O (A Child), R (on the application of) v London Borough of Hammersmith and Fulham

This is an application for permission to apply for judicial review. The case concerns the accommodation provision to be made for the claimant, O, who is an autistic child with complex needs, and who will be thirteen in a few months time. The basic dispute as it stands at present, and it is a difficult and anxious one, is as follows. Should O be placed immediately at Purbeck View School, Swanage Dorset, with a view to taking up a fifty two week placement there from September 2011? With the greatest of reluctance, his family strongly believes that this is the right outcome. The local authority, on the other hand, contends that its decision is the right one, namely that O should remain at his present school until September 2011 (with support during the periods when he is at home) with a view to then taking up a residential placement at Sybil Elgar School, and commencing his schooling at Queensmill School. Queensmill is an autism specific school close to the family home. It is objected on behalf of the claimant that the residential element of this proposed placement is not presently assured, that much as they love him (which is not the least in doubt in this case) the family can no longer cope with O being at home, and that the daily commute to school inherent in the local authority’s proposal would adversely affect his condition. The local authority contends that its proposal will enable O to maintain closer links to his family, and is preferable to having him away from home for the whole year. The cost of the alternative proposals has also featured to some extent in the evidence, though not as a determining factor.

O’s mother is a solicitor, though caring for her son has prevented her from practising, and his father works in the financial sector, though the recent downturn has adversely affected his employment. O was born on 17 July 1998. On 21 April 2001, he was diagnosed by Dr Gillian Baird, (a Consultant Paediatrician) with childhood autism. Dr Baird and her team have remained engaged in his case to the present time, and support the views of the family. For the next eight years, along with specialist support, O attended an independent nursery and thereafter a small independent primary school. He was taught via an Applied Behaviour Analysis (ABA) programme funded by the defendant, which is the London Borough of Hammersmith and Fulham (LBHF). The details are contained in his mother’s first witness statement of 11 February 2011 (one of three made for the hearing).

By September 2008, O had been diagnosed as having severe autism, and Dr Baird noted that the impact on his family with two other young children was very high because of the constant supervision that he required at home and the fact that he had to be supervised by a competent and strong adult whenever he went out. This is further described in his mother’s witness statement which explains in detail the intense difficulties experienced by the family in coping with what can be aggressive behaviour in a boy who is growing up, and the strains it places on O’s two younger brothers, as well as on his father and mother.

A statement of Special Educational Needs (SEN) made by LBHF on 1 May 2009 named Queensmill School, a maintained special school, from September 2009. This is an autism-specific special school in the borough that is accredited by the National Autistic Society. His parents (with expert support) took the view however that a day placement would not meet O’s needs, and sought a placement at LVS Hassocks, which is a weekly residential autism-specific special school which had been relatively newly set up. His parents placed him there in September 2009 at their own expense. They appealed against the content of the SEN statement under s. 326 Education Act 1996 to the Special Educational Needs and Disability Tribunal (SENDIST), which is now the First-tier Tribunal under the changes introduced in 2010. The hearing took place on 15 and 18 January 2010, and the appeal (which is a merits appeal and not a review) was dismissed on 5 February 2010.

The Tribunal was concerned with O’s educational needs, and was not concerned with accommodation as such. The question it had to determine was whether O required a 24 hour curriculum on educational grounds, in other words in the context of a residential placement, or whether his special educational needs could be met by the specialist provision at Queensmill School. There was a very considerable costs differential involved (decision at paragraph 18). The Tribunal noted the excellence of Queensmill’s service, which is not in any way in dispute on the present application, and concluded as follows:

“We concluded that [O] was typical of the autistic pupils for which Queensmill School provides, and indeed Mrs Ragan [the head teacher] assured us that there were pupils there who had a much more severe level of anxiety than [O] but whose special educational needs the school is able to fully meet. She was wholly supported in this view by Mr Dwyer, who knows [O] and who is the educational psychologist for Queensmill School. We concluded that [O] is not amongst the small number of autistic children who need a 24 hour/waking day curriculum and further that LVS Hassocks offered no especial benefits for [O] which could justify the cost of the placement. It would therefore be unreasonable public expenditure for [O] to have a place at LVS Hassocks. In reaching this decision we took into account the amount of money paid to [O’s father and mother] for 14 hours per week respite care which we considered did not in itself confirm a need for a waking day curriculum.

In deciding that Queensmill School should be named in [O’s] statement we took into account [O’s father and mother’s] stated objections to his peer group at Queensmill, but did not think that their objections to his peer group at Queensmill were sufficiently persuasive to reject placement there. Indeed we noted that the peer group at LVS Hassocks were more able than [O] and this could limit opportunities for him to interact on an equal footing with his peers there. We are confident that [O’s] special educational needs could well be met at Queensmill School.

We appreciate fully the emotional fragility of [O’s] family and this may well have lead to [O’s father and mother’s] decision that [O] required a boarding school environment on transfer to secondary education. However, they placed him at LVS Hassocks from September 2009 without first trying a day specialist school. The LA had made clear to [them] that they would not be paying the fees for LVS Hassocks and would be making a place available for [O] at Queensmill School from September 2009. It is unfortunate that [O’s father and mother’s] decision now means that [O] will have to change schools.”

