F & Ors, R (on the application of) v Wirral Borough Council

The Claims

This is an application for judicial review brought, with permission granted by Mr Justice Plender, by 25 Claimants against Wirral Borough Council (“the Council”). The claims allege that the Council has unlawfully failed properly to assess the social services needs of the Claimants, to provide a care plan and to meet their care needs accordingly.

The Claimants’ pleaded case raised five grounds of attack on the Council’s handling of the Claimants’ “needs”. First, it was alleged that the Council’s policy, adopted and adapted from central government policy guidance set out in a document called “Fair Access to Care Services” (FACS), was unlawful. Secondly, it was said that the Council had failed properly to identify the Claimants’ “presenting needs” (a concept for elaboration below) and to evaluate them against risks to their independence as required by FACS. Thirdly, it was said that the care plans produced were inadequate. Fourthly, it was contended that the Council had failed properly to involve the Claimants and their carers in the assessment and planning process. (Permission to apply was refused in respect of this ground and it has not been renewed.) Fifthly and finally, it was contended that the Council, as a consequence of these failures on its part, has failed to provide sufficient funding to meet the Claimants’ needs.

The first ground, which it appears was the principal ground that induced Mr Justice Plender to grant permission, was that risk of significant impairment to health by failure to meet a “need” gave rise, by that fact alone, to a “substantial” or “critical” need within the meaning of FACS which would have to be met and provided for financially by the Council. In this respect, the Claimants relied upon arguments based on the decision of Mr Justice Collins in R (Heffernan) v Sheffield City Council [2004] EWHC 1377 (Admin). However, in spite of reminders during argument and with some encouragement from the bench to amplify the submissions on that point, Mr Prescott QC, who appeared (with Miss Busch) for the Claimants, did not pursue the point before me and it was accordingly abandoned.

The crux of the Claimants’ final argument, therefore, rested simply on the point that the assessment processes carried out by the Council in respect of each of the Claimants did not properly identify their needs and evaluate them against the “eligibility criteria” for care provision arising under FACS and the Council’s own policy. As a pointer to that conclusion, Mr Prescott argued that materials published on the Council’s website indicated that it had misunderstood its obligations under FACS and had accordingly acted unlawfully in the assessment and evaluation process. As will appear, the Claimants’ initial complaint was that the Council had not assessed them at all. This complaint was manifestly unfounded and the claim became more and more refined as the proceedings progressed.

Background Facts

Each of the Claimants (with one possible exception) is a person who undoubtedly has suffered and/or continues to suffer from misfortunes or disabilities of various types. Each lives in accommodation, within the Council’s local government area, let to him or her by a company limited by guarantee called “Salisbury Independent Living” (“SIL”). This is a company in which one of the prime movers, although not a director of the company, is a Mr. Russ Canner. Mr Canner appears to be a person of substantial means who, because of misfortunes suffered by a close relative, has been motivated to assist persons, such as the Claimants, who are similarly disadvantaged.

Mr Canner and SIL consider that the Council have improperly failed to meet their legal obligations to the Claimants in the social services field and as a result have deprived the Claimants of funds which would in turn reimburse SIL for the assistance provided by it to them. SIL has funded the Claimants’ legal costs and has indemnified them against any costs liabilities to the Council. Until shortly before the hearing, the Claimants’ litigation friend (so far as any of them may lack litigation capacity) was a Mr John Wilberforce, a director of SIL, who has also provided the principal witness statement for the Claimants. Criticisms were levelled by the Council against Mr Wilberforce’s position as litigation friend and by order made by me on the day before the hearing, on an application by the Claimants for an order substituting two alternative litigation friends, Mr Wilberforce was replaced by those two persons.

There is a long history of dispute between SIL and the Council, principally in relation to housing benefit matters, and the rumbles of cannon fire from those earlier battles continued to be audible in these proceedings.

Legal Background

The law in this field is exceptionally tortuous. It is encouraging to note, from the Law Commission’s spring 2009 newsletter, that it is in the process of reviewing the law relating to the provision of adult social care in order to “modernise and consolidate this outdated area of the law”. This would be very welcome. The Commission’s consultation paper is expected in January 2010.

The relevant primary legislation, subordinate legislation, supplementary guidance and directions are extensively set out in the skeleton argument of Miss Richards (who appeared for the Council) to whom I am grateful. She took me through these materials in oral argument. They are as follows:

Section 46(3) of the National Health Service and Community Care Act 1990 defines “community care services” as

“services which a local authority may provide or arrange to be provided under any of the following provisions-(a) Part III of the National Assistance Act 1948;(b) Section 45 of the National Services and Public Health Act 1968; (c) Section 254 of and Schedule 20 to the National Health Service act 2006; and (d) Section 117 of the Mental Health Act 1983.”

Section 47(1) of the 1990 Act provides that:

“Where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-

a)

shall carry out an assessment of his need for these services; and

b)

having regard to the results of the assessment, shall then decide whether his needs call for the provision by them of any such services.”

Section 47(4) provides that the Secretary of State may give directions as to the manner in which an assessment under this section is to be carried out or the form it is to take but, subject to any such directions (and to subsection (7), which is not material to the present case), it shall be “carried out in such a manner and take such a form as the local authority consider appropriate.”

Of the enactments listed in section 46(3) of the National Health Service and Community Care Act 1990, section 45 of the 1968 Act has no application to the present case, nor does section 21 of the National Assistance Act 1948.

Directions issued by the Secretary of State under section 29 of the National Assistance Act provide as follows:

“2(1) The Secretary of State hereby approves the making by local authorities of arrangements under section 29(1) of the Act for all persons to whom that subsection that applies and direct local authorities to make arrangements under section 29(1) of the Act in relation to persons who are ordinarily resident in that area for all or any of the following purposes;

a)

to provide a social work service and such advice and support as may be needed for people in their own homes or elsewhere;

b)

to provide, whether at centres or elsewhere, facilities for social rehabilitation and adjustment to disability including assistance and overcoming limitations of mobility or communication; and

c)

to provide, whether at centres or elsewhere, facilities for occupational, social, cultural and recreational activities and, where appropriate, the making of payments to persons for work undertaken by them.”

Section 2 of the Chronically Sick and Disabled Persons Act 1970 provides that where a local authority having functions under section 29 of the National Assistance Act “is satisfied in the case of any person to whom that section applies who is ordinarily resident in that area that it is necessary in order to meet the needs of that person for that authority to make arrangements” for all or any of the matters set out in sub-sections (a) to (h) then it shall be the duty of the authority to make those arrangements and exercise for its functions under Section 29. The matters identified in section 2(a) to (h) are: (a) the provision of practical assistance for the person in their home; (b) the provision for that person of wireless, television, library or similar recreational facilities; (c) the provision for that person lectures, games, outings or other recreational facilities outside his home or assistance for that person in taking advantage of educational facilities available to him; (d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under Section 29; (e) provision of assistance in arranging for the carrying out of works or adaptation or the provision of additional facilities designed to secure greater comfort, safety or convenience; (f) facilitating or taking of holidays; (g) the provision of meals for the person in their home or elsewhere; and (h) the provision for the person or assistance of that person in obtaining a telephone and any special equipment necessary to enable him to use the telephone.

