Deeming, R (on the application of) v Birmingham City Council

MR JUSTICE ELIAS: The claimant in this case is Lee Deeming. He has faced a number of difficulties in his life. He was born in 1988, was removed from his parents after about 9 months, was adopted when he was 2, but was removed from his adoptive parents and placed in a children's home when he was about 15. He moved to various children's homes and, ultimately, when he was 16, moved to an independent living placement in Bromley. He had to leave his accommodation there, then went to a Travelodge, and has since been accommodated in his own flat. He was diagnosed in the past as having Asperger's Syndrome, Obsessive Compulsive Disorder and Attention Deficit Hyperactivity Disorder. He has had difficulties at school and was excluded from school in September 2002. He has no formal qualifications, though it appears that he is a man of some intelligence and humour and he has aspirations to go to University. He is at college in Bromley, doing A level equivalents.

The Council responsible for him is the defendant, Birmingham City Council. In practice they have arranged with London Care Solutions ("LCS") to carry out certain functions on their behalf. In particular, the claimant has regular contact with Mr Crafter, an outreach worker with LCS who has most regular contact with the claimant. The defendant terminated the support from LCS on 17th March 2006. In fact, LCS continued nonetheless to provide support for him and subsequently Birmingham undertook that they would continue to pay LCS for 10 hours' support per week. On 5th July they gave an undertaking to the court that they would continue to provide that support until these proceedings had been resolved.

The relevant proceedings were issued on 3rd April 2006 and are directed against what is said to be the defendant's failure properly to assess the claimant's needs or to produce an adequate pathway plan. The purpose of that plan is to set out the care proposed for him following his 18th birthday, as required by section 23E of The Children Act 1989 and related legislation. It is also alleged that the defendant had failed to provide a personal adviser, as is required by section 23D of the 1989 Act and that they had failed to produce some education transition plan. Subsequently, a personal adviser was appointed. There is some dispute, and I will return to it, whether there was a proper personal adviser in place from the age of 16, as is required. The Council has stipulated that the social worker who was acting for the claimant in earlier years was carrying out the functions of the personal adviser. I am not clear from that whether there was ever a formal appointments to that position. I think it is unlikely that there was, but in any event it does seem to me, from the Guidance at chapter 6, paragraph 4, that it is not in principle desirable for the social worker to be the personal adviser. That paragraph seems to envisage that they will be carrying out quite different and possibly conflicting functions. So my provisional view, although I have not heard any extensive argument on the point because it is not central to this case, is that the personal adviser and the social worker should be quite different people.

In any event, a personal advisor was appointed in February this year. She is Miss Carmen Coppola. But it is submitted that she is not a proper person to carry out the role of personal adviser.

With that by way of rather summary background, I turn first to the legislation. The purpose of the legislation is to ensure that children who are leaving care are properly looked after and that their concerns relating to education, employment, training, as well as financial and emotional concerns, are properly dealt with. In effect, the Local Authority acts as a surrogate parent and assists them to develop into adults who can live independently. The regulations with which I am concerned in this case are the Children (Leaving Care) England Regulations 2001. It is common ground that the claimant falls under the terms of the Regulations. What they required is that the responsible authority must prepare a written statement describing the manner in which the needs of each eligible and relevant child must be assessed. The Regulations at Regulation 6 make it plain that the views of the child or young person should be obtained and that they should in principle participate in any meeting at which their case is to be considered. Regulation 7 deals with the assessment of needs. This should be carried out within three months after the date on which the child attains the age of 16. Regulation 7(4) identifies the considerations that must be taken into account in carrying out that assessment. It includes the child's health and development, the need for education, training or employment, the support available with members of the family and other persons, financial needs, the extent to which practical and other skills necessary for independent living are possessed and also the need for care support and accommodation. Then it is provided that various persons' views should be sought and considered in the course of making that assessment.

Regulation 8 then says this:

The matters referred to in the schedule are as follows:

Regulation 9 provides that the pathway plan should be reviewed at least every six months and it sets out the procedure for review which in many respects mirrors the procedure for carrying out the original assessment.