Subsequent to the Tribunal’s decision, O’s parents chose to continue to fund his 38 week placement at LVS Hassocks, as was their right. In fact, the evidence shows that by June 2010, O’s mother was beginning to have her own doubts about whether LVS Hassocks was right for her son. More important, she describes how the October 2010 half term was a watershed, in the sense that despite the love and care which they have lavished and continue to lavish on O, they “became painfully aware that we could no longer cope”. His anxiety was leading to unpredictable and alarming behaviour causing problems for the whole family, which his mother describes in detail in her evidence.

On 20 November 2010, Dr Peter Hindley, (a child psychiatrist) recommended that the combination of autism and attention deficit hyperactivity disorder (ADHD) which had been diagnosed by then meant that O needed a 52 week residential placement which could provide consistency and predictability, but also provide a 24 hour social curriculum to allow him to develop the most independent living skills possible. Solicitors had been engaged on his behalf by his parents by this time. They instructed Ms Heloise Dove, who is an independent social worker. By a report of 23 November 2010, she stated her opinion that on the basis of a “very clear consensus of professional opinion”, a residential placement was essential. She noted that if this was to be funded by the local authority, O would have to become a “looked after child” under s. 20 Children Act 1989. That is in fact the relevant provision as regards the present application.

She referred to the fact that by this time, O’s funding at LVS Hassocks was covered by the charity FRED. This reflected the adverse financial situation that the family was at that time experiencing. Ms Dove noted that although settled at LVS Hassocks, there were indications that O was “struggling there and not making the progress it is felt he is capable of, his anxiety levels increased by the moves between home and school environments every week”. She refers to the family at that time as being “in crisis”. She also refers to the view expressed by O’s parents that Purbeck View School in Swanage would be appropriate. In her evidence, O’s mother explains that by that time they had looked at a number of options, and settled on Purbeck as the best one. O’s parents remain very strongly of the opinion that a 52 week residential placement at Purbeck School is in their son’s best interests.

On 26 November 2010, the claimant’s solicitors wrote to LBHF to the effect that a 52 week residential placement was necessary, and that had to be taken into account on the forthcoming annual child in need review. This took place on 30 November 2010, and it noted that LVS Hassocks School had indicated they were no longer able to meet O’s educational needs, and that health professionals from Guy’s Hospital had recommended a 52 week educational placement. The school’s annual review said that it is becoming increasingly apparent that O’s progress was severely limited by the weekly transitions between home and school, and any more frequent transitions would be seriously detrimental to his progress and well being.

Meanwhile, by a letter sent in December 2010 and received on 18 January 2011, Purbeck View wrote to O’s parents offering a 38 week placement at a cost of £136,184 per annum, with the option to transfer to a 52 week placement by the end of August 2011 at a cost of £186,356 per annum.

Mr Tim Odell, team manager of the Disabled Children’s Team at LBHF sent details of what the borough could provide by way of significantly increased support over the Christmas holidays. Just before Christmas, he emailed the claimant’s solicitor to the effect that the Core Assessment would be completed in January, and would likely be in line with the assessments provided by Dr Hindley and Ms Dove.

The Core Assessment is dated 25 January 2011. It sets out the position in considerable detail, covering the position as regards schooling, O’s personal needs, his parents’ position in the context of the family, together with the recommendations that I have already referred to the effect that O needed to be placed in a 52 week placement. It notes the views of his current school as to the transition to and from home being a source of anxiety. It notes that it has become recently more evident that the family is not coping even with increased support from the Disabled Children’s Team and increased direct payments, and states that O’s parents had indicated that he needed to be accommodated via s. 20 Children’s Act 1989. It contains a lengthy analysis in which the various different factors are set out, including reference to the Tribunal decision which held that Queensmill was to remain on O’s SEN Statement.

In its conclusion, the assessment noted that the policy of children’s services was to make every attempt for children and young people to remain with their own families if this could be done safely. With this in mind, three options were set out for consideration:

i)

Further discussions be held to ascertain if the parents would agree to a trial of O attending Queensmill School with a high level of support at home, including the use of respite facilities.

ii)

Consideration be given to whether O could be placed in a foster placement, internal or agency, with carers experienced in working with severely autistic children. It notes that Ms Dove’s assessment states that a foster placement would not be agreed by the family. (It is clear that the family would not agree to such a proposal, which has since been ruled out.)

iii)

The local authority to consider a residential placement which would meet his needs for stability, structure, minimal transitions, and include input from experienced carers.

Further discussions were suggested with the parents to get their view of a plan whereby O would live at home with a high level of support and attend Queensmill School (i.e. option 1). It is however a fair reading of the assessment as a whole that at this point the Local Authority’s views were tentative.

Following a request from the claimant’s solicitors, Ms Dove prepared a further report of 30 January 2011 stating that in her view, O’s increased difficulties were in the main caused by constant moves between school and home, and that he needed to be in one consistent environment where both his education and care needs could be met within one structure.

On 31 January 2011, the claimant’s solicitors sent a very lengthy pre-action protocol letter to the Disabled Children’s Team at LBHF. The letter requires the local authority to agree to commence transition plans for O to commence a residential placement at Purbeck View with immediate effect, noting that the school has confirmed that a 38 week placement is available from 1 February 2011, with a view to O then commencing as a 52 week place student when a place becomes available at the end of August 2011. It states that the position had become urgent, and that unless LBHF took that action by 4pm on 7 February 2011, steps would be taken to seek an interim order from the court requiring that this be done until the matter could be heard. The letter makes it plain that only Purbeck View will be acceptable.