Section 254 of the National Health Service Act 2006 provides that the services described in Schedule 20 to the Act in relation to the care of mothers, prevention, care and aftercare and home help and laundry facilities are functions exercisable by local social services authorities. Schedule 20 provides, insofar as material, in paragraph 2 that a local authority may, with the Secretary of State’s approval, and to such extent as he may direct, must, make the arrangements mentioned in sub-paragraph (2). Those arrangements are for the purpose of the prevention of illness, for the care of persons suffering from illness and for the aftercare of persons who have been suffering from illness and in particular for the provision of centres or other facilities for training such people or keeping them suitably occupied and the provision of ancillary or supplemental services. Under approvals and directions made by the Secretary of State, the Secretary of State has approved the making by local authorities of such arrangements, thereby empowering (but not requiring) them to do so.

Section 7(1) of the Local Authorities Social Services Act 1970 (“LASSA 1970”) provides that “local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the secretary of State.”

Miss Richards submitted that this was a case in which relief ought to be refused, if for no other reason, because it was one in which alternative remedies were available. That submission was based upon the extensive statutory complaints procedure provided for in cases like this by the Local Authority Social Services Complaints (England) Regulations 2006 (“the 2006 Regulations”). (Footnote: ¹)

The 2006 Regulations provide for three stages of complaint and dispute resolution, first by way of “local resolution” (reg. 7), secondly by “investigation” (reg. 9) and thirdly by a “review panel” (reg. 12). The 2006 Regulations are supplemented by very full procedural Guidance, issued by the Secretary of State, in a document entitled “Learning from Complaints – Social Service Complaints Procedure for Adults”. There is also a local document about the Council’s own complaints procedures upon which Mr. Prescott relied in argument and to which I shall return. There is in addition the procedure for reference to the Local Government Ombudsman.

It is necessary to go back for a moment to s. 7(1) of LASSA 1970 and the guidance issued by the Secretary of State, namely FACS. It is the Claimants’ case, as finally presented, that the assessments made by the Council here do not comply with that Guidance. The status of such guidance documents has been considered in two cases to which I was referred by Miss Richards; they are R v Islington LBC, ex p. Rixon (1996) 1 CCLR 119 (Sedley J, as he then was) and R (B and H) v Hackney LBC [2003] EWHC 1654 (Admin) (Keith J). In the Rixon case Sedley J said this,

“What is the meaning and effect of the obligation to ‘act under the general guidance of the Secretary of State’? clearly guidance is less than direction, and the word ‘general’ emphasises the non-prescriptive nature of what is envisaged. Mr McCarthy, for the local authority, submits that such guidance is no more than one of the many factors to which the local authority is to have regard. Miss Richards submits that, in order to give effect the words ‘shall … act’, a local authority must follow such guidance unless it has and can articulate a good reason for departing from it. In my judgment Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while ‘guidance does not compel any particular decision’ (Laker Airways v Department of Trade [1967] QB 643, 714 per Roskill LJ), especially when prefaced by the word ‘general’, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”

Mr Prescott relied upon the further passage from Sedley J’s judgment at p. 128 (Footnote: ²) to the following effect:

“It is Miss Richards’ first submission that in order to comply with the statutory duties, both personal and ‘target’, and to demonstrate that regard has been had to other relevant matters, the local authority must prepare a care plan which addresses the issues required by law and, where it deviates from the target, explains in legally acceptable terms why it is doing so. Mr McCarthy responds by pointing out first of all that nowhere in the legislation is a care plan, by that or any other name, required. This Miss Richards accepts, but she contends, in my judgment rightly, that she is entitled to look to the care plan (which is commended in the statutory policy guidance) as the best available evidence of whether and how the local authority has addressed Jonathan’s case in the light of its statutory obligations. If, of course, further evidential material bears on this question, it too is admissible in relation to the challenge before the court. In other words, as I think Mr McCarthy accepts, his submission that a care plan is nothing more than a clerical record of what has been decided and what is planned, far from marginalising the care plan, places it at the centre of any scrutiny of the local authority’s due discharge of its functions. As paragraph 3.24 of the policy guidance indicates, a care plan is the means by which the local authority assembles the relevant information and applies it to the statutory end, and hence affords good evidence to any inquirer of the due discharge of its statutory duties.”

In Rixon Sedley J was specifically considering guidance under s.7 of LASSA 1970, the section that applies here. In B and H Keith J was considering whether a guidance booklet issued by the Secretary of State constituted “directions” for the purposes of s. 47(4) of the National Health Service and Community Care Act 1990 and he held that it did not. At paragraph 18 of the judgment, the judge said,

“I do not comment on whether the language of section 47(4) requires a more stringent view to be taken of any directions given by the Secretary of State, but I rather doubt whether the policy guidance given in the booklet amounted to “directions”. And since the language of section 47(4) is so different from that of section 7(1) of the 1970 Act, I doubt whether much help can be obtained from the way in which section 7(1) has been interpreted. In short, I do not think that when local authorities carry out an assessment to which section 47(1) relates, they need do any more than take into account what the booklet contains.”

Mr Prescott also took me to certain passages in the speeches in R v Ashworth Hospital Authority, ex p. Munjaz [2005] UKHL 58 which was concerned with guidance issued by the Secretary of State under s. 118(3) of the Mental Health Act 1983. From these authorities he urged upon me, and I accept, that statutory codes like FACS should only be departed from for good and sufficient reason.

With that introduction to the guidance document, it is necessary to set out or at least to summarise some of the primary provisions of FACS as identified by the parties. First, it is clear from FACS and the Local Government Circular accompanying it (LAC (2002) 13) that local authorities are entitled to take into account their resources in setting eligibility criteria for care services. For present purposes, FACS then goes on to make the following material provisions:

“A fundamental aspect of this guidance is for individual councils to make only one eligibility decision with respect to adults seeking social care support; that is, whether they are eligible for help or not. This decision should be made following an assessment of an individual’s presenting needs. Councils should not operate eligibility criteria for specific types of assessment; rather, the scale and depth of the assessment should be proportionate to the individual’s presenting needs and circumstances. Neither should councils operate eligibility criteria for different services to meet eligible needs. The most appropriate and cost-effective help should be determined by matching services to eligible needs through the use of statements of purpose.”

“Interpretation”

“In this guidance the issues and problems that are identified when individuals contact, or are referred to, councils seeking social care support are defined as “presenting needs”. Those presenting needs for which a council will provide help because they fall within the council’s eligibility criteria, are defined as “eligible needs”. “Eligibility criteria” describe the full range of eligible needs that will be met by councils having taken their resources into account.”

Setting the eligibility criteria

“Councils should use the following eligibility framework to specify their eligibility criteria. In other words, they should use the framework to describe those circumstances that make individuals, with the disabilities, impairments and difficulties described in paragraph 14, eligible for help. The eligibility framework is based on the impact of needs on factors that are key to maintaining an individuals independence over time. …”

“The eligibility framework is graded into four bands, which describe the seriousness of the risk to independence or other consequences if needs are not addressed. The four bands are as follows:

Critical

…

Substantial

…

Moderate

…

Low

…

In constructing and using their eligibility criteria, and also in determining eligibility for individuals, councils should prioritise needs that have immediate and longer-term critical consequences for independence ahead of needs with substantial consequences. Similarly, needs that have substantial consequences should be placed before needs with moderate consequences; and so on.”