Regulation 12 deals with the functions of personal advisers. It provides as follows:

Accordingly, it is plain that there has to be an assessment in the pathway plan in which the personal adviser will have a significant role. The provisions were considered by Munby J in R(J) (by his mother and litigation friend MW) v Caerphilly County Borough Council [2005] 2 FLR 860 at para 13. I need not recite the facts in that particular case, which are quite distinct from this case, but in the course of giving judgment, Munby J said this at paragraph 44:

Munby J continued at paragraph 45:

Then later he added this:

His Lordship also made certain comments on the role of the personal adviser. He pointed out that it is not part of the personal adviser's functions to undertake the statutory assessment on the part of the pathway plan and he considered that the Regulations made it impermissible that the personal adviser should play that role. He added:

As I have said, proceedings were instituted in April of this year and permission was granted by Jackson J on 5th July 2006. There have been apparently fairly lengthy discussions between the parties as to whether or not their differences could be resolved and, indeed, I sought again this morning to discover whether that was possible because it seems to me highly desirable, if possible, that disputes of the kind that have arisen here should be resolved amicably because of the continuing relationship between the parties hereafter. But it transpired that matters could not be resolved in that way, and so I have heard this case for many hours during the course of today. I should add that the pathway plan that is now under consideration is one drafted on 2nd October 2006. That, of course, is not the plan that was in place when judicial review proceedings were issued, but it is accepted that that is the plan to which I should now have regard. I should also say that certain observations on the plan have been made by the claimant and they are, I am told, actively under consideration by the Council and they could lead to further revision of the plan in certain respects, but plainly I have to consider the case on the plan that is currently before me.

I have been shown a number of earlier pathway plans that were put in place in earlier years. I simply mention that because it has to be said that the instigation of the proceedings here has meant that the plan which is now before me is, as everyone accepts, a much fuller document than has existed hitherto. Notwithstanding that, Mr Wise for the claimant submits that there are still certain fundamental failings in the plan that has been adopted. That is the first part of his complaint. The second is, as I have indicated, that Miss Coppola is not an appropriate person to be the personal adviser. He says, in substance, that she is merely a token figure whose function is merely to give a veneer of compliance to the Regulations, but he says that for this particular claimant it is quite unreal to say that she can carry out her functions, being based in Birmingham, some 150 miles from the claimant.

I shall deal with these two grounds separately and I will deal with the suitability of Miss Coppola to be personal adviser first.

The functions of the personal advisers are set out in Regulation 12, and I have set that out already in this judgment. Miss Coppola was in fact appointed in February 2006, but for various reasons she was not introduced to the claimant until June. She has visited the claimant on two occasions: the one in June, to which I have made reference, and a later occasion in August. Part of the explanation for this may be that I am told she has been ill and off work in the past two months and so has had no direct contact with the claimant in that period.

There was some debate as to whether or not she had participated in the assessment and preparation of the pathway plan and the extent to which she may have played the negotiating role in that exercise. I think it is fair to say that the principal complaint against her was not that she has not fulfilled those functions, and it would be wrong for me to assume she had not because I do not think that it was a matter about which they were principally concerned. Their principal complaint was that from the distance of 150 miles she could not provide the practical advice and support that was needed for this particular claimant. It is, in my judgment, necessary to bear in mind, as I said, that the claimant has during this period had continuing contact with Mr Crafter. LCS ought to have been providing care and support per week and it is plain that the claimant and Mr Crafter get on very well. Indeed, in the assessment of the current situation in the pathway plan there is the following comment:

He goes on to say that he sees Mike twice a week and there are regular telephone and e-mail contacts.

In addition to the regulations I have mentioned, there is extensive guidance issued by the Department of Health and chapter 5 deals with needs assessment and pathway plans. Chapter 6 deals with personal advisers. As far as the personal advisers are concerned, it is provided at paragraph 3 of chapter 6 that the extent to which the personal adviser become the main source of advice and support will vary depending on the circumstances, and adds that for many young people the advisers may be "largely a peripheral figure in their lives."

There is also a separate chapter in the Guidance dealing with care leavers aged 18 to 21, which of course this claimant is. Under a section headed "Keeping in Touch" the following is stated:

Then at 16:

It goes on to state that contact may be by other means such as telephone or e-mail.