On 4 February 2011, Mr Tim Odell, Team Manager, Disabled Children’s Team, replied via O’s parents, expressing surprise (in my view with reason) at the inflexible tone of their solicitors’ letter, noting that when they met with Local Authority on 26 January 2011 the parents themselves had indicated that they were open to placements other than Purbeck View if they met O’s needs. In view of the rejection of the local authority’s offer, LBHF had begun a search for possible placements and hoped to have a list within three weeks. Mr Odell noted the parents’ preference for Purbeck View, but said that the local authority had a duty to make a wider search for the placement that best met O’s needs.

On 7 February 2011, the claimant’s solicitors replied to the effect that alternative placements were required by 9 February 2011 in view of the forthcoming half term, and doubts as to funding at LVS Hassocks beyond that date. The LBHF legal department responded on 9 February 2011 objecting to the parents “flat refusal to engage with the local authority” and asking for a three week delay if it was still intended to issue proceedings.

In the event however, proceedings were issued on 11 February 2011. The claim was one for interim relief, the relief sought being an interim mandatory order requiring LBHF to place O at Purbeck View School until the end of the current academic year (i.e. until a 52 week placement at the school became available as per the offer letter). An order was sought from this Court on the papers that a hearing of the interim relief application be fixed by 16 February 2011.

That same day, Simon J ordered that there be a hearing on 16 February 2011 which would “NOT be the hearing of the application for interim relief. It is intended to provide an opportunity for the parties to consider the immediate needs of the Claimant and his family, and for the Court to make such further directions as may be necessary”.

When the matter came before Ouseley J on 16 February 2011, he expressed his approval of this approach. At [2011] EWHC 369 (Admin) paragraph 4, he said that applications for an order for a specific placement by way of interim relief made at short notice (or even as sometimes happens without notice) should not be acceded to. He said that in reality, these cases require an early substantive hearing. The remarks of Ouseley J are important, and I take the opportunity further to draw them to the attention of practitioners in this most difficult of fields. In the event, he ordered an early hearing which made provision (by consent) for O’s needs over the half term week.

Prior to the substantive hearing, the issues considerably narrowed. In the claimant’s grounds, it had been correctly stated that the primary legal issues in the case were whether a duty to accommodate the claimant pursuant to Children Act 1989 s. 20(1)(c) had arisen as the claimant contended, and if so how it should be discharged. In submissions and evidence filed on 8 March 2011, LBHF stated that “after long and careful consideration the defendant has decided not to try and argue that it is not under a duty to accommodate O under section 20 of the Children Act”. The duty to provide appropriate accommodation for O is therefore now accepted. However, as I indicated in the first paragraph of this judgment, there is a fundamental disagreement between the parties as to how that duty is to be discharged.

In Mr Odell’s witness statement of 8 March 2011 (as further explained in a witness statement of Ms Dawn Saunders, a social worker with LBHF) the Local Authority sets out how it has decided to discharge its duty to accommodate. In effect therefore, and both counsel accepted this, the decision of 8 March 2011 is the relevant decision for the purposes of the application for permission to bring judicial review proceedings (though it was made clear on the part of the claimant that its case is that there has been a continuing breach). Amended grounds were filed by the claimant.

Mr Odell sets out the history from the perspective of the council. He refers to the LBHF policy on accommodation taken from LBHF “child care policy and procedures”. He recognises the duty of the local authority under s. 20 (6) Children Act 1989 to ascertain O’s own wishes. He refers to the evidence, including that of Mr Eric Dwyer, an educational psychologist who gave a report of 18 January 2011, and Ms Dove’s report of 23 November 2010, and refers to O’s bond with his family members. He says that the Local Authority believes that O and his family have the capacity to enjoy a better relationship than currently with more appropriate support and more consistent strategies for managing his challenging behaviour. He refers to the fact that Queensmill School is recognised as an outstanding autism-specific school, and that the SENDIST decision of February 2010 confirmed that it could meet O’s educational needs. The school has itself confirmed, he says, that it continues to believe that O would fit in well and that it could meet his educational needs. The first two options in the January 2011 core assessment have now been ruled out he says, but a local residential placement that would allow O to attend Queensmill School is seen by the local authority as the best option at this time. This is the third option identified in the Core Assessment of 25 January 2011.

He notes that Purbeck View School is 123 miles from O’s house. Instead, the local authority proposes that O should be accommodated at the Sybil Elgar School, which is close to his home. Sybil Elgar is a specialist National Autism Society school located in West London. Subject to formal assessment, the head teacher has stated that it would be able to offer a 38 week (plus alternate weekends) residential placement to O from September 2011. It would mean him spending much less time at home than he does currently. He would board from Monday to Saturday. In addition, Sybil Elgar currently offer four residential activity weeks in school holidays. He would be at home with respite support provided by the Local Authority for ten weeks per year as opposed to the current fourteen weeks.

On this basis, O would attend Queensmill School during the day which the Local Authority considers is more appropriate to his needs than his current educational placement. It is 9.9 miles from Sybil Elgar to Queensmill, and Mr Odell says that the head teacher at Queensmill has stated that she believes that the transport to and from school would be manageable by O, based upon what she knows of him, as well her experience of other children with similar needs and difficulties.

During the interim period, that is to say up to the beginning of September 2011, it is proposed that O should continue to attend LVS Hassocks until the end of the current academic year. Prior to taking up residence at Sybil Elgar, the proposal as of 8 March 2011 was that he would have a weekend residential placement at a place operated by Care Management Group called Lilliputs in Havering, which is an autism-specific facility 26 miles from his home.