FACS goes on to give guidance on the assessment process as follows:

“General principles of assessment

“Appropriate assessment lies at the heart of effective service delivery for a whole range of health and social care provision. Its purpose is to identify and evaluate an individual’s presenting needs and how they constrain or support his/her capacity to live a full and independent life. Councils should ensure that individuals are active partners in the assessment of their needs. …

With reference to section 47(1) of the NHS and Community Care Act 1990, before starting a community care assessment councils should first ascertain whether a person appears to be in need of community care services. In exercising this judgement councils set a low threshold, and avoid screening individuals out of the assessment process before sufficient information is known about them.

In addition, reference should be made to the relevant policy and practice guidance for assessment and care planning for particular groups: … .

Whichever assessment framework is used, councils should not operate eligibility criteria to determine the complexity of the assessment offered; rather the depth and breadth of the assessment should be proportionate to individuals’ presenting needs and circumstances. Based on their judgment, professionals may wish to carry out initial assessments, or assessments to take stock of wider needs, or specialist assessments of particular needs, or comprehensive assessment across all potential needs. In many cases, combinations of these assessment types may be used.

… In addition to social care problems, where appropriate, assessment should take account of health and other problems such as housing, but at the same time aim to be as simple and timely as possible. Councils should recognise that individuals are the experts on their own situation and encourage a partnership approach to assessment. …

In responding to the individual’s account of his/her presenting needs, professionals should explore the intensity of particular needs including the physical pain, distress or disruption they cause, and the instability and predictability of problems, both on a day-to-day basis and over longer periods of time. …

As presenting needs are fully described and explored, the individual and professional should consider and evaluate the risks to the independence that result from the needs both in the immediate and longer term. This evaluation should take full account of how needs and risks might change over time and the likely outcome if help were not to be provided. The evaluation of risks should focus on the following aspects that are central to an individual’s independence:

Autonomy and freedom to make choices.

Health and safety including freedom from harm, abuse and neglect, and taking wider issues of housing and community safety into account.

The ability to manage personal and other daily routines.

Involvement in family and wider community life, including leisure, hobbies, unpaid and paid work, learning, and volunteering… .

Determining eligibility in respect of individuals

Eligibility for an individual is determined following assessment. As part of the assessment, information about an individual’s presenting needs and related circumstances is established, and should be recorded. This information is then evaluated against the risks to his/her autonomy, …

Care planning

If an individual is eligible for help then, together with the individual, councils should develop a care plan. The written record of the care plan should include as a minimum:

A note of the needs and associated risks.

The preferred outcomes of service provision.

Contingency plans to manage emergency changes.

Details of services to be provided, and any charges the individual is assessed to pay, or if direct payments have been agreed.

Contributions which carers and others are willing and able to make.

A review date… .

Reviews

From 7 April 2003, councils should begin to review the circumstances of all individuals in receipt of social care services, provided or commissioned by the council or purchased with direct payments. …”

There should be an initial review within three months of help first being provided or major changes made to current services. Thereafter, reviews should be scheduled at least annually or more often if individuals’ circumstances appear to warrant it …”

Difficulty has arisen in this case because of the inter-relationship of the statutory provisions and guidance set out in section (C) above and a welfare programme called “Supporting People” set up under s. 93 of the Local Government Act 2000. (“LGA 2000”) Section 93(1) provides as follows:

“The Secretary of State may, with the consent of the Treasury, pay grants to local authorities in England towards expenditure incurred by them in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State. ”

A document entitled “Supporting People Programme Grant for 2007 to 2008” makes specific provision for the grant as follows:

“1)

This Grant Determination is made by the Secretary of State for Communities and Local Government (“the Secretary of State”) under section 93 of the Local Government Act 2000 (“section 93”) for the purpose of paying grant (“Supporting People programme grant”) to local authorities towards their expenditure in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State.

2)

This Grant Determination –

a)

determines the welfare services in respect of which these grants are paid;

b)

determines the amount of grants and the manner of their payment to those local authorities;

c)

specifies the local authorities to which the grants are paid; and

d)

determines the terms and conditions on which these grants are paid to local authorities… .

Welfare services in respect of which grant may be paid

6)

Pursuant to section 93(1), the Secretary of State hereby determines that grant is to be paid towards eligible expenditure by an Administering Authority in providing, or in contributing to the provision of, welfare services described in condition 2…

9)

Pursuant to section 93(5) and (6), the Secretary of State hereby determines as the conditions imposed on Administering Authorities in respect of the payment of the grant the conditions set out in Annex B.”

Annex B then provides,

“1.

The payment of Supporting People programme grant monies to an Administering Authority pursuant to section 93 shall be subject to the following conditions.

Use of grant monies and eligible expenditure

2(1) An Administering Authority shall use Supporting People programme grant monies only in connection with the provision of welfare services to vulnerable people where each of those services falls within at least one of the categories set out in Schedule 1 (“eligible welfare services”).”

“Eligible welfare services” are defined as having “the meaning given in Condition 2”. In Schedule 1 one finds the following: “

“Condition 2…

1(1) Subject to paragraphs 2 to 6 below, the categories referred to in condition 2 above are those mentioned in the following provisions of this paragraph.

Housing-related support services

(2)

Support services which are provided to any person for the purposes of developing that person’s capacity to live independently in accommodation, or sustaining his capacity to do so, and in this Schedule such services are called “housing-related support services”.

Occasional welfare services

(3)

Other welfare services which are provided by those delivering housing-related support services to a service recipient and which are services ancillary to housing-related support services.

6.

A welfare service shall not be regarded as an eligible welfare service if it is the provision of –

a)

services by the Administering Authority in satisfaction of a statutory duty placed on that authority;

…”

Schedule 1 also provides for further eligible welfare services under the following heads “Handyperson Services”, “Adult Placement Services” and “Payments in respect of tenancy deposits”, but these are not directly relevant to the present matter.

One sees from Annex A to the Grant document that, in the year 2007-8, £10,341,400 was to be paid to the Council under this scheme to be applied in the manner indicated. Grants to councils ranged from as little as £1,846 (for the Isles of Scilly) to as much as £51,912,681 (for Birmingham).

Within the Council, as a matter of administrative practice, the “Supporting People” (“SP”) grant is managed by the Regeneration Department, rather than by the Social Services Department which deals with the other welfare services that are in issue in this case. It is possible that to some extent in the present cases the left hand of the Council has not known what its right hand was doing.

For the purposes of applying its SP grant the Council enters into contracts with various service providers, such as SIL, to provide the welfare services which are to be funded from the grant. In the case of SIL the contract is, I am told (although I was not taken to the document), in respect of services to be provided at three properties called Salisbury Court, Talbot House and Carrigeen. Under the contracts the Council pays SIL £257.25 per client per week for clients with tenancies at Salisbury House; £51.45 per client per week at Carrigeen and £44.97 per client per week at Talbot House. I was told that the contracts specify the number of staff, the support hours and type of support that are to be provided. In respect of these payments, the services to be provided are identified.

In assessing any person’s care needs under FACS the Council takes into account whether or not that person is in receipt of benefit or services by dint of being a resident in one of the properties attracting payment under the SP programme.