In view of that guidance and the opinions expressed by the claimant himself as to the contact that he wishes to have with his personal adviser, I do not accept that the Council has acted in any way irrationally or illegally or improperly in considering that Miss Coppola can be an appropriate personal adviser. I would, however, make the point that there plainly will be circumstances where it would be extremely difficult for the personal adviser to be 150 miles away. A lot will depend upon the degree of support that the young person has locally. In this case it seems to me very relevant that there is a significant degree of support provided by Mr Crafter.

Mr Green, for the Council, accepts that it would, of course, be important for the Council to keep under review the suitability of Miss Coppola as the personal adviser if and when circumstances change, and it seems that it is currently being proposed that the services provided by LCS should be withdrawn. It is not for me at this stage to say whether or not in those circumstances Miss Coppola would continue to be a satisfactory personal adviser and it will depend upon the range of support that the claimant needs thereafter. But I am satisfied that as things stand at the moment there is no basis for saying that Miss Coppola is not an appropriate person to carry out this duty or that she has failed to do so satisfactorily. As yet, she has had very limited contact with this claimant and that is in part, as I have indicated, because of the illness. Accordingly, this part of the application fails.

I turn to the other ground which is that the pathway plan is still inadequate, notwithstanding that it is, as I said, much fuller than any of the previous plans have been. Certain aspects are no longer criticised, but Mr Wise focuses on a number of matters, some of which are inter-related.

A central concern that he has identified, and which he submits is a defect running through this plan, is that there has been no satisfactory assessment of the health difficulties faced by his client and no adequate determination, therefore, of the needs which need to be met. In the assessment relating to health, the Authority notes that there had been an earlier diagnosis of Obsessive Compulsive Disorder and Attention Deficit Hyperactivity Disorder by a psychiatrist, but that that could be a misdiagnosis because the claimant takes no medication and has had no appointment in relation to these matters since leaving care. It is common ground, however, that the claimant does have Asperger's syndrome. Mr Green, for the Council, suggests that on the claimant's own evidence it is not particularly severe and, indeed, the claimant was unwilling to attend a support group for those suffering from this illness because he felt that the other members were more seriously affected than he was.

The needs identified state that:

There is in particular a concern about his failure to make appointments for the dentist or the optician. I think there is force in what Mr Wise says in relation to this matter. It seems to me that the Council has not identified precisely what the claimant's health problems are and, indeed, whether he still does have the problems that were diagnosed many years ago and, as a consequence, they have not identified what his specific needs may be arising from those health problems. It may be that there is relatively little that can be done, but I accept that there is insufficient analysis here of precisely what difficulties this particular claimant faces. Arguably, that feeds into a number of other areas, for example, it is accepted that one of the difficulties that the claimant has which is almost certainly connected with the Asperger's syndrome is the difficulty of making friendships. That is a problem that was recognised, in fairness, by the Council, although Mr Wise submits that there is an inadequate response to that particular problem. There is reference to the fact that Lee has said he would go to the gym once a week and also it is noted that he would develop friendships through part-time employment. But Mr Wise says, and again, I think there is force in this observation, that there is little by way of any specific proposals or any responsibility directed at particular individuals to seek to ensure that there is the development of friendships in other ways. The Guidance recognises the potential importance of that and says in terms:

Mr Wise is also critical of the section dealing with practical skills. The Guidance refers to various kinds of skills: self-care skills, such as personal hygiene, health, practical skills, such as budgeting, cooking, shopping, and so forth, and inter-personal skills, which would include knowledge of family and community, sexuality, cultural knowledge. The assessment identifies the fact that the claimant needs prompting to fill out application forms and it provides that a programme should be devised for the claimant to evidence his practical skills, such as menu planning and budgeting. This is to be done on a weekly basis, it says, with the assistance of Mr Crafter.

There are two particular points made here by Mr Wise. The first is that there are a number of relevant skills identified in the Guidance which have not been dealt with at all in this assessment. In particular, although this really overlaps with the issue I have already considered, there is no assessment here how interpersonal skills might be improved in practice and that is an important issue for this particular claimant.

It is true that, leaving aside interpersonal skills, there is no consideration in terms of all the various skills that are identified in the Guidance. It might have been desirable if the assessment had previously identified these, if only to say that they were not a problem, if that is indeed the case. That would have the advantage of focusing the minds of the Council on the task and would draw the attention to the claimant and the advisers, if this was the view of the Authority, and if either took issue with it, then they would be able to draw it to the attention of the Council.