In her second witness statement of 11 March 2011, O’s mother explains why she fundamentally disagrees with these proposals. Sybil Elgar is an NAS school in Ealing/Southall, which is primarily a day school, and which does not offer 52 week provision. She says that she visited Lilliputs as well, and while the site has a great range of activities, it could not meet O’s needs as a short term, temporary respite placement. While far from ideal, she would prefer that O moves now to Purbeck View into the presently available 38 week placement, albeit that would not cover the forthcoming school holidays. As regards the Local Authority’s post August 2011 proposal, her view is that the journey would take longer from Sybil Elgar to school than suggested by LBHF, and that O could not cope with returning to Sybil Elgar on a daily basis. He would not fit in with the other children who would be attending there for both education and residential provision. He would be seen as a different child, and his anxiety levels would increase even further. Letters of 14 March 2011 from LVS Hassocks are produced in support.

There was a further development which took place on 15 March 2011 (that is just before the substantive hearing before me). It appears that Ms Rachel Strutt who deals with admission to Lilliputs had been due to meet O the week before, but it was then agreed that his mother should visit first. O was due to go there himself on 15 March, but unfortunately was ill that day with suspected mumps or tonsillitis. Ms Strutt then emailed the Disabled Children’s Team to say that Lilliputs would not be able to accommodate a young person for a short period, and she has since confirmed that. She deals in some detail with what she understands to be O’s behaviour and associated risks, saying that as a matter of initial feedback, these would have an unsettling affect on other people at Lilliputs and she would not be able to offer a placement. However, she would be happy to meet O once he feels a little better.

Mr Odell says that the Local Authority is concerned that a full and balanced picture has not necessarily been presented to Lilliputs, and is particularly concerned that a different picture may have been presented to Purbeck View, and that it wishes to explore matters further with Ms Strutt. In the event, as things stand at present it seems unlikely that Lilliputs will offer O a placement. LBHF’s current proposal is that O should remain at LVS Hassocks until the end of the academic year and be at home during the school holidays (as he would be were he to be placed now at Purbeck View). Interim respite would continue to be available, including overnight and weekend respite at the Local Authority’s facility at the Haven.

In her third witness statement of 15 March 2011, O’s mother explains why in her view, new overnight carers could not be accepted into the family home, particularly given the unsettling effect on their younger children. Respite at the Haven is not appropriate for reasons given by Ms Dove, with which she agrees.

As regards costs, for the period from now up to the beginning of September 2011 the rival proposals cost about the same, that is just over £65,000, though the local authority’s costs include those of Lilliputs, which is effectively not now available as an option. From the beginning of September 2011, the annual costs of the claimant’s residential care at Purbeck View would be £189,000 (or £184,000 if O’s parents took responsibility for the cost of driving him to and forth from home).

The proposal combining Sybil Elgar with Queensmill would cost £167,000 for the first year but that includes a one off assessment fee of £45,000 by Sybil Elgar. For subsequent years the cost would be £122,000 per annum. There is therefore annual differential of about £60,000 between Purbeck View and Sybil Elgar/Queensmill for the years following the first year.

The contentions of the claimant put by his counsel Mr Stephen Broach were prefaced by what he called four fundamental issues. Firstly, he submitted that Wednesbury unreasonableness is not a single standard, but a sliding scale, and that in this type of case, the standard should not be set too high. In determining unreasonableness or irrationality, the court must engage in an intense review. If accommodation is unsuitable, then its provision does not comply with the statutory duty. In this case, the child’s feelings do not point in any particular direction. Under the framework for the Assessment of Children in Need and their Families (Part Four), the local authority should have come up with a realistic plan of action at the time when the Core Assessment was published in January 2011, and had no right to more time. Finally, the claimant submits that a mandatory order may be made in a case such as this where there is only one rational course open to a public body. The only rational course, in this case, it is submitted, is to order the local authority to provide a residential placement at Purbeck View with immediate effect.

There are six grounds relied on behalf of the claimant in support of the judicial review application. As I have said, the current decision is that of 8 March 2011, though this must be seen in the light of developments, and the claimant’s case is that there has been a continuing failure by the local authority to comply with its statutory duty. First, it is contended that the local authority failed to have regard to s. 9 Education Act 1996 which states the “general principle that pupils are to be educated in accordance with the wishes of their parents”. It is said that the local authority’s interim and final proposed packages are intimately connected with the claimant’s education, and the two should be taken holistically. This point is made in connection with parental choice and the extent which the decision depends on cost differentials. In this case, the Local Authority failed, it is said, to have regard to parental preference.

Second, it is contended that the defendant is in breach of the duties imposed by the Children Act Guidance covering “Care Planning, Placement and Case Review” which was re-issued in March 2010. In particular it is said that given the difficulties with transitions, the proposed placement is not the “most appropriate placement available”. There has been no partnership with the parents to develop a placement plan. It is perverse, it is submitted, to go against the evidence that Purbeck View is the only place on the evidence in which O could start and stay. So, it is submitted, the local authority has not asked itself the right question. This was the paragraph of the Guidance particularly referred to in oral argument, though in written submissions reference is also made to paragraphs 2.65 (educational implications) and paragraph 2.69 (minimising disruption).

Third, it is contended that there has been a failure to discharge the Children Act 1989 s. 20(1)(c) duty. The only person, it is submitted, who can determine whether or not the parents caring for the child concerned are prevented from providing him with suitable accommodation or care are the parents themselves. They have said that they cannot have O living with them now, and that is conclusive. This is relevant to the time that O would spend at home over weekends and holidays.