The Proceedings

The history of events leading up to the institution of proceedings is of importance in this case. All the Claimants (save one) had a history of dealings with the Council’s social services department. On 10 and 15 September 2008 the solicitors who act for each of the Claimants sent letters of complaint to the Council. Each of those letters alleged, in bald terms, that the Council was in breach of its duty under s. 47 of the 1990 Act in that it had “failed to comply with its legal duty under [that section] by carrying out an assessment of the above named complainant’s needs”. In other words, the allegation was that the Council had not assessed the Claimants at all and, in my judgment, it was reasonably so understood by the Council in that sense. In each case it was asked that the matter be referred immediately to stage 2 of the complaints procedure. It was also peremptorily required of the Council that it should

“confirm within 7 days … that it will within 14 days carry out a multi-disciplinary assessment of our above named client in accordance with its legal obligations under the following legislation/statutory guidance”. ”

Reference was then made to s. 47 of the 1990 Act, FACS and “Valuing People: A new strategy for learning disabilities for the 21^st Century”.

On 1 October 2008 the Council replied to the letters, stating that it was felt that stage 1 of the complaints procedure was more appropriate and proceeded to set out the current position in respect of each of the Claimants. The Council was able to indicate that, contrary to the allegation made in the complaint letters, in the cases of all but one claimant (who was unknown to the Council as a welfare claimant at all), assessments had been completed or reviewed or that current social work was being carried out. The letter went on to say this:

“As you can see from this information most of your clients have been assessed or reviewed within the past 12 months. Of course if any of your clients needs have changed, and they require a further assessment / review, please let this Department know how their needs have changed. Please forward this information to our Central Advice and Duty team (Cheshire Lines Building, Canning Street, Birkenhead, CH41 1ND; tel 606 2006), and an assessment / review will be arranged through our normal procedures.

If any of your clients require additional, specific advocacy for the complaints procedure then they can contact the Independent Complaints Advocacy Service (ICAS). I enclose information on this service, who will provide advocacy within this area of social care, for you to share with your clients.

This letter constitutes the response at Stage 1 of our complaints procedure.”

Two days later, without any further request for engagement of the complaints procedure, whether at stage 2 or otherwise, judicial review pre-action protocol letters were sent by the Claimants’ solicitors to the Council. Those letters also alleged again that the Council had failed to carry out any assessment of the Claimants’ needs under s.47 of the 1990 Act and made no reference to the Council’s letter of 1 October which had stated that assessments had indeed been carried out in almost all the cases and had identified them. (Footnote: ³)

By further letter of 7 October 2008 to the Council, the Claimants’ solicitors stated that,

“You have totally failed to address our clients’ complaints and we are therefore proceeding towards the issue of judicial review proceedings…Please produce copies of any and all assessments allegedly completed…(together with reviewed assessments if applicable) on or before Friday, 10 October 2008 at 12 pm… In our original letters of complaint we required you to confirm within 7 days that you would within 14 days thereof carry out legally compliant community care assessments in respect of each of our clients. You failed to respond to this correspondence within the stipulated time period and we still have not received copies of any assessments…”.

An initial response to the protocol letters was sent by the Council’s Director of Law on 8 October in these terms:

“I am aware that you have, on behalf of your clients, complained to the department of adult social services (DASS) regarding your clients Community Care Assessments or lack thereof and that these complaints were being addressed within the Local Authority’s published complaints procedure.

As you are no doubt aware judicial review is a remedy of last resort and that parties should only have recourse to the judicial review process when all other avenues of dispute resolution have been exhausted.

There are three stages to the local Authority’s complaint process but despite this and without even waiting for a response from stage 1 of the process you have drawn up pre action letters for judicial review on behalf of your respective clients. This action is clearly outside of the protocol.

In addition you have sought to abridge the protocol period for responding to pre action letters and have asked for responses by 4pm on Friday 10^th October 2008; whilst it is accepted that there is provision within the CPR to do this, it should only be done in exceptional circumstances; please identify what these exceptional circumstances are, by 4pm on Thursday the 9^th October 2008, failing which the Local Authority will respond within the normal protocol time scales.”

No response to this letter was received. However, on 10 October the Claimants’ solicitors wrote to say that, in the absence of a response to the protocol letters, Counsel was “in the process of settling judicial review proceedings”. In that letter, the solicitors stated that additional issues would be raised to the following effect: a) the alleged failure to involve the Claimants in the assessments (for which leave to apply was subsequently refused), and b) the point based on Heffernan (which was abandoned at the hearing before me). It was said that in the absence of a response by “Wednesday October 2008 at 12 pm” (presumably meaning 15 October) the right to issue proceedings without further notice was reserved.

On 17 October, the Council made brief response to the two additional grounds of complaint that had been identified on 10 October. On 17 October the Council responded substantively to the protocol letters in respect of all but three of the Claimants. One response (illustrative of the response in each case), in respect of a claimant, whom I shall call “GB”, was in these terms:

“5.

The Defendant’s response to the matter being challenged.

5.1

WMBC denies that it has failed to comply with its legal duty under the National Health Service and Community Care Act 1990 (NHSCCA).

5.2

An assessment of [GB] was undertaken by the Department of Adult Social Services. The completed assessment document is dated 11^th October 2007. [GB] has approved the assessment document and signed it himself. A copy of the assessment document and care plan is enclosed for your information.

5.3

As the assessment did not identify any unmet FACS eligible needs [GB’s] case was closed to the care management team. However, if the Claimant has identified a change in needs since his assessment was undertaken then a referral should be made to the Central Advice and Duty Team (CADT) on Tel: 606 2006 whereupon a social worker will be allocated to undertake a review of this assessment.

6.

Response to the issue raised.

6.1

WMBC denies that it has failed to comply with its legal duty under NHSCCA 1990, Sc 47(1). An assessment of [GB] has in fact been undertaken by WMBC and a copy provided, as identified in 5.2 above.

6.2

WMBC accepts that a letter of complaint was forwarded to the Quality Assurance Unit on the 10^th and 15^th September 2008 on behalf of [GB]. This complaint was dealt with at stage 1 of WMBC’s three stage complaints process.

6.3

A response to the complaint was provided by way of letter dated the 1^st of October 2008, within WMBC’s published time scales for responding to complaints. A copy of the letter of response is enclosed.

6.4

The letter of response identified

6.4.1

That the assessment had been undertaken.

6.4.2

That the reviews had been undertaken where appropriate.

6.4.3

That some complainants had no unmet FACS eligible needs and so were not subject to review.

6.4.4

Invited either the complainant or the complainant’s representative to report any change of circumstances or unmet needs to the Central Advice and Duty Team for a review assessment.

6.5

The Claimant has not requested that his complaint progress to Stage 2 of the Complaints process.

6.6

The Claimant has not contacted the Central Advice and Duty Team to report a change in circumstances or an unmet need.

6.7

Pre-action letters for Judicial Review were produced before receipt of the Defendant’s response to the complaint made.

6.8

The complaint made was only at stage one of a three stage process.

6.9

The Defendant states that Judicial Review should be treated as a remedy of last resort and that Judicial Review is not the appropriate arena for discussing the assessment process.

In support of this assertion the Defendant would wish to refer the Claimant to the following cases. …”

Responses by the Council to the protocol letters sent on behalf of the remaining Claimants were sent on 23 October. No further correspondence was received from the Claimants’ solicitors.

Then, notwithstanding the earlier protestations of urgency made by the Claimants’ solicitors in the correspondence, nothing further happened until these judicial review proceedings were issued on 9 December 2008, accompanied (in spite of the 6 week delay) by a request for urgent consideration, asking that the application for permission be considered by a judge within 24 hours. As a result of that application, the papers came before Mr Anthony Edwards-Stuart QC (sitting as a Deputy Judge of the court) on 11 December 2008.

