L, R (on the application of) v Leeds City Council (Rev 1)

This rolled up hearing in a case concerning the local authority's performance of its duties towards a child suffering from cystic fibrosis gives rise to both troubling procedural and substantive issues.

For a court to intervene in decision making in social care issues is to have it intervene in an evolving situation. It may have become all too easy to lose focus on what is properly the subject of judicial review because of the process of ongoing review by the local authority, the fluctuating needs of the ill child, the varying social circumstances of the family and an entrenchment by the rival parties in their respective positions. That latter has probably occurred here, where the mother of the claimant and her litigation friend, whom I shall call "mum" (because I fear that use of initials may lead to the identification of the child claimant) has been determinedly devoted to caring for her child to the point of selfless self-sacrifice in terms of marriage, her health (she suffers chronic fatigue syndrome, back pain, and exhaustion amongst other problems), her leisure time and her daily routine (in the course of which she spends many hours beyond those she normally would in catering for her children's special needs). She has amassed a wealth of information and experience in identifying and dealing with her daughters' needs, and I suspect rather resents what she sees as interference by social health care professionals where they appear to see things differently from her.

On the other hand, those professionals may see her determined desire to achieve what she considers best for her child as her being unco-operative with the approaches which from their different perspective they think it right to take.

In such circumstances, it is important in an application for judicial review to focus on precisely what is challenged, and on the precise grounds of challenge. Miss Richards, for the defendant local authority, Leeds, in her conspicuously well-presented submissions complains here that matters have evolved to the extent that it was not easy for Leeds to respond to this application - the basis for the application was unclear.

The claim when originally made on 23rd February 2010 was for "failure to provide a treatment room for the claimant in her home." The date of the “decision” was said to be “ongoing”. Plainly, there is no duty as such in statute or statutory instrument to provide a treatment room for a child with cystic fibrosis in her home. This must therefore either be a complaint of a decision not to provide, or to a failure to take such a decision, in the light of more general duties, for it cannot be that it is a failure to perform a duty set out in those express terms.

In section 7 of the N 461, this is confirmed. The claimant there made an application for an interim order, seeking that the defendant make a decision as to whether it proposed to meet the claimant's needs for a treatment room in her current family home, and asking for an order that it provide a realistic plan of action setting out the timetable for providing such a treatment room within a further 14 days.

It was not alleged before me that the facts were such that the local authority should be compelled to provide a treatment room on the basis that that was the only reasonable decision to which it could come.

Although in extended grounds, drafted by Mr Wise QC, who appears before me together with Mr Broach, for the claimant, she sought by way of remedy (see paragraph 44 and the second head of relief numbered (iii)) an order requiring the defendant to meet the claimant's needs for “provision to treat her condition” this is problematic given the evolving circumstances - but it also assumes a united view of those needs, and what is truly needed as opposed to desirable.

The background history against which I make those introductory remarks is this. The claimant, L, was born on 9th September 1996. She has an older sister, H. who was born on 20th August 1995. Both suffer from cystic fibrosis. Their mother is the litigation friend. She has a third child, an infant, recently born to another partner. In 1996 because of the obvious problems that L had she was referred to the Leeds Cystic Fibrosis Multi Disciplinary Team based at St James's University Hospital in Leeds. All new such patients are referred to a social worker. Leeds was the relevant local authority. The family here was struggling to cope. Leeds provided a considerable amount of home care support, initially 10 hours a week, increasing to between 12 to 17 hours plus eight or more to cover weekends. By May 2002 Leeds was funding help for five days per week, and the children's aunt was paid for providing occasional respite care.

On 28th February 2002 an occupational therapist made an assessment of the claimant’s needs. At that time the claimant was 5 and H was 6. They shared a bedroom. There was enough room, thought the occupational therapist, within which the necessary treatment could take place. Cystic fibrosis involves two particular consequences which are of significance to this claim. The first is that it seriously compromises respiratory function. Such is the production of mucus in the chest that physiotherapy is required to shift it. Secondly, those suffering from cystic fibrosis in the way in which L and H did, are unable to process foods in the same way as those who do not so suffer. They require pancreatic enzyme replacement therapy and a special diet very heavy in fats and oils. Both physiotherapy, equipment for it and food storage may need space.

On 3rd May 2002 a recommendation was made that outbuildings at the council house which the family occupied should be upgraded to provide for space for a washer dryer and for more kitchen storage. It was thought that the space in the bedrooms was sufficient to provide for the necessary physiotherapy.

On 8th April 2003 Dr Brownlee, one of the experts who had the care of L and H at Leeds, wrote a letter emphasising that it was important to have adequate room to deliver the necessary treatment safely. It is apparent he had in mind physiotherapy treatment.

In January 2004 the family home was refurbished as part of a regeneration scheme. The family was placed in temporary accommodation but refused to return until the outbuilding was converted to a treatment room. That did not happen. It had of course been upgraded, as I have described.