Fourth, it is contended that the Local Authority failed to treat O’s interest as a primary consideration, since regard was paid to the cost of the different options. This has however effectively fallen out of the picture, since the Local Authority has made it plain that cost is not a factor in the decision it has reached.

Fifth, it is contended that the Local Authority’s decision is a disproportionate and unlawful interference with his Article 8 ECHR rights, or in the alternative is a breach of the Local Authority’s positive obligations to promote the fulfilment of his Article 8 rights.

Sixth, it is contended that applying the intensity of review required, the court should hold the defendant’s decision making to be irrational, in particular through a failure to ask and answer the necessary questions. The only permissible question was as to the most appropriate placement for O. The Local Authority has consistently refused to give any or any proper consideration to the potential for the claimant to be placed at Purbeck View. Its decision is specifically irrational given O’s need for minimal transitions. Its approach to the case has been unconscionable.

By way of relief, the claimant seeks:

1.

Permission to apply for judicial review;

2.

Declarations in relation to each of the six grounds set out above;

3.

A mandatory order requiring the defendant to place the claimant at Purbeck View with immediate effect and at least until the end of the current academic year, such placement to continue until at least 28 days after the defendant proposes an alternative package of support which in its view constitutes the “most appropriate” placement for the claimant.

The Local Authority represented by Mr Paul Greatorex submits that the decision in this case was one that it had to take. The court can only interfere if it was Wednesbury unreasonable. The arguments on behalf of the claimant are, it says, more apt for a merits appeal, such as that carried out by the First Tier Tribunal in relation to schooling. It submits that the claimant is wrong to suggest that the local authority’s decision is contrary to the expert evidence. Mr Odell is an expert, and his team is expert, and it is they who have had to make the decision.

The finding of the First-tier Tribunal is important, it is contended, because it informed the local authority’s decision, provides a complete answer to the principal criticisms made by the claimant, and renders unarguable a perversity challenge based on those matters directly considered by the Tribunal. The Tribunal was itself composed of independent experts who considered that O’s educational needs did not require a residential, as opposed to a day school, placement. The Tribunal was aware of the strains that O’s complex needs placed on the family, but he was not exceptional within the category of autistic children.

Had the local authority suggested Purbeck View against the parents’ wishes, the fact that it was 123 miles from his home would have been seen as a very negative factor. In any case, it is contended, parental preference cannot make a lawful decision unlawful. Transitions may be taken to mean a transition from one placement to another, or from home to school. It was inherent in the Tribunal decision that going to school daily was not in itself decisive, since it determined that O did not need to be educated within a residential setting. Queensmill is recognised as an excellent school, and the school itself considers that O’s daily commute would be manageable.

It is contended that O’s case was very carefully considered. Concerns about his placement in LVS Hassocks emerged relatively soon, and this is consistent with the fact that a residential placement is not the only suitable placement, and that the local authority’s disagreement with the claimant’s case is a rational one. Its decision is essentially a matter of judgment. It is not open to parents to refuse to have carers in their house, and use that as a reason for a residential placement. A residential placement would have its own difficulties so far as settling in was concerned, and placing O in a single setting risked his long term institutionalisation.

The correct approach, it is contended, is that the court should approach the question by considering the position from 1 September 2011 because (1) that is the relevant starting date for both parties’ principal proposals, (2) it is rational to start by considering the long term position, and (3) what Ouseley J said about interim solutions becoming permanent, because once O had settled in at Purbeck View, any further move would be disruptive (I shall come back to this last point).

Mr Greatorex told me that the local authority had made it clear at the hearing before Ouseley J that it might not have a placement ready by the time of the expedited hearing. He told the court that they would deal with the s. 20 issue within that time, and ideally placement as well, but it was obvious that they might not get the required offers in place by the hearing.

Mr Greatorex contended, and Mr Broach accepted, that LVS Hassocks is not unsuitable as of now. Nobody was suggesting (he said) that O had to leave the school tomorrow. Ms Saunders’ evidence covered a conversation she had had with the deputy head of the school. She stated that it would be useful for O to have a long transition into any change, for example if he was moving schools then preparation and planning should start now for a move in September. The current school, Ms Saunders says, is of the view that it is in O’s best interests to move at the end of the academic year. For that reason, Ms Saunders considers the local authority’s proposal that he remains at LVS Hassocks to be less disruptive than an interim placement at Purbeck View, as requested by O’s parents.

As regards the claimant’s six grounds, first, this is not a claim about O’s education or his parents’ right for him to be educated in accordance with their wishes, but about his need for accommodation under s.20 Children Act 1989. Even if it was for the court to consider this argument, all that s.9 Education Act 1996 confers is the right to express a preference which does not have any compulsory effect (compare preferences for a maintained school). Second, the local authority has acted entirely consistently with the statutory guidance. It has paid proper regard to paragraphs 3.3, 3.4 and 3.5, the latter in particular requiring it to ensure, as far as reasonably practicable, that the placement allows the child to live near his home. Third, there has been no failure to discharge the s. 20(1)(c) duty. O will be spending considerably less time at home than at present, and will be in an outstanding educational placement which has a proven track record in improving the behaviour of autistic children.