In the Grounds of Claim the Claimants had identified 4 “lead Claimants” of their own choosing falling into four different categories, as follows: a) those receiving no funding from “the Defendant” or Supporting People; b) those receiving Supporting People funding but no social services funding; c) those receiving social services funding but no Supporting People funding; and d) those receiving funding from both sources. It was said that none had been lawfully assessed nor had they been provided with a care plan as required by law and that, therefore, it was impossible to tell whether they were in receipt of proper funding for their needs. The evidence in support of the claim, a witness statement of Mr. Wilberforce, dealt only briefly with the positions of the four lead Claimants and no others.

Mr Edwards-Stuart ordered the Claimants to prepare and serve upon the defendant in the case of the four lead Claimants, and in no more than four other cases, preferably in the form of a schedule, a concise statement of the nature of the case in respect of each of the five heads of claim identified. In his observations on the Order that he had made Mr Edwards-Stuart said this:

“The application is lacking in consistency in that the contents of the pre-action letters are not fairly reflected in paragraph 7 to 10 of the grounds. It appears that 20 of the 26 Claimants have in fact been assessed. Although there may be issues about the adequacy of those assessments, that is arguably not an appropriate subject of judicial review.”

(My emphasis)

In my judgment, as will appear hereafter, those were prescient words.

In response to the Deputy Judge’s order the Claimants lodged a “Note for the Court”, with accompanying schedules, dealing with each of the lead Claimants, but with no others. The Deputy Judge’s observation quoted above was answered in this way:

“There were a number of letters sent pre-action which canvassed the issues that are now pursued in these proceedings. It is not clear from the Deputy Judge’s observations in what way the issues raised pre-action are not fairly reflected in the Grounds. The adequacy of the assessments is a matter for judicial review because of the fundamental errors of law that are apparent (see attached schedule). Where judicial review is not appropriate is where there is argument on the detail of the assessment. That is not this case. It is submitted that this is a clear case for judicial review.”

The schedules, under grounds (b) and (c) stated principally as follows:

“1(b) …[The] purported assessment dated…fails to identify his “presenting needs”…There is therefore no evaluation of his presenting needs against the risk that they present to his independence etc. as required by the FACS Guidance [42]…As a consequence of this failure the needs set out in the care plan are superficial and do not address the extent or nature of [X’s] needs as required by the FACs Guidance at [42] & [47]…

“1(c) Given that there has been no identification of [X’s] eligible needs, his care plan is inevitably inadequate. There is moreover no contingency plan as required by the FACs Guidance para [47] (Footnote: ⁴)

1(e) [In F’s case] SIL receives no payment for the social care support which it provides to F..

[In J’s case] No funding is provided to SIL in respect of the “substantial support” which it provides…

[In S’s case] WMBC does not fund the additional support being provided to S since the loss of Supporting People funding.

[In R’s case] R needs 1:1 support. WMBC pays £529.35 per week for this…Their assessment does not set out how this figure is arrived at. It appears to be arbitrary in that it is not based on any detailed assessment of need. It is therefore unclear whether WMBC are providing funding in respect of the level of support provided by SIL to R, as required by him.”

The Council served its Summary Grounds on 21 January 2009. Those grounds stated in the clearest possible terms that the Council contended that complaints as to the details of individual assessments and/or care plans were not appropriate for Judicial Review. Reference was made to R v Barking LBC, e p. Lloyd [2001] EWCA Civ; Lambeth LBC v Ireneschild [2007] EWCA Civ 234, paragraph 34, R (P) v Essex CC [2004] EWHC 2027 (Admin) and to Cowl v Plymouth CC [2001] EWCA Civ 1935.

At this point it also emerged that in the case of F and 6 other Claimants that they had previously lived at SIL accommodation in respect of which a SP contract was in place. However, each of these Claimants moved to other SIL accommodation for which no such contract existed. This fact had not been appreciated by the Council and no contact had been made to appraise it of the moves to new accommodation. In the Summary Grounds of Defence, the Council indicated its proposal to re-assess each of these Claimants within the ensuing 6 weeks.

These seven Claimants were within the group of nine Claimants in respect of whom it was said that no funding was in place. The remaining two Claimants in this group were a Mr. JA and Miss SW in respect of whom the claims were abandoned late in the course of the hearing before me. Miss W was the claimant who was unknown to the Council as a potential benefit claimant; she was and is, in fact, the domestic partner of Mr. JA. He had been in sporadic contact with the Council’s Community Mental Health Team and, as a result, had had a long history of assessment by a consultant psychiatrist. No specific complaint on the part of Mr. A was identified anywhere in the proceedings. It appears that he has now been fully assessed and has been found to have no eligible needs. At the time of the hearing, the Council was awaiting an opportunity to discuss the assessment with Mr A.

On 3 February 2009 permission to apply for judicial review was granted by Mr Justice Plender. The five weeks for lodging Detailed Grounds of Defence and evidence in opposition thus expired on 10 March. They were in fact served on 12 March. The evidence was very extensive and dealt with the cases of each claimant in considerable detail. The evidence comprised a very full statement of Miss Sheila Finnegan-Jones, the Council’s Acting Service Manager responsible for the strategic management of assessment and care management services, dealing with the cases of all the Claimants individually, together with further statements from individual social workers who had dealt with particular cases.

From the Council’s Detailed Grounds and its evidence it emerged that in the case of seven further Claimants their needs had been assessed as “critical” or “substantial” and they were being met by the provision of community care services: see paragraph 11 of the Detailed Grounds.

No evidence in reply was served by the Claimants. Notwithstanding the provisions of paragraph 15 of the Practice Direction to CPR Part 54, no skeleton argument on the part of the Claimants was provided until 1617 hours on the day before the hearing (28 April 2009). The skeleton argument then presented identified two questions as “key issues”:

“(1)

Whether the Defendant has failed to carry out community care assessments with respect to some all of them [i.e. the Claimants], either at all, or on an (at least) annual basis;

(2)

Whether in cases where the Defendant has carried out community care assessments with respect to (a number of the Claimants, it has done so unlawfully, in that the assessments in question fail to comply with the requirements of the statutory guidance contained in …FACS…”

The skeleton argument then in paragraph 7, 8 and 9 addressed argument on the point “[w]hether or not assessments were being done annually…” and summarised the position on this point over the next 3 to 4 pages. Then the document turned to the second question: “Whether Lawful Even in Those Cases Where Carried Out”. The issue of the Council’s website is summarised and the concluding paragraphs 13 and 14 says this:

“It is against that background that the Court needs to address the purported performance of the defendant that is complained of. What they did, and not just a pro forma statement.

This breaks down into the following headings:

(a)

Is it an excuse to say that a given case, which otherwise qualifies, falls within a box marked “Supporting People”? How a given case is funded is not a matter for any given claimant, but rather a matter internal to the defendant. Therefore, the fact (if it is a fact) that the funding ought to be coming out of “Supporting People” (and hence ultimately from central government monies) is irrelevant. It remains the duty of the Defendant to pay for the support.

(b)

Is it an excuse to say that a given case, which otherwise qualifies, should not be funded by the Defendant because the support is being provided by SIL? The answer is, plainly not.

(c)

Although the Defendant claims to have done a number of assessments, this of itself does not prove they were FACS compliant not (sic) does the say-so of the Defendant. Thus in several cases it is plain from the assessment forms themselves that the mental health and mental capacity of the claimant was simply not addressed.