On 3rd November 2004 there was a further assessment by an occupational therapist. The children appeared to be in worse health than on the previous occasion. The occupational therapist reported that there was insufficient space within the property to meet their ongoing health care needs. She suggested that a separate treatment room should be provided.

On 15th February 2005 a larger council property was offered to mum. This would have been large enough, it appears, to have met the needs for space to provide for physiotherapy and the accommodation of the additional equipment needed to deal with this rare disease. It was a council house close to the house which mum and the children occupied. It therefore would have preserved the social links with which living where she did provided her, and the degree of support that she derived from that. Mum refused to move.

On 2nd December 2005 the solicitors acting for the claimant obtained a report from a Professor Taylor. Although he describes himself on the face of the report as a Professor of paediatric gastroenterology, and an honorary consultant paediatrician, and it might therefore be thought that he had no particular expertise in cystic fibrosis he was in fact the director of the cystic fibrosis unit at the University of Sheffield, School of Medicine of Biomedical Sciences. He advised that in his view the existing home was too small to provide appropriate and necessary treatment, and that a sizable room was required to accommodate a physiotherapy bed, with appropriate access to it, and to install all necessary medical equipment.

In May 2006 solicitors for the claimant asked that a treatment room be provided. Leeds refused, but agreed that there should be an update to the Disabled Children Integrated Needs Assessment in respect of the claimant and H which under statute they would perform. Also in that month, and following this refusal, mum complained formally to the Local Authority Complaints Scheme. That was the scheme established under the Local Authority Social Services Complaints (England) Regulations 2006 (SI 1681 of 2006). The complaint extended to 165 pages. Leeds, under standard arrangements, referred it to a consultancy, RR Consultancy, who agreed with mum that in order to reduce the length and complexity of the complaint to manageable levels the consultancy would produce a summary statement for her comment and approval which would then form the basis of terms of reference of the investigation of the complaint. Despite further attempts by the consultancy to secure the agreement of mum to the summary that was then produced, this was not forthcoming.

Mum simply did not progress the complaint which remains in effect outstanding but not proceeded with.

In July 2006 mum and Leeds agreed that an independent social worker should be instructed to consider the question of space for treatment and the provision, if necessary, of a treatment room. That may be a reflection of a comment Mr Fowler, the social worker concerned, was later to make to Leeds in a letter of 30th June 2009:

For reasons principally of his ill-health his assessment was delayed in the report until March 2009, a period of time which must inevitably be regretted on all sides.

In late July or early August 2006 Leeds offered fresh accommodation, again local council house accommodation, which afforded greater space to the family. This particular property may have been in a state of some decorative disrepair and was rejected. However, as it happens, having been refurbished, the same property was offered again to mum on 3rd September 2007. It was rejected.

In October 2006 there was a breakdown in the relationships between mum and the cystic fibrosis unit at St James's Hospital. In consequence the unit transferred care of L and H to the Bradford Royal Infirmary. There the care remained from October 2006 until October 2009 when there was a breakdown in the relationship between mum and the Bradford Royal Infirmary, centring upon the view of the doctors there that L required admission to hospital to receive in-patient intravenous antibiotic therapy in conflict with mum’s view that the antibiotics which were proposed were not those she thought appropriate and her reluctance that this should happen. Treatment thereafter, from the beginning of January 2010 till now has gone back to the unit at St James's Hospital in Leeds.

Given the factors I have mentioned in my opening remarks it might be thought that the events of greatest relevance to this claim are those which have happened most recently. As I have noted, in March 2009 Mr Fowler reported. He said that a treatment facility and extra space would alleviate the current difficulties and in the letter of which I have made mention for other reasons he recommended that an extension be provided to the family home for a treatment room and to provide further storage. In September 2009, on the back of that, a letter before action was written.

From the history, thus far, these reasons for wanting a treatment room emerge. The first is a need for more space for treatment. This was identified by Julie Jennings, the occupational therapist, in 2004. Secondly, in Professor Taylor's report of 2005 (see in particular paragraphs 4.2 and 5.2) a need for space for a treatment bed with access to both sides was advocated(the bed being of the size which, if visualisation be important, is about a size of an ordinary domestic bath), together with space for two large fridges and shelving for equipment. It should be noted that at the time of his report in 2005, L had seriously compromised breathing. A measure of lung function which is adopted in cystic fibrosis cases is the amount of air which can be forcibly expired during the first one second of active expiration, a measure known as FEV1 (forced expiratory volume in one second). Her FEV1 was 28% of that predicted for someone of her age and height. Her weight was low, a consequence of the inability to process food as others can, as a result of the disease, so that she was only in the second percentile in terms of weight. There was thought of her possibly needing a gastrostomy, that is a percutaneous feeding tube. At that time mum considered that she needed oxygen not only at night but also whilst at school, although Professor Taylor said there was no evidence of that. Professor Taylor also observed, though without any detailed analysis of the reasons for this conclusion, that it would be damaging to the family as a whole if they were faced with a further move. The reasons for this appear to be that he thought this would place pressure and stress on mum.