The fourth ground does not arise, it having been made plain that cost is not a factor in this case. Fifth, article 8 is not engaged in any meaningful way, but in any case it is impossible to see why the Local Authority’s proposal amounts to a breach of his rights, whereas if it agreed to his parents’ proposal there would be no such breach. The sixth ground, that is to say irrationality, is in truth the only ground upon which LBHF’s decision can be challenged. However this is the case of strong disagreement on the part of O’s parents with the decision that has been taken and the very strong desire to have him placed at Purbeck View. It is not open to the court to consider the competing merits of the proposals, but simply to decide whether the decision is perverse. It is not, and the court should refuse permission, alternatively grant permission, and dismiss the claim.

In reply submissions, Mr Broach submitted that the only novel matter in this case is the proposal that the claimant should live in one place, and be educated in another. It is not denied that Queensmill can meet his educational needs, but viewed in the round he requires minimum transitions. The Tribunal was only looking at the claimant’s educational position. A different question arises under s. 20. There were various reasons why the Tribunal’s finding was not conclusive. First, time has moved on. O was eleven at the time of the hearing and is now nearly thirteen, and circumstances have changed. Second, there is expert evidence available now which was not before the Tribunal.

The Core Assessment option three refers specifically to minimal transitions. But that is not met by what is recommended now. The Local Authority has asked the wrong question, since the question is not what the Tribunal said, but what is most appropriate in terms of accommodation now. The medical evidence now available shows that contrary to the Tribunal’s view O is not a typical autistic child, because a feature of his presentation is his high state of anxiety. Dr Hindley’s view is that a 52 week residential placement is required. The difference between the interim proposals put forward by the parties is that although O in both cases would be at home for the holidays, he would be accommodated at Purbeck View during weekends.

A particular disadvantage of the local authority’s proposal, Mr Broach contends, is that he would have a succession of new escorts, and new drivers, and very little consistency.

A broad and purposive approach to the interpretation of whether a parent is “prevented” from providing a child with suitable accommodation and care so as to trigger the s.20(1)(c) Children Act 1989 duty means that if parents assert that they are so prevented, then the duty is engaged, save perhaps if that assertion is fleeting or capricious.

As to what was said in front of Ouseley J, although Mr Broach accepts that the Local Authority made the points which I have recorded above, he emphasises that the claimant never agreed that the local authority would need more time. In any case, the court has to decide on the basis of the facts as they are today. The position is of necessity fluid. It is not the claimant’s case that the only rational placement is in Purbeck View. His case is that any rational placement must be one with minimal transitions. This is one of the rare cases in which the court should make a mandatory order. The effect of quashing the decision and remitting it for reconsideration would only result in further delay.

The statutory framework is not in dispute in this case. It is sufficient to set out section 20(1) Children Act 1989 which provides as follows:

20.— Provision of accommodation for children: general.

(1)

Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)

there being no person who has parental responsibility for him;

(b)

his being lost or having been abandoned; or

(c)

the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

It is not in dispute that O is in need under subsection (c).

Other relevant provisions within this act are subsection (6), which I have mentioned already, and which provide the local authority should so far as practicable and consistent with the child’s welfare, ascertain and give due consideration to his wishes. Section 23(2) as amended provides how a local authority may comply with its statutory duty:

23.— Provision of accommodation and maintenance by local authority for children whom they are looking after.

…

(2)

A local authority shall provide accommodation and maintenance for any child whom they are looking after by—

(a)

placing him … with—

(i)

a family;

(ii)

a relative of his; or

(iii)

any other suitable person,

on such terms as to payment by the authority and otherwise as the authority may determine … ;

…

(aa) maintaining him in an appropriate children's home;

(f)

making such other arrangements as—

(i)

seem appropriate to them; and

(ii)

comply with any regulations made by the [appropriate national authority].

…

(8)

Where a local authority provide accommodation for a child whom they are looking after and who is disabled, they shall, so far as is reasonably practicable, secure that the accommodation is not unsuitable to his particular needs.

I am told that as from 1 April 2011 subsection (8) will be recast in positive terms, but it is not suggested that this makes any practical difference so far as this case is concerned.

I will deal first with certain timing points that have been raised. As indicated above, it is submitted on behalf of the claimant that the Local Authority should have come up with a realistic plan of action at the time when the Core Assessment was published in January 2011, and has no right to more time. A further point made is that even at the time of this hearing, a key element of the Local Authority’s package, namely the residential placement at Sybil Elgar School may not in fact become available because the place is subject to an assessment, as described above, and Lilliputs is now shown to be unlikely to be available.

The Core Assessment was made on 25 January 2011. Criticisms have been made of it on behalf of the claimant, but it appears to me that it is a careful document in which all relevant views have been recorded, including the view that a 52 week residential option was required. Every case is different, but in a case as difficult as this one, the Local Authority was entitled to set out at that stage a number of options, deciding that there should be further discussions with the parents. Had it fixed on a particular option at that stage, it would have been open to the objection that it was acting without regard to parental wishes, which is indeed an argument raised on behalf the claimant in any event.

I have set out the timing above, and it was largely out of the Local Authority’s hands. The pre-action protocol letter to the Disabled Children’s Team at LBHF requiring a placement at Purbeck View was sent on 31 January 2011. Proceedings were issued on 11 February 2011. In this respect, I refer to what Ouseley J said at the hearing on 16 February 2011 ([2011] EWHC 369 (Admin) paragraph 2):

“Severely disabled children impose, as they grow older, increasingly severe strains on their family, parents and siblings. The growing costs of their education or accommodation and care lead, at times to severe disagreements and conflict with the local authority which may owe duties under the Children Act towards the child. There is often a pattern of negotiations with lawyers involved and a seemingly tight timetable, driven by the strain under which the family lives and educational changes, term timetables and vacations. There is a tension to a degree between the urgency which the claimant may feel the case requires and the opportunities for negotiation which the claimant may wisely pursue. There is a great deal of scope, unfortunately, for distrust to arise between the local authority and the claimant's family, and for a claimant to feel, rightly or wrongly, that the local authority is unjustifiably dragging its feet in responding to challenges to its assessments and further and other expert reports on the child’s welfare.”