(d)

Likewise, in some cases the assessment does not address the consequence of the claimant of withdrawing existing support (contrary to paragraph 40 of FACS).

(e)

And finally, even if everything is complied according to the Defendant’s own criteria (and irrespective of what those may be), there is a failure to fund.”

When the case was opened by Mr Prescott on the following day, it emerged that the thrust of the complaint now being pursued was largely as to the detail of the individual assessments and the care plans, including in some cases alleged failures to review assessments after 12 months in accordance with paragraph 60 of FACS. This last criticism had not been pleaded at all and, in the face of Miss Richards’ objection on this ground, an application was made to amend the Grounds of Claim. I shall return to that application at the end of this judgment.

Discussion

It will be appreciated from what is said above that, in my judgment, the manner in which this claim has been conducted on behalf of the Claimants has been most unsatisfactory. The case began with a stark complaint that the Council had not assessed the Claimants at all pursuant to the statutory obligation. This was accompanied by a peremptory demand that the complaint should be dealt with under stage 2 of the complaints procedure. Not surprisingly, in view of the fact that assessments had in fact been carried out in the vast majority of the cases, the Council declined to invoke the stage 2 process and simply provided a schedule of the assessment position under the stage 1 procedure. Notwithstanding this, protocol letters followed. These maintained the allegation that assessments had not been carried out at all. In the grounds of claim the four lead Claimants were picked at random by the Claimants’ advisers and, as was pointed out by the Deputy Judge on 11 December, there was an inconsistency between the pre-action letters and the claim lodged, in that the letters asserted an absence of any assessments and yet the claim proceeded to criticise the assessments of and the care provision for four named individuals. As the Deputy Judge said, the criticisms of the assessments immediately raised questions as to the suitability of the case for judicial review.

In the circumstances, I propose to confine my attention in the remainder of this judgment to the following matters: 1) the cases of the four “lead Claimants” and a summary of the positions of the remaining Claimants, 2) Mr Prescott’s argument based upon the Council’s website and his principal criticisms of the assessment and care plan documents and 3) the appropriateness or otherwise of this case for judicial review and alternative remedies. In conclusion, 4) I shall address the application to amend the Grounds of Claim. I can say immediately, however, that I intend to refuse the application.

In the absence of any evidence in answer to the Council’s detailed statements I find that I can summarise the factual position by relying upon the evidence there given and summarised in the Council’s Detailed Grounds and Miss Richards’ skeleton argument.

Mr F is a tenant at a property owned by SIL. He had previously lived at a different SIL property where SP funding was being paid under a contract with the Council. The move to the new property (where no SP contract is in place) was not notified to the Council. Mr F was assessed by the Council in September 2007; this was done on a “face-to-face” basis with assistance from a support worker from SIL. At that stage it was determined that Mr F’s needs were being met by the SIL support under the contract at the first property. When it was discovered that no SP funding was available at the second property a new assessment was undertaken in February 2009. The re-assessment and care plan were agreed with Mr F and the support worker from SIL on 6 March 2009. It was found that Mr F could communicate verbally and had no mobility problems. He has no “challenging” behaviours and is largely independent in terms of personal care, although requiring some assistance in dressing in the mornings. He can manage laundry. He is unable to prepare hot meals but has access to the local area and can get a hot meal while out. He requires support in dealing with bills. The majority of needs have been assessed as being in the low or moderate ranges and thus not qualifying for care services. However, he has some needs in relation to aspects of his domestic routine in the substantial category. Occupational Therapy intervention is planned.

Mr J has a learning disability. He lives at an SIL property in respect of which SP support is paid at the rate of £51.45 per week. He previously lived at a different property at which support for him was paid to SIL at the rate of £257.25 per week until 12 September 2004. Since that time the sum of £51.45 has been paid. The move from the first to the second property appears to have been justified by Mr J having less intensive needs for care services now than in the past.

Mr J’s needs were assessed in September 2007, with the assistance of an SIL support worker. The statement of needs and care plan were signed by Mr J. The assessment concluded that Mr J was largely independent and identified areas in which he needed prompting or assistance. In one respect he was found to have a “substantial” need. This was in respect of cooking a main meal without exposing himself to a risk of scalding. He was referred to a domestic skills assessment by an occupational therapist. Help was provided in this respect between January and September 2008. The OT assessment does not appear to have identified a continuing need since then.

Since September 2004 Mr S has lived at Salisbury Court. He had previously lived at Talbot House. The support regime at Talbot House is less intensive than that at Salisbury Court. In both properties, Mr S has received SP and social services funding. He was assessed in October 2008 with the assistance of the SIL manager of Salisbury Court. This manager is recorded in the assessment as having said that the amount of support that Mr S gets is “about right” and that the care regime at Salisbury Court had been excessive for him. Since the move, therefore, the support services provided by SIL have been reduced but SIL has continued to claim payment on the basis of Mr S’s continued receipt of the more intensive package. It appears that Mr S has no continuing eligible needs within the meaning of FACs.

Mr R lives at Salisbury Court and accordingly he receives SP funding at the rate of £257.25 per week paid to SIL. He also receives community care services funded by the Council totalling £529.35 per week. This has been in place since 2006 and gives to Mr R 1:1 support with some activities and outside his domestic environment. A review of his care arrangements was carried out in November 2007. Again this was carried out on a “face to face basis” with the assistance of a support worker from SIL. The statement of needs was signed on Mr R’s behalf by that support worker. No complaint as to the level of services provided has been made on Mr R’s behalf to the Council. Mr R’s needs have in some respects been assessed as either “critical” or “substantial” and are being met accordingly.

No specific pleaded case has been made in respect of any of the other Claimants and no evidence in relation to them has been given either as to their needs or the process of assessment in their cases. As already noted, Mr Wilberforce’s statement is confined to the cases of the “lead Claimants”. In the circumstances, I do not propose to go into the factual position with regard to the assessments of those Claimants. It suffices to say that their cases have been fully reviewed in the evidence filed by the Council and no contradiction of that evidence has been produced by way of evidence in reply. In addition, in her skeleton argument, Miss Richards has summarised the position with regard to each of these Claimants as it stood at the date of the hearing and I am unable to detect any error of law in the manner in which the Claimants entitlements have been considered by the Council

It is convenient first to address the point arising out of the extract from the Council’s website. I have already set out above the passage in FACS describing the concepts of “critical” and “substantial” needs. The Claimants, in oral argument, pointed out that, prior to these proceedings the website contained a summary of the FACS assessment process. It explained the concepts as follows:

“The levels of risk are:

•

Critical – for people with the most severe or urgent needs- where there is an immediate risk of major harm/danger to yourself or others, or major risk to independence now or in the next few days

•

Substantial – for people whose needs are serious, but not critical –where there is a risk of significant impairment to health or independence now or withinthree months….” (My emphasis)

The Claimants point out that after the commencement of the proceedings the Council altered this website entry so that the two “bullet points” now read:

“Critical – for people with the most severe or urgent needs – for example, where there is immediate risk of significant impairment to health or major harm/danger to yourself or others, or major risk to independence now or in the next few days.

Substantial – for people whose needs are serious, but not critical – for example, where there is the risk to independence now or within three months. ”

It is submitted that both these versions of the website introduce temporal qualifications of the definitions of “critical” and “substantial” which do not appear in the FACS document itself. So, it is said, this is an indicator that the Council is not applying the statutory guidance lawfully and is applying an over-rigid definition in each case.