Mr Fowler had identified a similar need for space for treatment and for storage, but he recorded, in dealing with the space needed for treatment, the view expressed to him by the physiotherapist at the time that it was not necessary to have a treatment room for physiotherapy because of the declining need for that physiotherapy in view of the children's then condition, and the fact that they no longer regularly had chest percussion and drainage performed by their mother on them, as they lay upon the bed, but had begun to use what is known as an acapella device. He also noted the determination of mum not to move. The grounds she gave him were the cost involved, that it was too stressful to contemplate and that she was physically unable to do it.

A further and similar view was expressed on 1st March 2010 by Dr Conway, the Director of CF Services at St James's regional unit. He wrote to say that he supported the request for a treatment room. He described what cystic fibrosis was, and what daily therapy included: twice daily chest physiotherapy sessions, each taking approximately 20 minutes and requiring the use of special beds in order to perform gravity assisted drainage of excessive and infected respiratory secretions. He mentioned the need for equipment to deliver aerosolised antibiotics and other medications on a daily basis, giving rise to a need for approximately two hours of treatment per day, though this would be more during acute exacerbations. The reasons for his supporting the need for a treatment room are not specified in this letter. The information he gives about cystic fibrosis will apply to anyone suffering from the disease and was not specifically apparently tailored to L and H. Thus, to understand what he had in mind as justifying a treatment room, for these particular children, involves an element of speculation. It may well be related to space for a treatment table and equipment or, by its reference to there being a significant caring burden and responsibility, be a suggestion that mum, exhausted by the burdens of care, felt so strongly that this solution would be desirable that it ought to be adopted partly for that reason too. He did however say in the last paragraph of his letter that if further information were required he was willing to furnish it.

So much for the history prior to and in the case of Dr Conway's letter shortly after the issue of proceedings.

The legal duty against which the failure to provide atreatment room fell to be assessed, as the claim was first put forward and as it has been pursued before me, is that which arises under section 2 of the Chronically Sick and Disabled Persons Act 1970, coupled with section 28A of that Act.

Section 28A merely notes that this Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989, as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies. Here L is such a child. Therefore the duty exists. It exists also towards H, though the claim is not brought in her name.

It needs to be observed that this duty leaves the decision to the local authority. It is for the local authority and no one else to be satisfied. Secondly, what they have to be satisfied of is that which is necessary - which plainly means necessary as opposed to merely desirable. It is to meet needs. Plainly the relevant needs are those which the local authority reasonably perceive them to be.

By the time that the claim was issued Leeds had not made a current decision about the provision of a treatment room or, for that matter, one that secured the provision of additional space for the family. No one would however suggest that the earlier decisions on three occasions to offer alternative properties which would have afforded more space should be regarded as a discharge of the duty, which plainly continues. In particular, in 2007, when the last of those offers was made, the children were respectively aged 10 and 11. It may be a very different situation, when they are aged (as they are now) 14 and 15. Accordingly it is not difficult to understand why the claimant should have sought that the local authority make a fresh decision, nor difficult to understand, in the light of the chronology which I have set out, why it might have been thought that that decision would be a positive one favouring the provision of a treatment room.

However, following the falling out which mum had with the unit in Bradford the local authority, for reasons which have not been under challenge before me, decided that it should perform a core assessment of the children's position. It did so over the later part of 2009 (just after that falling out occurred) and the earlier part of 2010. Two social workers performed the assessment. One was a specifically allocated cystic fibrosis specialist social worker who was in fact based at Leeds, and working as part of the Regional Paediatric Specialist Team in the Medical Social Work Department of St James's University Hospital – therefore very closely allied with the team which had treated the Claimant, and was to resume treatment in January 2010.

The assessment recorded what the social workers found. They advised (see page 31 of the assessment) as to the need for a treatment room in these terms:

The letter of Dr Conway is that to which I have already referred. I am not clear what were the “several reasons” which the social workers identified since, as I have observed, none seems obviously to be stated and they are ascertainable only by inference.

The assessment was reviewed by Mrs Julie Bringloe as indeed the assessment had predicted. She is the Service Delivery Manager for the Child Health and Disability Teams of Leeds. She sought further input from the Cystic Fibrosis Multi Disciplinary Team at St James's University Hospital, asking a number of detailed questions which were answered in a letter of 23rd March 2010 as to the treatment needs and space requirements generally of the girls, after which she concluded that a treatment room was not needed. What she wrote in a 4-page letter of 21st April 2010 demonstrated that she had taken into account Mr Fowler's reports, Dr Conway's letter, the report from the multi disciplinary team of 23rd March, and the core assessment and witness statements of L and her sister H, which had been prepared for the litigation.