I do not see this as a serious weakness in the assessment but, as I have indicated, it seems to me that it would be desirable to focus on these matters. But another difficulty that does exist, I think, is the lack of specificity in relation to what is being recommended. It is not identified who should carry out this programme or on what time scale. It is identified who will implement it. I am told that it would be envisaged that this would be the the kind of thing that LCS would do, but it does seem necessary to identify that LCS would be responsible for that, and for them to agree to that, and for there to be a specific timetable. I mention that here in the context of this particular issue, but I have to say there are a number of other places in this assessment, and I am not going to go through them all, where recommendations of what is to be done have been identified but without the specificity as to by whom and when that the Regulations and Guidance require, and I would suggest that the Council looks carefully at that when they come to consider the observations which may lead to further amendment to this plan.

Then it is said that the section on financial support is inadequate. The assessment in fact does not identify the income stream or the living expenses which the claimant has to meet. Mr Wise says that it should, and again, I think that it ought to be more specific as to identifying what the income needs are for this particular claimant. I recognise, as the Guidance makes clear, that for somebody over the age of 18 the primary financial support will be from income which will be obtained in precisely the same way as would income for the peers of this group, namely through employment, welfare benefits and that kind of thing.

Mr Wise took me to a section of the Guidance dealing specifically with financial arrangements which makes it plain that the income supplied through the benefit system should be the minimum standard and should not be seen as the norm and that what is required is a package which meets the needs of the particular individual. I thought that there might be some conflict between these provisions but, on reflection, I think Mr Wise is right to say that there is no inherent contradiction. The principal source will indeed be from benefits of one kind or another, but if the needs assessed demonstrate that further money is required, then that is to be provided by the Local Authority.

However, it is fair to say that in the assessment the Authority has identified a number of areas where the claimant has been seeking further money from them and has explained why they think it is inappropriate to provide that. It is specifically stated that essential items required to support educational needs will be met with financial assistance from the Council. If and to the extent that it is said that those would be the sole circumstances in which additional finance would be granted, then it seems to me that that is incompatible with the obligation to structure a system that would properly meet the needs of the claimant. But it appears from the assessment itself that it is envisaged that there are circumstances where further funds might be made available. For example, it is recognised that it might be possible to provide driving lessons as a reward to the claimant if he achieves certain objectives. It need not involve a significant change to this part of the plan to identify the income needed and the outgoing of this particular claimant. I think the desirability of it is demonstrated by the fact that apparently he has been suffering for a number of weeks with a shortfall of £10 a week because the housing benefit he receives does not in fact meet his outgoings. It may be that that would have been picked up with a tighter assessment. I should add that in fairness the Council has indicated that they will make good that deficiency in any case.

There is a concern about the provision in relation to contingency plan. As with certain other areas of this pathway plan, some of the actions which are proposed to deal with are in fact caught up with the assessment. I appreciate it can be difficult sometimes to separate them out in any very clear way, but it does make it a little more difficult to distinguish between the assessment, the identification of needs and the proposal to meet those needs. Again, there is some consideration of certain contingencies that might arise. They include, for example, the claimant not maintaining his tenancy, or if he fails to make contact, if he leaves school without any qualifications, and so forth, but Mr Wise says that is unsatisfactory in a number of respects. In particular, it seems to me there is again a legitimate concern in this area. An important issue for somebody in the claimant's situation is what is to happen if he faces an emotional crisis, perhaps a breakdown of a relationship or some other event in his life? Who should he go to in those circumstances? Who is to take responsibility for dealing with that?

Mr Wise also submits that some of the matters that have been identified do not give sufficient detail and do not involve the Council really preparing an adequate plan at all. For example, it said that if he loses the tenancy for his accommodation then he will have to present himself to the local housing office for alternative accommodation. That, submitted Mr Wise, is not an adequate contingency plan. It simply leaves the burden on him to cope with the particular problem.