This is a rather different point from that which was made when the website document was first introduced by the Claimants. This was done in the “particulars” provided pursuant to Mr. Edwards-Stuart’s order of 12 December. The point then made with regard to the website (referred to as the Council’s policy) was:

“i)

LAC (2002) 13 (“the FACS Guidance) provides… that significant health problems give rise to “critical needs”, i.e. not substantial, moderate or low needs…

ii)

The Defendant’s … policy (attached (Footnote: ⁵)) provides that “risk of significant impairment to health” gives rise to “substantial” needs.

iii)

This is unlawful for the reasons given by Collins J in Heffernan”

In answer to that point, Mr Richard O’Brien, the Council’s Head of Branch for Access and Assessment Services, made a witness statement. He said that the website did not represent the Council’s policy, but was merely designed “to provide information to the public in more readily digestible form than either the FACS guidance or the Council’s formal policy statement”. Mr. O’Brien produced that statement which is in fact identical to FACS in dealing with the definitions of the relevant terms, which he says is followed by social workers in determining eligibility. In the statement, Mr O’Brien addressed the point made about the website in the particulars produced pursuant to the order of 12 December, i.e. the Heffernan point. Not unnaturally, he did not deal with the point made for the first time in the last minute skeleton argument and then in oral submissions by Mr Prescott.

Since the pleaded case referred to the website extract simply in the context of the (now abandoned) argument based on the Heffernan case, I would not grant relief by way of declaration or other formal order on the basis of the new argument raised at the hearing. It does not seem to me to be right to subject a defendant to an adverse order or finding based on an argument raised without warning in this manner. I accept, however, that the phraseology of the website might have given rise to the understanding that the Council was adopting a policy line that was more rigid than FACS itself. However, the Council was never called on the address its evidence to the new point and I confine myself to suggesting that the Council reviews its website material to ensure that it coincides with the policy that it actually applies in these cases.

Again, rightly in my view, the Council criticised the absence of proper particularity in the pleadings of the precise complaints made by the Claimants as to the contents of these documents themselves. Essentially, the principal points made in the end were these:

Mr. Prescott summarised his complaint on the Claimants’ part in the following manner. He said that the assessment and care plans were like a “cheque” which when produced to the Council resulted in the provision of the necessary services. If the “cheque” was not properly drawn up it would be worthless and would be “returned to drawer”. Because, he submitted, there had been a failure properly to identify needs and how they were to be provided for, the Claimants could not cash their “cheques” so as to ensure that they received the necessary services.

In my judgment, it is not necessary to rule on each and every detailed point made by Mr Prescott on the documentation. As will already be apparent, I am quite satisfied that the underlying complaints about the assessments and care plans in these cases are not the proper subject of judicial review. However, I shall comment in general on the bullet points set out in paragraph 57 above and upon Mr Prescott’s summary mentioned in the immediately preceding paragraph.

The assessment and care plan documents in these cases consist of detailed forms that require completion by the relevant social workers. They identify a number of questions that may arise in individual cases and provide prompts to the social workers in respect of specific aspects of “need” that may “present” in those cases. For example, there are sections in the assessment for personal details (name, date of birth, address, relatives etc.), for financial matters, physical health, mental health, communication and mobility, self-care and so forth. “Presenting needs” are not defined by FACS and, as the Council points out, there is no section of the form headed “presenting needs”; thus, the “process of evaluating information about an individual against the risks they present is an inherent part of the exercise that the professional undertaking the community care assessment carries out…[I]t is part of the judgment that the social worker makes as he or she works through the various domains in the assessment and formulates conclusions as to the individual’s eligible needs”. (Miss Richards’ skeleton argument, paragraph 52).

It may be that in an ideal world every box will be ticked or crossed and every question in the form will be answered. However, in the absence of evidence that a “presenting need” has not been properly identified in a particular case, it is impossible to say that the Council has failed in its statutory task. Still less has it fallen into an error of law rectifiable in judicial review proceedings.

Miss Richards’ answer to the criticism of the failure to complete the mental health assessment in some cases was that in those cases no mental health issue was seen to arise. Clearly, it would be helpful in such cases if that was specifically indicated by, for example, the simple device of the abbreviation “N/A”. However, I would not be inclined to hold that an assessment was unlawful simply because those boxes had not been completed.

With regard to the failure to supply completion dates for some assessments, again it would be desirable for orderly administration that the date of completion of an assessment were recorded. However, I do not see that the absence of that detail renders the assessment unlawful.

It is obviously right to criticise the numerous cases in which a Claimant’s signature has been procured on a section of the form stating “I agree/do not agree with the information contained in these documents”. Miss Richards so conceded. The practice is particularly concerning when the signatories are vulnerable members of society, such as some of the present Claimants. During the argument, I expressed my view on this aspect of the completion of the forms and I am confident that the remedy of judicial review is not necessary to secure the issue of the necessary instruction to the Council’s social workers.

Mr Prescott was critical of the apparent assumption made in some of the assessments that SIL will continue to provide care services to some of the Claimants. In my view, Miss Richards is correct in the submission that she makes that the Council does not have to fund all and any service that SIL provides for the Claimants. It has no obligation to SIL to go beyond the contract that it has with SIL in respect of the SP programme and has no obligation to the Claimants beyond making provision for eligible needs under FACS. These proceedings simply are not adapted to define the boundaries between what SIL provides under its contracts with the Council and the Claimants’ other community care needs. It is moreover quite impossible in proceedings of this nature to determine whether SIL is in fact providing care over and above what it is bound to provide under the contracts. It is equally impossible to determine whether any such “over-provision” is in respect of matters for which services ought to be provided by the Council to the individual Claimants as provision for “eligible needs” under FACS. It is not appropriate to resolve such a dispute between SIL and the Council over these matters under the guise of a challenge to the legality of the Council’s community care assessments of the individual Claimants.

Returning to Mr. Prescott’s “cheque” analogy. I do not consider that the provision of community care services works in the way that he contends. It is quite clear that, whatever boxes are or are not ticked in the assessment form and in the care plan documents, local authorities will provide services to meet “eligible needs” as they perceive them to be. That is true in many of the present cases. There is no case which has emerged here in which a claimant’s true eligible needs have not been met because of some deficiency in form filling. The social workers in this case are no doubt conscientious in seeking to fulfil on the Council’s behalf its obligations to proper Claimants. Indeed, the witness statements produced by the social workers in this case demonstrate that fact. There has been no case pointed out where any claimant has truly been left with a proper “eligible need” unmet because some formality in the assessment or care plan process has not been complied with. As already mentioned, there is not a single witness statement from any individual claimant identifying a specific need that should have been identified in the assessments made but was not so identified and accordingly has not been provided for. In truth the dispute arises because SIL considers that it is providing services over and above those which it is obliged to provide and considers that some of these could be supplied by the Council to the Claimants in satisfaction of “eligible needs”. That dispute cannot be resolved in judicial review proceedings.

I have already expressed the view that the underlying dispute between SIL and the Council cannot be resolved in this action. It also seems to me that Miss Richards is right that the claims of the Claimants themselves, such as they might be, are not proper for adjudication on judicial review. While the Administrative Court is astute to correct any illegality of approach on a public authority’s part, it is not the proper forum in which to probe into the adequacy of community care assessments in the manner which Mr Prescott belatedly sought to do in this case. Once the point of principle, turning upon the Heffernan case, was abandoned there was no true issue of law in the case that was properly amenable to judicial review. Mr Edwards-Stuart QC was astute in suspecting this at the outset of the action.