She concluded that so far as storage was concerned, there were already more fridges than necessary in the house and considered that two average size fridges or one large American-style fridge should be enough to meet the family's additional needs. When the children might need a course of intravenous antibiotics which was administrable at home she understood that a course of home IV treatment would fill a small medical fridge, and was advised that when that was required such a fridge could be delivered by the medical supply company and removed by it after completion of the treatment. There was no other great need for storage apart from possibly that needed for a machine known as an oxygen concentrator, which was about the size of a vacuum cleaner and could be used to supply oxygen in a greater than atmospheric concentration to L at night. Her view was that because it was used by L at night, it must necessarily remain in her bedroom (rather than a separate room) and noted, anyway, that the medical view was that routine supplementation of oxygen was not required.

She addressed the question of room for treatment by way of physiotherapy and said this:

She addressed the issue of separation physically of treatment from the rest of the house. She said this:

She concluded that while both H and L were children in need, as legally defined, that taking into account what she had said she did not believe their needs were such that they required a treatment room, or were such as require the council to make provision for a treatment room in the family home. Storage could be addressed by disposal of unnecessary equipment and the removal of surplus items, though the council could assist with minor changes. The girls did not require a physiotherapy table to be erected for daily treatment, though they might do so on infrequent occasions (she no doubt had in mind exacerbations. She thought it was not unreasonable for the treatment table to be set up and lowered on those occasions. She did not take the view that a treatment room was needed psychologically to isolate the treatment of CF from the life of the family. Finally:

It is at this point, when this letter arrived, after the issue of proceedings, that the procedural issues with which I am invited to grapple begin.

The defendant relies upon this decision of 21st April. The Claimant had asked for a decision: she now had it. On 7th May the hearing which had been otherwise to take place (into the grounds as originally advanced) was adjourned. On 10th May it was ordered by consent that the claimant should file evidence and any amended grounds by 28th May. The defendant was to reply 14 days later and the claimant provide a skeleton argument seven days after that.

This timetable was not adhered to. There were no amended grounds. When the claimant's further evidence came, in the form of two statements from mum, they were dated 13th October and 4th November. This case was heard last week, beginning on 4th November. A further report was produced by Professor Taylor and relied on, dated 2nd September but not served until 23rd September. This necessarily had the effect that any evidence produced by the defendant for the hearing before me was to some extent made flying blind without knowing precisely how the claimant would in the light of the decision of 21st April pursue or formulate her claim.

No coherent attack on the decision of 21st April was mounted, to the effect that it was an improper decision on the basis of material existing at the time and available to the decision maker. It is now said that the decision maker did not consider the risks of cross infection which might arise as a result of one child with cystic fibrosis infecting another with that condition by reason of the active expiration of pathogens during physiotherapy. It is now said that the decision maker misunderstood the need for the oxygen concentrator to be in the bedroom of L (although I note that in the first report he had provided, albeit in 2005, Professor Taylor had said that the oxygen concentrator should ideally be housed adjacent to L's bedroom, so it might have been thought that his view at least then was that there needed to be proximity between the two).

Before me, the claimant has relied very heavily upon Professor Taylor's further report. In the light of this, Miss Richards, to whose submissions I have already paid tribute, began by drawing the attention of the court to the decision of the R (On the application of P) v Essex County Council and Basildon DC [2004] EWHC 2027 (Admin) a decision of Munby J (as he was). Under the heading "Some general principles" he set out a number of observations which it is worth repeating, albeit that they are of some length. At paragraph 30:

I agree entirely and the remarks, as will be obvious, are apposite to this present case.

Miss Richards drew my attention to letters which Leeds had written on 24th September, for instance, asking the claimant to say whether the council's decision in April 2010 was asserted to be unlawful, and if so, inviting the claimant to provide the grounds of challenge without delay and in any event within seven days. The response which came on 5th October to a suggestion by Leeds that the decision not to provide a treatment room was now out of time to be challenged, was that the claimant could not accept that assertion:

In the skeleton argument for the purposes of this hearing, dated 29th October, the claimant gave five reasons for saying that Leeds had acted irrationally. For the first time as a formal assertion, it was set out that there was an ongoing need for supplementary oxygen, which should not require the concentrator to be next to the bedroom. There was a need for a clean area in which to administer intravenous antibiotics. There should be a permanent bed for physiotherapy for percussion and drainage. There was a risk of cross infection which required such as a treatment room to avoid it. Finally, the social work concerns which concluded that the separation of the treatment from the family overrode medical advice. The claimant’s summary (see paragraph 43 of the skeleton argument) was that the council (a) misunderstands the claimant's need for supplementary oxygen and the way in which this could be met with equipment kept away from her bedroom; (b) fails to address Professor Taylor's recommendation that intravenous antibiotics should be administered in a clinically appropriate environment; (c) fails to recognise that Professor Taylor has clearly recommended that girls require conventional chest physiotherapy and a permanent physiotherapy bed is needed for this to happen; (d) fails to address Professor Taylor's clear recommendation that a treatment room is the best way to avoid cross infection; and (e) prioritises the purported social work concerns ahead of the clear medical evidence that a treatment room is necessary for the physical health and well-being of the claimant and her sister.

Miss Richards told me that the council would have wished to respond in good time to allegations made of this nature as late as they were, with the advantage of preparation. Although she maintained that Leeds were prejudiced, she did not seek an adjournment because of the need, in the circumstances, for a court's resolution sooner rather than later.