At the hearing, the Local Authority made it clear that it might not have a fully finalised proposal ready by the time of the expedited hearing on 16 March 2011, and that proved to be the case. It is not open to criticism in that regard.

As regards the claimant’s six grounds in support of the judicial review application, my views are as follows. First, so far as s.9 Education Act 1996 may be relevant where the question is as to appropriate accommodation under s.20 Children Act 1989 (as to which I express no view) Purbeck View is not in the state sector, and so parental preference is not binding, though it is a factor to be taken into account: C v Buckinghamshire County Council [1999] ELR 179. The strong parental preference in this case for Purbeck View is clearly a factor to be taken into account, not least because it is common ground that these are concerned and loving parents who are striving to achieve the optimum outcome for their son, and the rest of the family. I should say that I agree with Mr Broach however that this is not a case in which O’s wishes can be taken to point one way or the other.

I do not accept the claimant’s second ground to the effect that the local authority is in breach of the Children Act Guidance. They have, in my view, sought to follow it, and in so far as (as is alleged) there has been no partnership working with the claimant’s parents to develop the placement plan, that appears to have at least in part followed from the pre-action protocol letter making it clear that Purbeck View was the sole choice that would be acceptable, at least on an interim basis, and the timing considerations which I have set out above.

As regards the third ground, I accept the submissions made by Mr Greatorex. The contention that only the parents caring for a child can determine whether or not they are prevented from providing him with suitable accommodation or care so as to fall within s.20(1)(c) Children Act 1989 is not supported by authority, and is not in my view correct. This is a matter for the Local Authority to determine on an objective basis. In any event, on the facts of the present case, the Local Authority proposal allows for O spending much less time at home than is currently the case.

The fourth ground relating to cost has, as I have said, effectively fallen out of the picture. In that regard, Mr Greatorex made it clear that this was not a case in which the Local Authority was saying that it could not afford the parental choice, or at least to meet O’s needs. Its case is that the proposal it has made is the suitable and appropriate one for O. I accept the submission that where Mr Odell states in his witness statement that were the cost of the 52 week placement at Purbeck View the same as that being proposed by the local authority then consideration would have been given to agreeing it, that means no more than if all other things had been equal, parental choice may have been treated as decisive. I do not think that, taken fairly in context, it means that no consideration has been given to Purbeck View.

As regards the fifth ground raised Article 8 ECHR, I would adopt the approach that Wilson J adopted in R on the application of CD v Isle of Anglesey CC [2004] EWHC 1635(Admin). He said that he did not think that it added anything to the case to seek to augment the statutory duties upon the local authority with their duties not to infringe the claimant’s rights under Article 8, given that the statutory scheme in the present case is concerned with positive obligations all of which are consistent with, indeed intended to promote, Article 8 considerations.

It is with the claimant’s sixth ground, namely its irrationality challenge, with which this case, in my judgment, is primarily concerned. To recap, the claimant’s case is that in formulating its decision of 8 March 2011, the Local Authority failed to ask and answer the necessary questions, failed to give proper weight to the expert evidence, failed to give sufficient weight to the need to avoid multiple transitions in caring for O, and gave too much, and inappropriate, weight to the decision of the Tribunal.

Mr Greatorex has rightly reminded me that it is not for the court to substitute its own decision for that of the Local Authority. On the other hand, I accept Mr Broach’s submission that the profoundness of the impact of the decision requires a degree of intensity of review. In that regard, I have adopted the approach of Langstaff J in The Queen on the Application of L v Leeds City Council [2010] EWHC 3324 (Admin), which involved an analogous question to the present one. At [59] he said:

59 … 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.

I deal first with the claimant’s contentions as regards experts. The claimant places weight, in my view with justification, on the views expressed by Dr Hindley on 20 November 2010 that I have set out above. He recommended a 52 week residential placement for O, and his report carries weight not just because he is an expert but because it is associated with the views of Dr Baird, who as stated above has been concerned with O’s medical needs for the greater part of his life. I do not think that the same necessarily applies to the reports of Ms Dove, thorough and useful though these are. The views of LBHF are based on those of its own very experienced social workers, and I accept its submission that a local authority is entitled to give little or no weight to expert reports obtained by the claimant providing that its own view is sound. This was the view expressed by Collins J in A v London Borough of Croydon [2009] EWHC 939 (Admin), a view not affected by the subsequent decisions on appeal in that case.

In my view, the correct starting point is the Core Assessment of 25 January 2011. It is now accepted by LBHF that the third option it proposed is the right one. This was that it “considers a residential placement for O which would meet his needs for stability, structure, minimal transition and input from carers experienced in working with young people with autism”. On the evidence, it further seems to me that the Local Authority has been correct to submit that the proper focus of decision making in this case is on a long term solution. However difficult matters are when O is at home over weekends and holidays, it was common ground at the hearing before me that LVS Hassocks is not unsuitable as of now. In the light of Ms Saunder’s evidence set out above, it is not irrational for the local authority to take the view that it is in O’s best interests to move at the end of the current academic year. This is also relevant to the claim for a mandatory order.