If any of these individual Claimants truly have a grievance in respect of their community care provision it has not been identified here. None of them, for example, says, “I need help in getting myself a hot meal” or “I cannot get out to do my shopping” and “the Council should be providing this”. All has been fought out amongst the abstraction of form filling and the contents of official documents. The process was initiated by an entirely unjustified global complaint that no assessments had been carried out at all. If a claimant has a true claim that his or her eligible needs are not being met by the Council, there is a full and adequate complaints procedure in which that can be resolved.

Even in cases in which such a proper claim exists the courts have pointed out on many occasions that the remedy of judicial review will not be granted where there is an alternative remedy: see especially Pulhofer v Hillingdon LBC [1996] AC 484, R (on the application of L) v Barking & Dagenham LBC [2001] EWCA Civ 533 and Lambeth LBC v Ireneschild [2007] EWCA Civ 234.

In the Barking case there was criticism of the assessments and care plans made in respect of a severely disabled woman living in residential accommodation provided by the local authority. Schiemann LJ identified the criticisms as follows:

“The assessment care plans

What the Council has done and failed to do is criticised as a breach of statute, as a failure to abide by the undertakings given to the court and as a failure to abide by various other alleged promises to Ms L and her relatives. …

… Similarly, there are complaints as to the amount of detail in the assessment and care plans. It is said that they are too vague and do not sufficiently spell out precisely what Ms L’s needs are and what the Council proposes should be done about them. For instance, complaint is made that the care plan does not address in sufficient detail what will be done in relation to holidays or transport or should the applicant vomit during the night. Although the plan envisages that persons will be awake and available at night to deal with such matters, it does not spell out how Ms L is to contact such persons. It is said Ms L needs to have various activities arranged for her and that, although the plan lists such activities as being intended to be provided, it does not identify on which day of the week they will be provided, how often they will be provided and so on. It is said that the amount of consultation with Ms L and her family and advisers was inadequate. In legal terms this is said to amount to a failure by the Council to abide by guidance given by the Secretary of State.”

He concluded (at paragraph 27) in these terms:

“It seems to us however that, leaving aside for the moment any undertakings o the Court, the Court is not the appropriate organ to be prescriptive as to the degree of detail which should go into a care plan or as to the amount of consultation to be carried out with Ms L’s advisers. In practice these are matters for the Council, and if necessary its complaints procedure. If the Council has failed to follow the Secretary of State’s guidance and is arguably in breach of its statutory duties in relation to the way it carries out its assessment and what it puts into its care plans then aggrieved persons should in appropriate cases turn first to the Secretary of State. Where there is room for differences of judgment the Secretary of State and his advisers may have a useful input. The Court is here as a last resort where there is illegality. Here there is not ….”

Similar views are expressed in the judgments in the Court of Appeal in the Ireneschild case, especially by Hallett LJ at paragraphs 71 and 72.

If any of the assessments or care plans is truly inadequate in these cases and such inadequacy is giving rise to a true failure on the part of the Council to meet an eligible need, then the relevant claimant has a proper remedy through the statutory complaints procedure.

Mr Prescott submits that the Claimants did invoke that procedure and asked for immediate resort to stage 2, by-passing stage 1. The complaint letters stated,

“We invite you to agree that our client’s complaint should immediately progress to the investigation stage (stage 2) under paragraph 9 of the Regulations” (that is the 2006 Regulations).

As already indicated, because of the nature of the complaints, the Council decided to deal with them under stage 1. It was not stated in the complaint letters why the complainants thought the matters should proceed straight to stage 2. Mr Prescott argues that the complainants were entitled to require reference to stage 2 immediately. This was by reference to the Council’s document entitled “Procedure Stage 1 Process Version 3.1 where, under the heading “Background” the following is to be found:

“Stage 2 is engaged when stage 1 fails to resolve the issue, or the complainant feels that no use would be served in attempting such a problem-solving approach…”

In answer to these points Miss Richards submitted, first, that when one refers to a later passage in the same procedure document one finds this passage:

“The complainant can request that their [sic] complaint proceeds directly to stage 2. Likewise the Complaint Manager may consider it appropriate that the complainant is progressed directly to stage 2. This should be decided after consultation with the complaint [sic], however the Complaint Manager, will make the final decision considering the matter on its merits”.

Secondly, Miss Richards refers to the brief nature of the complaint that was actually made and the simple terms in which it could be answered. Thirdly, she says there was no request to proceed to stage 2 after the brief initial stage; all that followed were the protocol letters with no reference to the stage 1 complaints decision or any request to proceed to stage 2.

In my judgment, it is no answer to the point that there is an alternative remedy in this case to say, as Mr Prescott submitted, that the procedure was tried and found inadequate. In my judgment, it was adequate for such needs as any of the individual complainants might have. If there was real complaint about any individual assessment or care plan or any true deficiency in the provision of community care the complaints procedure was the forum to which it should have been brought. If it was so brought but was inadequately dealt with at stage 1, then the other stages should have been invoked. No attempt was made to identify any such complaint or deficiency. It was simply contended that there had been no assessments made. That was demonstrably incorrect and was pointed out immediately.

As already indicated, I refuse the application to amend. I agree with Miss Richards’ submission that the court must strive to attain discipline in its approach to proceedings before it. She referred me to two cases: R (B) v Lambeth LBC [2006] EWHC 639 (Admin) per Munby J at paragraph 28, (emphasising the need for a claimant’s case in judicial review to be fully and precisely formulated and, where amendment in made, for that amendment to be properly formulated and timeously presented to the opposite party and the court), and R v Sec. of State for Trade and Industry, ex p. Greenpeace Ltd. per Laws J (as he then was), at p. 424 (emphasising the requirement that applicants identify the real substance of their complaints).

In this case, the application to amend is to add a claim that the Council has failed to carry out annual reviews of the care plans in some of these cases. This was never a pleaded point previously; it had not been raised in the complaint letters or in the pre-action correspondence; it was not an issue raised in the grounds or in the particulars provided pursuant to Mr Edwards-Stuart’s order. The point was first raised in the details concerning individual Claimants in the Claimants’ skeleton argument served late in the afternoon before the hearing. When Miss Richards objected to this additional claim on the first morning of the hearing, it was indicated that a draft amendment would be supplied. However, the matter was not raised again until the third and final day of the hearing, when Miss Richards alluded to the fact that this no longer seemed to be pursued. At that stage the draft amended pleading was produced.

In my judgment, it was by then far too late to apply to amend. As already indicated, there have been many ways in which the presentation of the Claimants’ case has developed unsatisfactorily over the months from September 2008 until it had changed its character entirely by the time the case came to be opened in court. It is unacceptable for this new matter to be presented almost as the arguments were over.

As Miss Richards submitted, there was by “happenstance” just about enough material in the evidence to demonstrate that in a very large number of cases reviews had been undertaken in those cases where they were required, i.e. where eligible needs had been identified in a previous assessment. She argued that in those few cases where reviews had not been undertaken, the Council had been deprived of the opportunity to say why they had not been done or had been done late. Further, she submitted there was no evidence of any real prejudice to any of the Claimants in the case of a late review; accordingly, the argument was academic and the amendment should be disallowed. I agree and the application to amend is, therefore, refused.

Conclusion

For these reasons, this claim for judicial review is dismissed.