In my view, Leeds were prejudiced by the procedural failings of the claimant. But, it seems to me, that where prejudice can be rectified by an appropriate order of the court, so that the matters in issue can be determined, that is the course the court should take.

Therefore, I concluded that the failings could be rectified by, first, requiring the claimant to be more specific as to the challenges made, stating what was challenged precisely, on what basis for what reasons; and second, allowing Leeds to treat matters which Miss Richards told me on instructions though otherwise not in formal written evidence as being evidence in the case. Mr Wise QC did not object to that latter though initially asserting there was no need to amend the claim, something which I cannot accept.

In conclusion: what precisely is the court dealing with? Miss Richards says that the decision of 21st April is not itself attacked on public law grounds nor if attacked, attacked within time. It therefore must be accepted and is the starting point for the discussion which must follow.

Mr Wise QC says that that is not the case. The complaint is essentially the same complaint made in an evolving situation. He can still complain about that decision, that is the decision not to provide a treatment room, albeit he does so now with the benefit of hindsight from Professor Taylor's most recent report.

This is a rolled-up hearing. I would give permission only for a clearly articulated complaint. The complaint made here, as I understand it, is that the local authority maintained its view that there should be no treatment room, in the light of Professor Taylor's second report and that it was irrational to do so. In identifying that as the matter of complaint, I do not however entirely accept Miss Richards' approach that I should accept without question the correctness of the decision of 21st April as a starting point. History and context are important. If, for instance, Professor Taylor in his report showed that the decision of 21st April, though reached upon a basis which appeared correct at the time, was in fact reached upon a basis which was materially false, it would seem to me that that was relevant to any question whether continuing reliance upon it was rational. But, short of that, the history, it seems to me, is relevant to whether the local authority has overall taken a decision which falls within the bounds of Wednesbury reasonableness. Just as in an earlier case, MS v Oldham [2010] EWHC 802 (Admin), in which Mr Wise QC appeared in front of me, he reminds me that the court took the view that the whole picture ought holistically to be viewed when considering a local authority's discharge of its duties towards a claimant, so, here, in my view, an holistic approach needs to be taken. Matters arising before 24th April may not be of the greatest significance because of their age but they are nonetheless part of the context within which the present claim falls to be set.

That is therefore the approach which I adopt to the question which I identify, that the claimant is asking me to deal with, the way in which the claimant puts the case and that which I would give permission for.

There is a second procedural point. This is the standard of review which the court should adopt. In the case of R v (On the application of Daley v Secretary of State for the Home Department [2001] 2 AC 532, 2001 UKHL 36, Lord Steyn at paragraphs 24 to 28, in a speech with which the majority of their Lordships concurred, made observations about the intensity of review to be adopted in those cases in which it might be said that fundamental rights fell to be considered. He drew attention (see paragraph 27) to the fact that the intensity of review required of the court was somewhat greater where proportionality was a relevant approach, and suggested that the doctrine of proportionality might require the reviewing court to assess the balance which the decision maker had struck and not merely whether it was within the range of rational or reasonable decisions. Secondly, the proportionality test might go further than traditional grounds of review, in as much as it might require attention to be directed to the relative weight of the relevant considerations. Third, even the heightened scrutiny test developed in R v MOD Ex parte Smith [1996] QB 517 and 554, was not necessarily appropriate to protection of human rights. He concluded at paragraph 28 that the differences in approach between the traditional grounds of review and the proportionality approach, may therefore sometimes yield different results:

On the same point, Mr Wise QC took me to the decision of Munby J (as he was) in the case of ABX and Y, to which he made reference in a passage earlier cited [2003] EWHC 167 (Admin), in which he talked at paragraph 93 about the enhanced degree of protection which might be called for when the human dignity at stake was that of someone so disabled to be particularly dependent on the help of others for even the most simplest and basic tasks of day-to-day living.

The response of Miss Richards was that particular case involved two disabled women who were critically dependent on others for every aspect of their life. Article 8 was more obviously to be imputed in such a case because it was more obviously interfered with by the decisions which were under challenge. She accepted however (see the case of Anufrijeva v London Borough of Southwark [2003] EWCA Civ 1406 at paragraphs 30 to 43), that Article 8 may be not merely be engaged by a positive interference by the State in private and family life but also that the State owed a positive duty to promote it, or might do so.

I accept that the intensity of review where human rights are concerned will increase. Context is indeed everything. Thus, the extent to which Article 8 may be said to be applicable is to be considered. It might be said that any decision as to care and social support for those in desperate need is bound to affect the dignity and integrity of personality of the person concerned and their ability to function as a social being in today's society.