The court’s primary scrutiny, in my judgment, must be upon the proposal made by the Local Authority on 8 March 2011 and set out with care in Mr Odell’s witness statement under which, from September 2011 O would attend Queensmill School, and so far as accommodation is concerned, would live on a 38 week per year basis at Sybil Elgar School, which is about thirty minutes drive from Queensmill school.

In reaching that decision, it was made plain on behalf of the local authority both in Mr Odell’s evidence and in oral submissions at the hearing that very considerable weight had been given to the decision of the First Tier Tribunal of 5 February 2010. It came close, in my view, to being a determinative factor in LBHF’s decision.

There is, however, as it seems to me, a difficulty with this approach. The question for the Tribunal was whether O required a 24 hour curriculum on educational grounds or whether his special educational needs could be met by the specialist provision at Queensmill School combined with a consistent approach in the home setting. It reached the view that O was not amongst the small number of autistic children needing a 24 hour/waking day curriculum. That determination has been overtaken by the Local Authority’s Core Assessment of 25 January 2011 which (leaving aside options one and two which are no longer pursued), a residential placement is now considered to be the appropriate option. Further, there is force in the point made by Mr Broach that O was aged eleven at the time of the Tribunal decision, and will be thirteen this summer, and likely at the outset of puberty. This (it is accepted on all sides) can have a profound effect on his behaviour and needs. In those circumstances, I consider that the Local Authority gave too much weight to the Tribunal decision in its own decision making.

Further, the Core Assessment refers to the need for “minimal transitions”. Despite the discussion during argument as to whether this meant transitions between placements or transitions to and from school, in context it appears clearly to be referring to the latter. It is correct that the Local Authority’s evidence is to the effect that it believes (following discussions with staff at Queensmill) that O’s daily commute between Sybil Elgar and the school can be managed. But I accept Mr Broach’s submission to the effect that it does not appear that LBHF has fully considered, or at least given sufficient weight to, the nature of the transitions inherent in its proposal. These would be daily during term time, with every possibility of different cars, different drivers, thereby (on the face of it) conflicting with the reference in the Core Assessment to his needs for stability and structure. Further, as he submits, there is (on the face of it) an oddity in a proposal that results in O boarding at Sybil Elgar School, whilst attending a different school. That gives rise to the possibility that he may be treated as the odd one out, with implications for the heightened anxiety to which his condition makes him prone. In my judgment, the claimant is right to submit that the Local Authority has given insufficient weight in its decision to the accepted need to minimise transitions.

These points are fundamental to the overall judgment, and for these reasons I am of the view that the claimant succeeds on its sixth ground. It follows that the defendant must reconsider its decision of 8 March 2011 as to how it provides an appropriate residential placement for O, meeting his needs for stability, structure, minimal transitions, and including input from carers experienced in working with young people with autism. It also follows that permission is given to bring these proceedings and the claimant is entitled to a declaration that the decision of 8 March 2011 be set aside on Wednesbury grounds. In any case, I have no doubt that the Local Authority will carefully reconsider matters in the light of the points made in this decision.

I come finally to consider the claimant’s application for a mandatory order. In R v Ealing London Borough Council, ex parte Parkinson (1995) 29 HLR 179, Laws J said at 185-6: “Even in a case where a decision is struck down in the public law court on Wednesbury grounds, it is by no means a necessary or usual consequence that the public body ought to have acted in one way and one way only. The relief typically given is an order of certiorari to quash the decision, with the result that the respondent must think again. There are, it is true, rare cases where the public law court is able to conclude that only one result was legally open to the body in question, and in that case an order for mandamus may issue to require that result to be arrived at. Even there, however, the court does not undertake the role of primary fact-finder, substituting its judgment on the merits for that of the body reviewed. It merely recognises the existence of the situation in which a public authority, properly directing itself on the facts according to the law, has only one choice legally open to it.”

The claimant as I have said is seeking a mandatory order requiring the defendant to place the claimant at Purbeck View with immediate effect and at least until the end of the current academic year (such placement to continue until at least 28 days after the defendant proposes an alternative package of support which in its view constitutes the “most appropriate” placement for the claimant). This is effectively the same as the interim order sought at the outset of these proceedings. As Ouseley J said at [2011] EWHC 369 (Admin) paragraph 4 in that regard:

“… One of the major problems with interim relief in the form of an order for the placement of a child in a particular school is that it is very often akin to substantive relief. If the child is in an educational institution for a period of time, the disruption upon removal becomes a factor in the substantive decision. The child will also have developed in response to the circumstances at that institution which will, in turn, affect substantive relief.”

Having heard the case, that view appears to me to be valid and applicable. I do not consider that an immediate placement at Purbeck View was the only result legally open to the Local Authority, and it follows that the claim for a mandatory order must fail. It is right to add that there is a considerable degree of urgency in reaching a resolution. It is also right to reiterate that the interim arrangement initially put forward by LBHF has turned out to be (very probably) unavailable. I hope with this hearing out of the way that the parties can now re-engage with each other. My understanding is that LBHF has placed children in Purbeck View School before, and I am confident that it will wish to give close regard to the views of O’s parents in this respect, particularly given the ascertained availability of a placement at Purbeck View, as against alternative placements. I am sure that there will be an open mind on behalf of the claimant’s parents as well.

In the result, permission to bring the proceedings is granted, and the decision of 8 March 2011 is set aside on the basis of, and for the reasons, set out above.