authority much earlier. I do think that the local authority are to blame in not having come to a final conclusion until, in effect, the day, or two, before this hearing.

The result of having delayed in that way, and thus having to deal with the matter at the eleventh hour, is that I am told, on behalf of the local authority today, that the issue of how the Regard Partnership would deal with the epilepsy has now been discussed between Mr De Silva, the Head of Learning Disabilities at the Council, together with the Manager of the Grove. Mr De Silva has been told that all the staff at the Grove are trained to deal with epileptic seizures and rectal diazepam. But I do not find that at all a satisfactory way of asking the court to deal with this very serious matter, because there is not a shred of evidence before the court about the training of the staff at the Regard Partnership to deal with epileptic seizures. I would have expected that matter to have been thoroughly researched by the local authority some time before today.

I have been shown a copy of a document which is called the "initial interview or visit" and "personal profile summary" which, as I understand it, is the result of the assessment by Karen McLaren, the Referrals Manager of Regard Partnership. It is dated 16th July 2004 and it identifies the risks involved for the claimant, the biggest one being the claimant's severe and complex epilepsy. That document then states: "Staff would need to be very well trained in dealing with all of these issues." What one wants to know is whether they are very well trained now or, if they are not, then how are they going to be. It is simply not good enough to produce that sort of evidence before the court when the court is being asked to make a serious decision. That is quite apart from the fact that, on the last page of that document, there are other concerns that have been raised by other people about Regard Partnership as well.

The result of all this is that I cannot be satisfied about the appropriateness of the Grove at this stage on the evidence, or lack of evidence, put before this court. Bearing in mind that this is a serious matter of concern, the precautionary approach argues strongly against the Regard Partnership for that reason. Indeed, it is accepted that the Grove is not a specialist epilepsy provider as Independence Homes is.

I am told that the Council have concern about Independence Homes, in effect, because it is too specialist a provider and would not place sufficient emphasis on the independent living of the claimant due to the fact, it is said, that they are largely focussed on managing epilepsy. As I understand it, Independence Homes are very much focussed on epilepsy but that is, of course, the main point of concern in this case. I am not really in a position to know whether the local authority are right about that or not. I notice from the report of Dr MacLeod that, at Independence Homes, the claimant would be supported to develop her independent skills and to fulfil her potential as an individual. All I can say is that I note the concern of the local authority but, on the evidence before me, I am simply not in any position to resolve it, nor at an interim stage would it be right for me to seek to do so. I am certainly not satisfied that that is a sufficient reason for me to conclude, at this interim stage, that Independence Homes would not be suitable.

The other aspect is that of cost. The costing put forward for Independence Homes is £1,400 per week. The costing for the Grove, although sought on behalf of the claimant for some little time, has only been provided to the court and to the claimant today. Another unsatisfactory way in which this matter has been handled. Indeed, the document comes under a fax cover of 23rd July, namely today. There is therefore, no proper opportunity for the claimant to scrutinise the issue of costs in the same way as the defendant has been able to do because full details have been available from Dr Grove to the defendant for some time. Be that as it may, the cost figure given for the Grove is £1,233, a difference of some £167 a week. What is said in relation to that by the defendant is that, first of all, the difference is significant, and secondly, that the health care needs at Independence Homes would be provided privately whereas at the Grove it could be provided on the National Health. Thirdly, there are some potential extra cost items in the Independence Homes breakdown. On the other hand it is pointed out that the costings provided today by the defendant are to be reviewed within six weeks and revised, dependant on her needs.

There is, on the face of it, on the evidence before the court, a greater cost if the claimant were to be cared for at Independence Homes than at Regard Partnership. The difference is not huge but it is real and I can understand, and have some sympathy, with the points raised by Miss Greaney on that score. But what I have to bear in mind is that I am dealing here with interim relief. I am therefore dealing with a situation for a temporary period, however long that may turn out to be. Looking at the balance of convenience, as I have to, I am not persuaded that that aspect is sufficiently significant to warrant overriding the serious concerns of risk relating to epilepsy and the lack of evidence that that would be adequately catered for at the Regard Partnership.

Therefore, having regard to all of those factors, my conclusion is that, on the balance of convenience, it is right as things stand at the moment and on the evidence before this court, for the claimant to go to Independence Homes. That, therefore, is my decision. As to how long she goes to Independence Homes depends on how long the interim relief lasts for and therefore, in turn, when the substantive hearing takes place or any further evidence is forthcoming which may warrant the matter being looked at again. That is a matter for the parties to consider. I can only deal with interim relief as of today and that therefore is my decision.

Are there any consequential matters?

MS HEWSON: My Lord, I am not seeking any consequential convention directions.

MS GREANEY: No, my Lord.

MR JUSTICE HARRISON: Thank you very much, both of you.