It is however plain that statements at the highest level as to the approach to be adopted generally in community care cases have since 1998, as before, adopted what might be regarded as a conventional judicial review approach. Examples are provided by the speech of Lord Clyde in Reid v Secretary of State Scotland [1999] 2 AC 52 (see particularly 541F to 542A) and the case of Ireneschild [2007] EWCA Civ 234 (paragraph 44), approving and adopting as being as relevant now, after the enactment of the Human Rights Act as before, the observations made by Lord Brightman in Pulhofer v Hillingdon [1986] AC 484. I accept (a) that it is not for the court to make its own decision as to what community care is appropriate. That is not the court's function; (b) the court will review the actual decision made where it affects fundamental rights with a scrutiny appropriate to the context; (c) that the intensity of review will depend on the profoundness of the impact of the decision, but note that that profoundness has to be judged objectively and not necessarily by reference to the way in which a claimant or defendant might, in the circumstances of a particular case, perceive it. Here I regard the decision as having an impact upon the family life of the claimant, her sister and mum. But part of the context which cannot be ignored is that the decision is expressly that of the local authority which is to be made in the light of the needs of the child and in the child's best interests, and that they must be taken to be as the local authority sees them, provided such a view is not irrational and provided that its view is scrutinised with some care. (d) There is no decision here to deprive the claimant or mum of a privilege or indeed a necessity which they already possess. The decision is rather one not to provide a very specific form of remedy for that which the claimant and mum say are her needs. Everything is dependent on context. In this context, I have applied standard principles of review with an intensity appropriate to the context, as I see it. To the extent that it might need a more intense scrutiny, I have re-examined the facts and conclusions which ultimately I shall express and I have come to the conclusion, in the event, that whichever standard of review I were to adopt, I would come to the same conclusion.

There is a final procedural point before I deal with the substance of the attack upon the continuing decision of the local authority to maintain its view of 21st April despite Professor Taylor's report of September. That is whether or not I should refuse permission because the claimant has an alternative remedy. It is argued by Miss Richards in her skeleton that Cowl v Plymouth City Council [2001] EWCA Civ 1935 was a case in which the Court of Appeal emphasised the paramount importance of avoiding litigation wherever possible and that the courts should not permit a claim for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process. That is at least unless there was good reason to do so. In R v (On the application of F & Ors) v Wirral metropolitan Borough Council [2009] EWHC 1626 (Admin) a decision of McCombe J he noted at paragraph 84:

The claimant says that there was no such exploration of the complaints procedure as might have been appropriate if this had been a case which was not in effect destined for court because of the way in which the issues had developed.

I accept the general principle that judicial review and therefore relief should be denied where there is an alternative remedy. Judicial review is a remedy of last resort. The principle operates both at the stage of permission and at the stage in which a court, if it were otherwise minded to accede to a claim, considers whether it should grant or decline relief. In this particular case, upon the very particular facts, and having regard to two considerations I would not, for myself, refuse permission on this particular basis. The first is that it is plain that the parties have both invested considerable time and effort in putting the matters before the court in a process in which the claimant's mum has felt able to participate in a way which she has been unable, it seems, to participate in the complaints procedure. Secondly, it is plain that there has been some emotional investment in the central argument placed before me. The allegations made are likely, it seems to me, sooner or later to surface in court: if they did not do so now, they probably would later.

My refusal in this particular case, on its very particular circumstances, to permit this argument by Miss Richards to succeed as a bar to permission, should not however be regarded as any precedent for cases which may follow. It is necessarily particular to its facts. Had I been invited to make a decision in this case a year or so ago, on the facts then apparent, I think the result might have been very different.

I turn then to look at the substance of the challenge. Mr Wise QC accepts that it is for Leeds to make up its mind as to whether to provide a treatment room or not. His essential argument is that all the medical evidence obtained appears to point one way, and that there is no good reason to depart from it. He places heavy reliance on the most recent material deriving from Professor Taylor's second report and objects that Miss Brimlow's third witness statement is irrational in its rejection of that which Professor Taylor says.

It is necessary, in dealing with this argument, to remind myself of why Leeds concluded as it did on 21st April. I set out the reasons above. What I have not however quoted is paragraph 74 of Miss Bringloe's statement. It reads:

The argument that that is irrational depends upon the value placed upon Professor Taylor's second report, nominally dated 21st July 2010.

The claimant argues that the report is compelling. It is a matter of some regret perhaps, to say that the council were fully entitled, in my view, to regard this report as being of very little help at all, if any. There are significant weaknesses with it. The first is that the report was one made without the author having seen the children for the purposes of making the report. Professor Taylor had not seen the children since they were aged 9 and 8 respectively. They are now 15 and 14. I should have thought it obvious, particularly to a paediatrician that children are liable to change significantly between the ages of 9 and the age of 14.

The second observation is that Professor Taylor had not seen the medical records of the children. He made reference to one letter which came from St James's Hospital of 26th February 2010, under paragraph 1 headed "provision of adequate storage" and suggested on the basis of that that H’s FEV1 was 55% and L’s only 37% of expected. This led him to make the comment:

If deterioration is measured by FEV1, the opposite is the case, or so it would appear from the available material. If it is the case that L's weight should have become worse, again that is not the case. She has put on a significant amount of weight and a gastrostomy is no longer actively being considered. The reality remains, as Mr Wise pointed out, that ultimately the condition is terminal. But it is difficult to understand the comment about the condition having deteriorated, particularly in the light of a relatively uneventful period after Professor Taylor first reported and whilst the girls were under treatment at Bradford.