Again, I think there is justice in those observations. It seems to me that what is required is an identification of who within the Council will take responsibility for seeking to ensure that steps could be taken in those circumstances to obtain accommodation. I am not suggesting that the changes need be very significant but it would require a particular responsibility on somebody within the Authority who would then know that it was their task to deal with this particular difficulty if and when it arose. Again, it is said that the landlord would be approached so he can inform Birmingham Aftercare if there is a problem. But, as I have indicated, there are certain details. Who is to do the approaching and in what time scale?

Finally, there is one further matter which is the subject of concern and that is the issue of personal support. There is a detailed assessment of the current situation and of the support that is being received by the claimant. It is then that the work to be undertaken provides as follows:

Mr Wise made certain criticisms of this section and, again, I think they are justified. First, there does not appear to be any assessment of what the need for support is. The reason for reducing it to three hours a week, as stated here, is that documentary evidence has not been supplied. Mr Green, for the Council, says that the evidence from the claimant appears to be that he is only receiving about three hours a week. If that is so, then the Council is justified in reducing the hours accordingly. But that presupposes that three hours is what is required rather than the 10 hours which is currently being provided which ought to have been provided currently and, if it is not, then it does not necessarily demonstrate that 10 hours is not required but merely that LCS is not doing what it is required to do.

I should add that I am not in a position to know if it is doing the ten hours, but the key point here is simply that there has not been an assessment of the very important question: How many hours support is needed by this particular claimant?

Further, there is the reference to Bromley Aftercare Service to provide practical support. There seem to me to be a number of defects. There is no detail of who is to do it. It may be in these circumstances that it is assumed it will be the personal adviser, and that could be indicated at the very front of the plan if that is the position. In other words, it could be stated that in circumstances where action needs to be taken by the Council, it will always be the personal adviser who will do it. But it is desirable that is identified so that everyone knows where the responsibility lies.

More significantly, it seems to me that there is obviously no guarantee that Bromley would be willing to play any role at all in providing practical support. There is no identification of what practical support it is thought would be necessary or desirable and there is no indication of how the Council would deal with the problem if Bromley refused to co-operate. I have identified this as an issue which, in my view, requires further consideration in this aspect of the plan, but is found in certain other areas as well, for example, in the contingency plan, to which I have already made reference. There, too, it is suggested that Bromley Aftercare Service will be contacted by the end of September. It seems to me that the implication is that they may be able to provide further assistance in relation to a contingency plan which would, in principle, be desirable for this claimant. If that is so, it needs to be identified what is thought might be appropriate and what the Council would do if Bromley refused to participate.

I am not saying that the Council's proposal to reduce LCS's involvement is intrinsically irrational. That is not for me to determine. It does seem a little surprising that there is to be review at the end of October, then there will be a further reduction to two hours a week. One would have thought that the purpose of a review is to determine whether or not that is a sensible thing to do. Whether it is or not I am not in a position to know. But what must be done here is to identify what support needs are required for this claimant by assessing those needs, not by taking account of what might or might not emerge from Bromley and not by having regard to LCS's failure, if it be a failure, to provide evidence of what they have been doing. The ultimate responsibility rests with the Council and it seems to me that this criticism of that part of the plan is justified.

Trying to summarise some of these points more briefly, I think it is necessary for the Council to look at these various aspects of the plan with the Guidance firmly in mind and to ask itself what, in relation to matters which it has identified, needs to be done, whether it is properly stipulated who is to do it and in what timescale; in other words, bearing in mind the words adopted by Munby J, who does what, where and when? There is, I think, a tendency to avoid certain difficult decisions by relying on the hope that Bromley or perhaps LCS will sort them out in due course. There is, in certain parts of the plan, a confusion, I think, between assessment and the way in which needs will be dealt with. As I say, I recognise there are sometimes difficulties in separating out those matters. I do not accept Mr Wise's view that this plan is fundamentally deficient and is a significant breach of the Council's obligations. There are aspects of it which seem to me to be perfectly satisfactory and in places it demonstrates, if I may say so, some quite careful assessment of the current situation. But I do think, for the reasons I have given, that there are certain key areas where the plan does fall short of what the law requires.

Mr Wise asked me to quash this plan and to require the Council to carry out another one. That is what Munby J did, apparently, in the Caerphilly case, but the circumstances of that case are quite different to these. I think there is no useful purpose to be served in this case by quashing the plan. The Authority are currently considering representations which may lead to some clarification, but I have no doubt that they will in good faith take on board the observations I made in the course of this judgment and I propose to do no more than to declare that the plan is deficient in certain ways that I have identified in the judgment, and leave it at that.