Perhaps because there had been no actual observation of L and H as they presently are the Professor’s report made estimates and assumptions at various points. Thus, he estimated the need for courses of intravenous antibiotics throughout the year. He assumed that both girls had central venous access devices. He would expect mum to be administering intravenous antibiotics on an almost monthly basis. There are other examples. As to central venous access devices, Miss Richards complained that any one looking even casually at the medical records would have become aware fairly quickly that H does not have such a device any longer. The impression - which of course may be entirely false, and I should emphasise that I have not heard from Professor Taylor and am not therefore in a position myself to evaluate his evidence, even if it were relevant to do so - given on paper, which is all that the local authority has to go on, was that he is someone who had not familiarised himself with the papers and medical records before writing a repeat report, 5 years after his previous one, in relation to girls whose physical age was now very different. Thus he thought (see paragraph 5) that both children required regular airway clearance which was currently delivered by the mother in the form of percussion and drainage and later in the same paragraph referred to the continued use by the mother of conventional chest physiotherapy. In fact one of the mother's complaints is that she does not currently perform percussion and drainage. She says, through Mr Wise, that this is because there is insufficient space to erect a treatment table to do so, but certainly the material produced by the core assessment and evident in that which the Multi Disciplinary Team had to say to Leeds was that the girls generally used an acapella device. That does not involve percussion drainage.

The Professor gave a view about the positioning of the oxygen unit. He said it was best accommodated in a room separate from that where the children or adults sleep. He may be right. But there is something of a contrast which might need explanation between that view and the view in his earlier report to which I have already referred.

The Multi Disciplinary Cystic Fibrosis Team had responded to the Council (see paragraph 10) of their letter of 23rd March 2010 in these terms:

It seems to me that Leeds were fully entitled to rely upon that view of the MDT, which contrasts with the one expressed by Professor Taylor.

I consider that Miss Richards is right to say that Professor Taylor's view about the risk of infection was based largely upon his view that the girls were using the physio table as a matter of regular routine. It also appears that he had in mind the requirement, as he saw it, in the near future for L to have a lung transplant. That, of course, was a view dependent upon his view as to her lung function as to which I have already accepted the comments made by Miss Richards.

In short, the local authority, if they gave the report anxious consideration might, notwithstanding the general eminence of Professor Taylor have been entitled entirely to reject what he was saying because it did not appear to be said with the care that one might have hoped for. Leeds did not find it compelling. It was entitled not to do so.

In his argument Mr Wise drew attention to the five matters to which I have already referred. He mentioned that the point made by the defendant about the oxygen concentrator was irrational, because the defendant appeared to be assuming that Professor Taylor had ignored the fact that oxygen needed to be provided to the claimant in her bedroom. He went on to argue that if the concentrator could be sited in a treatment room, the oxygen could be brought to the claimant's bedroom, through tubing. That would avoid disturbance that might be caused at night from the noisy machinery.

I have some difficulty in seeing that the conclusion as to this alone, if it were wrong, would make the difference between the provision of a treatment room, thinking it necessary or not. But the local authority were entitled to take into account that the multi disciplinary team did not consider that regular oxygen was necessary for L's treatment (although plainly mum does) and I do not see in their conclusion such irrationality as to vitiate the decision to which they came.

The second point relates to the administration of intravenous antibiotics. Here, what is said to be important by Professor Taylor is that the administration of such antibiotics should be carried in a clinically appropriate environment. He specifies a clean area away from normal day-to-day activity.

I accept Miss Richards' submission that there are throughout the northeast a number of families in which there is more than one child suffering from cystic fibrosis. There are apparently no less than 14 such families in the area of Leeds alone. I am told that in none of those cases has a separate treatment room been provided. All are likely, depending on their particular individual needs, to require an intravenous antibiotics from time to time. Modern practice is to administer such antibiotics at home rather than as an in-patient in hospital, not least because it tends to avoid the dislocation of home and school life which otherwise might ensue. But it is only administered where the medical team consider it safe or appropriate to do so. Otherwise antibiotics are administered in hospital: it was a request for admission for such administration that caused the falling out between mum and Bradford in October 2009. Thus Leeds would be entitled to think that it was medically safe for such treatment to be administered if the clinicians in charge of L’s case were prepared to permit it taking place at home, just as clinicians must generally regard it as safe in each of the other cases where there are two or more children in a family who suffer from the condition.

I have not therefore seen that the local authority were acting irrationally in concluding that Professor Taylor's remarks in this respect should make no difference to the overall conclusion to which Leeds have come.

It is physiotherapy that gives rise to the greatest use of space because of the need to move around and deal with a child on a physiotherapy table. Mr Wise QC argues that the use of an acapella device and the suggestion by a physiotherapist and a consultant within the St James's team, to the effect that such devices are more age appropriate as children grow up, particularly avoiding the percussion of the chest of young girls as they grow into their teens, does not provide a rational reason for rejecting the evidence of Professor Taylor that L has a medical need for a treatment room to facilitate the provision of the most effective physiotherapy.

It is apparent that his view was reached in the belief that this was the form of physiotherapy regularly employed by mum when, as I have mentioned, that was simply wrong.

In this court, I was told that mum would use physiotherapy if only she had the space to put up a table permanently because that was her preferred method. I have some difficulty with accepting that which is not stated in any of the three statements which mum has made, the latest being on the morning of the day the hearing began, though it is fair to say that she noted (see paragraph 6 of her third statement) that the ability of both her children to remain as healthy as possible was undoubtedly compromised though not having benefit from chest physiotherapy or postural drainage. This latter can only be provided through the use of a Chesham tilting frame, whether that is with an acapella device or with conventional chest physiotherapy. The reason for my hesitation in accepting this evidence, quire apart from its lateness, it that I would be surprised if in fact this mum did not go to the greatest of lengths to ensure that her daughters had the treatment she thought was appropriate: if that was chest physiotherapy, then I would have thought she would have provided it despite the restrictions on space. But it is not my decision. It is for the council to assess. The council social workers saw the house. They saw the space. They came to the conclusion that they did. That conclusion is different from the conclusion to which Mr Fowler came. It is however a conclusion which, as it seems to me, was within bounds of rationality, given the medical evidence that there are occasions by way of exacerbation when the children do need such a table, but that in general these children did not. It may be that in the future those needs are so great that the situation changes again. But in terms of whether the local authority were entitled or not to view Professor Taylor's report as requiring them to change the view to which they had come on 21st April, taken in context, it seems to me that the local authority acted entirely within the bounds of rationality, whatever standard of review is applied.

Next Mr. Wise argued the risk of cross infection. Here Professor Taylor described a treatment room as a best means of avoiding transmission of an infection from one girl to another. The answer, as it seems to me to this, again coming through submissions from Miss Richards was to effect that the risk could not be such that the medical team in Leeds would prevent the treatment being applied as it is and more particularly that this view of Professor Taylor was predicated upon his understanding and that there was actual active chest percussion drainage performed every day, one girl in front of the other.

Mr. Wise’s final argument is that the local authority were irrational to look at social work concerns overriding medical advice. Here, (see paragraph 42 of the skeleton argument) it was submitted that the conclusion flew in the face of both the evidence of Professor Taylor and the reality of the claimant's life with her family, and that seeking to rebut Professor Taylor's evidence through reliance on expert social work views no matter how deeply held was inherently irrational. The medical needs of the children must prevail over any purported social work concerns.

This, in my view does not fully address the reasoning of the local authority in this respect. The report of Professor Taylor does not, as I read it, and as therefore it seems to me the local authority were entitled to read it, discuss the psychological desirability or otherwise of the girls being able to shut off treatment of their CF from the rest of their lives. The view here of the social workers is at odds with the view which mum expresses. It is not for me to make any independent judgment about which view is to be preferred, save that it seems to me the view of the local authority is one to which it was entitled to come. The social workers concerned have experience, one in particular, of dealing with children suffering from cystic fibrosis. This is one of those cases in which one response or another may equally be a rational response. I cannot say that this local authority is acting irrationally by coming to the view it did.

Accordingly, taken individually there is, as it seems to me, no proper force on the basis of Professor Taylor's report or generally whether taken on its own or in the context of that which had gone before for contending that the local authority were acting irrationally. I have also considered whether taken together, the force of the points made is such that that can be said or it can be asserted that the decision to which the local authority came was one which no reasonable local authority could in the circumstances come. On that basis, too, the local authority was entitled to come to the view it did.

Accordingly, it seems to me that it is somewhat academic as to whether having heard the full argument to which I have over the course of two days I should grant permission and then reject the claim, or whether I should simply reject the claim. The decision is the same in either respect. I have indicated, however, that I would not have refused permission for this claim on the grounds of time, or the grounds of alternative remedy or on the grounds that the defendant was prejudiced irremediably in its answering of the case because of the lack of specificity in the claimant's pleadings. I have identified that which is in issue. I have dealt with the case on the merits and I have concluded that the local authority was entitled to come to the conclusion that it did, whatever other decision might also have been a rational decision: my approach should thus be regarded as having given permission, but rejected the claim.

Finally, and repeating to some extent the opening remarks with which I began, no one who has read the papers could fail to be moved by the very great sacrifices mum has made, nor could they fail to be moved by the very great plight in which the dreadful disease has placed both girls. This decision will undoubtedly come as a disappointment to mum, and them. It may offer some, if scant consolation, that I make some final observations. Their condition and their position will inevitably change and develop over time. What I have said in court is the last word on this present challenge but it may not, nor should it be necessarily be regarded as, the last word as to what particular provision is appropriate in whatever circumstances there may yet be in this still evolving situation.