As I say, as far as the personal adviser is concerned, I think the Council has acted quite properly in appointing Miss Coppola. But, for those rather lengthy reasons, this application succeeds in part.

MR WISE: I am obliged for your Lordship to give judgment today. It is better for all clients and all concerned.

MR JUSTICE ELIAS: It did seem to me it is quite important. I hope it is helpful to Birmingham. I am sure they do not like and may not at agree with many some of the things I have said.

MR GREEN: It is extremely helpful.

MR WISE: Can I also echo our thanks to the staff for staying late.

MR GREEN: My Lord, yes.

MR WISE: It has clearly been helpful. We are quite happy with the relief your Lordship has indicated.

Just finally, the issue of costs, my Lord. We have succeeded in our submission. We should therefore be awarded our costs. We are also publicly funded and would seek an order for the assessment of public funded costs.

MR GREEN: Partial success, partial failure. The costs, in my submission, should reflect that. It is a very great pity that these criticisms made today were not made earlier. Your Lordship has the letter of 19th October where some matters arose but nothing like in the detail that was gone through by my learned friend today for the very first time, as far as we are concerned. Had they been raised earlier, it may be that this plan could have been reviewed before today's hearing. In our submission, an order for costs ought to reflect that. Despite our request for an adjournment to deal with it, we have had no opportunity to do so. The case we have had to meet has been presented fully today for the first very first time.

MR JUSTICE ELIAS: There is something in that point, though I think that perhaps it is rather unrealistic to think that all the issues would have been resolved by agreement in this matter. Think that the claimant lost in relation to part and that the appropriate order would be 50% of the claimant's costs.

MR WISE: My Lord, we would say that obviously one accepts that in such circumstances partial cost orders are appropriate. If it was a case where 50% was won, that would be the appropriate order. It has only been the small part of the argument, my Lord, and that has been on the planning point. In addition to that, there are other issues raised at the outset, the educational transition plan that the Local Authority accepted they were wrong in law in respect of, and the fact that there had not been a personal adviser appointed at the outset, which I know your Lordship was not troubled with in today's judgment, but there was not a personal adviser when the proceedings were issued. My learned friend makes play of effectively the conduct of the case. Your Lordship will see -- I am not going to take you to all the correspondence now, but we have been proactive even before these proceedings in ensuring a resolution without the need to come to court. The 19th October letter was, in truth, another effort to resolve this matter because, of course, having mentioned those points, it went on then to attempt to persuade the Authority to engage in mediation. That was really the central point of that letter. The detailed point made in respect of the previous plan, of course, and there were detailed submissions on that and many of the criticisms that your Lordship has found of the current plan were also criticisms of the previous plan.

MR JUSTICE ELIAS: I do accept and I am sorry, I had forgotten that when I said 50%. I do accept that there were certain other matters which have now occurred as result of the proceedings being initiated: not just education, although I did not deal with it in my judgment; I am afraid I forgot. I do not think that the social worker can be a personal adviser and maybe a personal adviser was appointed, at least the formal personal adviser was appointed.

MR GREEN: These proceedings were --

MR WISE: She had not seen him until June, of course.

MR JUSTICE ELIAS: There had not been one before that, I think. I had forgotten those factors. I think I will make it two-thirds. I do think that part of the claim has not succeeded. To some extent the arguments have shifted.

MR WISE: We recognise that, my Lord.

With regard to the point of the personal advisers and the social worker carrying out the function that your Lordship omitted to mention in the judgment -- I make no criticism, it has been a long day, of course -- on your Lordship's reviewing of the transcript, could we invite you to deal with that very briefly.

MR JUSTICE ELIAS: Yes, I will try and do that. On the view I have formed, it is in a sense a rather provisional view because it is just looking at that paragraph and I say "provisional" in the sense that it is not central to this case, so I have not given it a lot of thought.

MR WISE: It may, in any event, be helpful.

MR JUSTICE ELIAS: Perhaps if I can add here so that something is on the record while I remember. I will insert it into the judgment at the appropriate place. It will be as follows: