W, R (on the application of) v Croydon Borough Council

MR JUSTIE OUSELEY: SW, the claimant, is a young adult aged 21 with autism, severe delay in language development which manifests itself in a range of difficult behaviour, and severe learning disabilities. Since 2005 the London Borough of Croydon has paid for accommodation to be provided for him in Hesley Village in South Yorkshire. Hesley Village is in a rural area, fairly isolated from other villages and towns, and is the name given to a large mansion with extensive grounds which accommodates facilities for young people with difficulties such as those the claimant has. It is for young people aged about 16 and over.

The claimant is happy there and his parents, though aware of some deficiencies in the provision for SW at Hesley Village, are keen that, for some time at least, he should remain there. Croydon has conducted an assessment of his needs in March, and again in June, of 2010 in which it came to the view that Hesley Village was not a suitable place for the claimant to remain in. They had a number of specific concerns but the two primary concerns can be summed up as that it was not encouraging the claimant towards independence but was instead overly restricted and isolated; and secondly, that its cost, at £4,800 a week, was more than twice what the local authority would usually expect to pay for someone with needs assessed as the council had assessed the claimant's. The decision was taken, in circumstances to which I shall come, that the claimant's placement should be terminated and that he should be moved to other accommodation involving supported living.

The claimant's mother, his litigation friend, challenges that decision on the grounds that there was no adequate consultation with the claimant's parents and with Hesley Village, in order, such as was required, to satisfy the legal requirements in relation to the assessment of needs, and more particularly in relation to choice of placement. The council acknowledges some limited shortcomings in its consultation process but contends that the parents were adequately consulted and that the decision should not be quashed on account of the relatively minor deficiencies so far as consultation with Hesley Village are concerned, which it accepts.

I can clear out of the way at the outset one important point. This challenge is to the consultation process. It is not a challenge, as Mr Cragg made clear and inevitably had to accept, that it would be irrational to move the claimant from Hesley or that other factors, and in particular the high cost of maintaining the placement which the council gave great weight to, were either irrelevant factors or ones which would not entitle them, if re-consulting on the decision, to come to the same conclusion.

The relevant statutory framework for consultation is this. The accommodation, both at Hesley Village and in any alternative placement, would be provided by virtue of the obligations under section 21 of the National Assistance Act 1948. The obligation to consult in relation to accommodation comes from the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, made under section 7(a) of the Local Authority Social Services Act 1970 and the guidance which has been issued.

The direction provides that a local authority shall only be required to make arrangements for accommodation in the preferred accommodation. Paragraph 2 requires the local authority to make arrangements for section 21 accommodation at the accommodation preferred by the person for whom it is being provided. Paragraph 3 says that that obligation only continues if the preferred accommodation is assessed by the authority to be suitable in relation to the individual's needs; if the cost of making such arrangements would not require the authority to pay more than it would usually expect to pay, having regard to those needs; if the accommodation is available, and if the persons provide it subject to the authority's usual terms and conditions. That is self-explanatory.

There are further directions in relation to community care in the Community Care Assessment Directions 2004. These require carers, which for these purposes include the parents but probably not Hesley Village, to be involved as much as possible in the decisions made in the best interests of the person catered for. Those directions are made under the National Health Service and Community Care Act.

Guidance in relation to assessment has been issued under section 7 of the Local Authority Social Services Act 1970, which local authorities have to apply in the absence of good and express reason. This makes clear, in paragraphs 81 and 85, that there is a duty under the directions to consult the person being assessed and, where appropriate, as will be the case here, the assessment should involve a full discussion with close family members and take into account their views about the person's needs. That is important because it is not disputed but that SW has no capacity to make or participate in a decision about where he might be moved to. He can merely express happiness at being where he is.

Access to an independent advocate has been sought but an independent advocate has not yet been appointed.

Other passages in that guidance require councils to look at the cost effectiveness of support options on the merits of each case and, at paragraph 145, the guidance says that it may be appropriate to involve the providers of services in assessments. That does include Hesley Village.

The Mental Capacity Act 2005 is of particular importance in view of SW's lack of capacity. Section 1(5) provides that an act done, or decision made under this Act for or on behalf of a person who lacks capacity, must be done or made in his best interests. Section 4 deals with how best interests are to be determined. The person making the determination, and here that is the local authority, must consider the matters provided for in section 4(6) and (7). These provide, so far as material:

Finally, subsection (9) provides that, in a case of the decision of the sort this case is concerned with, there is sufficient compliance with the obligations in section 4 if the person reasonably believes that what he does is in the best interests of the person concerned. But that is subject to the proviso that he must have complied with the requirements of, amongst others, subsections (6) and (7).

It is not disputed but that persons who had to be consulted by virtue of section 4(7) were the parents and also the service provider, Hesley Village. As I have said, the claimant himself could express no view as to the future, but he was in position at least to make his feelings known about how he felt about the present.

The Code of Practice promulgated pursuant to the Mental Capacity Act 2005 elaborates on the obligations in section 4 without adding anything of significance to them, at least for these purposes.

In March 2010 the local authority carried out an assessment of the claimant's needs. This contained a number of concerns about the suitability of Hesley Village as a placement for the claimant, including matters such as a failure of an Ofsted inspection, a lack of support for him to access college courses at the local college, incidents in relation to a dislocated knee in respect of which there appeared to have been no health plan, a lack of choice for the claimant to visit professionals in the community rather than on site, a possible relationship between problematic behaviour around the time of the two knee dislocations, requests for reviews of activities not being provided, and an absence of documented evidence of the outcome of a recent intervention by a speech and language therapist. On a more general level, the assessment raised concerns that the establishment in which SW had been placed as a child no longer met his needs as a young person. It was established away from the local community, depriving SW of a choice as to when to access the local community, providing instead a very isolating and detached environment. There was a criticism of the lack, or rather the limited nature, of the activities provided to him. There was said to be an urgent need to conduct a full assessment of needs to look at un-met needs.

The parents were not consulted about that assessment until, as I shall come to, a meeting of 29 July 2010. The assessment was not shown to Hesley until after the decision had been taken to move the claimant.

The further assessment, carried out in June 2010, noted the concerns from the March 2010 assessment and the more general concerns as well. The same broad areas of concern were repeated in the June 2010 assessment. It concluded that Hesley offer a very secure placement, detached from the community environment, which the claimant's level of challenging behaviour did not warrant and, with no college status, Hesley now only provided an overly restrictive secure environment given the claimant's needs. The assessment recommended:

It being evident that the claimant lacked capacity, a best interests meeting needed to occur, including the parents.

A good deal was made by both sides of how one should read the last two sentences of that recommendation, in terms of the firmness or otherwise of the view expressed, and what might turn on exactly how one emphasised the words "it appears" when reading the penultimate sentence, as words of conclusion or initial view.

The parents were not involved in that assessment, nor was Hesley Village, beyond that questions obviously were asked of them about the areas of interest.

On 20 July 2010 the council wrote to the parents informing them that:

The meeting was to be held on 29 July 2010.

It had been intended by the council that Hesley Village should be participants at that meeting but, through a chapter of accidents and a breakdown in communication, Hesley Village was not represented and the council did not know why they were not there. In fact, there was a misunderstanding about their availability to attend that meeting rather than it being any want of interest or care.

The parents did attend that meeting. Shortly before the meeting, but after they had arrived at the venue, they were provided with the March and June 2010 assessments and they were given time to read the assessments. It is contended by Mr Cragg, on behalf of the claimant, that the decision had already been made, before that meeting began, that SW should be moved from Hesley Village, and all that was to be done was for the decision to be explained and consultation to follow over where SW might be moved to. The council contends that the decision was made at the close of the meeting, having heard what the parents had to say about the claimant remaining at Hesley Village and the problems of moving him.

The minutes record Miss Murray, in the Chair, saying that the council was concerned about the placement at Hesley but they wanted to work closely with the parents to see that the boy's needs and issues were taken into account fully. The parents were told that they all needed to move forward in terms of the claimant's best interests and Miss Murray said that the council was looking at moving him. The claimant's mother said that she was all for change so long as it was for the best, and they were happy for him to move so long as where he moved to was better than where he now was. The parents both said that their son was safe, secure and happy as Hesley, but they would be happy for him to move if they were convinced that he would be safe, secure and happy in the new residence.

The parents said they did not agree with a lot of the content of the assessments with which they had been provided. The mother asked why they had only just been given it and said she felt they should have had it before the meeting so they had time to digest it. They pointed out that the report was in error in relation to Ofsted. Somewhat later, the council accepted this was correct. The advantages of isolation were pressed by the parents. The deficiencies were discussed, as seen by the council, including the council's view that, although what was done at Hesley might look good on paper, the reality was somewhat different, and that there was rather less stimulation provided than at other places where the council, for rather less money, provided services. Hesley was neither a very good service nor a long term option.

The parents clearly disagreed about the drawbacks of Hesley Village being isolated but Miss Murray said that "we need to move forward from where we are now". The mother said she would fight the idea of her son living in the community.

The question of cost came up and Miss Murray said that they could not keep paying £2,000 a week more than they needed to for someone's care, and Hesley in that respect was not viable. She was even stronger in saying that, given the amount of money Hesley were getting paid for the care of the claimant, it was scandalous how poor the service actually was, to which the parents riposted that their son was happy there, which Miss Murray acknowledged, and the importance of that to the parents. She was concerned that money was disappearing from what they provided to Hesley Village for the claimant and was being used for others' needs rather than for his. And so, the meeting turned to where else the claimant might go, but there were no details then provided.

The meeting ended with this:

On 6 August 2010 the council wrote to Hesley Village, enclosing the 10 June statutory reassessment under the Community Care Act 1990, and said that the outcome had been determined and Hesley Village was unable to provide the claimant with the level of support he required to promote his independence. As a result of that, he was to be transferred to supported living accommodation and their assistance was sought in so doing. They were given the 3-months notice which the contract required.

Although that letter was seen, perhaps understandably, by the parents as precipitate, it has been made clear, and subsequently demonstrated, that the placement at Hesley would be kept open until an identified suitable alternative was available and arrangements had been made for an appropriate transfer. It was not a determination with a view to a removal in 3-months time regardless of those matters.

Mr Cragg contends that the decision had been taken by 6 August. Whether the decision was taken at the end of the meeting of 29 July or by the letter of 6 August does not matter greatly. The primary point made by Mr Cragg was that, effectively, there was no consultation because, in reality, a decision had been taken before the meeting of 29 July 2010 commenced. I shall return to that.

At all events, it is not in dispute but that the decision was taken before the letter of 12 August 2010 was sent by the parents to Croydon. This letter raised a significant number of concerns about what had happened at the meeting and about the earlier assessments. They raised the reason why Hesley were not represented which, to their mind, made a balanced meeting not possible; they complained that they had had insufficient time to digest the two assessments before the meeting; were concerned that these matters had not been raised at the last annual review, which had been positive; and made a whole series of comments about the specific and general concerns in the assessment. They considered it irresponsible for 3-months notice to have been given before possible alternatives could be examined. I have dealt with that point.

The points which they raise in relation to the concerns in many ways take on board points which Hesley itself had sought to make in response to those assessments when it provided comments in, first, a telephone call, also of 12 August 2010, to the council. The decision was also taken before the letter of Hesley Village, dated 2 September 2010, to the council, which responded to the concerns in the two assessments.

Subsequently, the parents have visited three alternative placements to which the council has referred and has responded, in detailed correspondence, taking issue with their suitability for SW, at least at the present, and for some time.

Mr Cragg submits that the process of consulting the parents and the service provider for the purposes of the best interests meeting was inadequate. The decision had been taken before the meeting began. Alternatively, there was insufficient information provided in time for the parents to respond. The council did not know what Hesley Village's views were and have accepted that, in some respects at least, its views about the deficiencies are mistaken, notably, in relation to the significance of the Ofsted inspection and the health care plan. The other issues between the council and Hesley Village remain unresolved. He submits that the parents were not consulted as required in relation to the June 2010 statutory assessment. He puts the case, as of course in a consultation case it can be put, in a variety of other ways; the views of the parents were not taken into account, as required by the Choice of Accommodation Directions 1992. The final proposition is that the mistakes and errors in the assessment made the decision to terminate the contract irrational. In principle, that is a bad point and I reject it.

I turn, however, to the consultation. I accept Miss Scott's submission that the decision was not taken before the meeting of 29 July 2010 began. The council clearly had a firm, but in my judgment provisional, view as to the unsuitability of Hesley Village as a continued placement. There is nothing in the assessment, the invitation to the meeting, or what is said at the start of the meeting, that to my mind shows that this meeting was not prepared to consider what the parents might say about the suitability of Hesley Village, their wishes that the claimant remain there, and the reasons for that view. They did listen to those views and the minutes do not suggest that they were simply told that what they were talking about was irrelevant because the decision had been made. There was a discussion at some length about what were the problems with Hesley Village, to which the parents responded. I do not consider that that was mere argument about a decision already taken.

However, it is my judgment that the consultation was inadequate and breached the various requirements to which I have referred. The council knew that the question of the claimant staying at Hesley Village would be an important one and, although the parents may have known that there were some concerns, there was nothing, even in the letter of 20 July, to alert them to quite how far down the road the council's thinking had got in relation to the lack of suitability and the cost of maintaining the placement. They had not been involved in the earlier assessments of their son's needs.

The lack of involvement in the June 2010 assessment document could only have been made good if there had been an opportunity for that document to be thoroughly discussed and those discussions considered before decisions were taken. I consider that if the obligation for the consultation to be undertaken at a time when proposals are still formative, with sufficient reasons for proposals to allow intelligent consideration and response was met, the requirement for adequate time for intelligent consideration and response to be given, was not followed here. The parents did not have sufficient time at that meeting to consider and formulate responses to the proposal that the placement should be ended. There plainly was material that the parents wished to deploy. They deployed it in the letter of 12 August 2010 but by that time, on any view, the decision had been taken. I do not accept the contention of Miss Scott that in fact the council was still keeping an open mind about whether the placement should be terminated after 6 August 2010. In my judgment, it concluded that it had taken the decision and, although, no doubt, it read the letters, the reality is that, the decision having been taken, that issue would have been regarded as closed.

I emphasise that because it was not until, as I understand the course of events, 12 August 2010 that Hesley Village got in contact with the council to explain the significance of their not being there and what they contested about the June 2010 assessment. There is no doubt that their absence from the meeting of 27 July 2010 was regarded as having some significance by the council, in terms of their interest in SW. So the council, for want of ensuring that it had the views of Hesley Village before terminating the contract, made it more difficult for it to re-open its mind to consider what the parents, and later Hesley Village, had to say. Of course Hesley village could be regarded as, to a degree, an interested party in relation to this placement, but the provisions of section 4 of the Mental Capacity Act, and of the guidance under it, make it clear that their views would be valuable. It was also the intention and desire of the council to take on board, or at least to listen to, what Hesley Village had to say, because their attendance at the meeting had been invited and was expected.

I therefore reject Miss Scott's contention that the consultation with the parents in relation to the decision to move SW from Hesley Village was sufficient to be lawful. I do not accept her contention that the deficiencies in relation to Hesley Village should not lead to a quashing. The council is entitled to terminate a placement because of the greater cost, although whether it does so will be a matter for it to consider in the light of what is said about needs and costs and how needs and costs can be met elsewhere. It is also entitled to terminate because of the view it takes of the nature of the place in relation to what it assesses are SW's needs, but one of the purposes of a consultation process is to enable other views than those which it forms on a firm provisional basis to influence it.

I am also concerned that all parties will, if the decision that will be re-taken goes contrary to the parents wishes, be involved in transferring SW to another place. It is important that that be as little fraught as possible, even if the parents view it as a wrong decision. But it is important for them to understand that the points which they wish to make, and which are much the same as Hesley Village's points, have been properly understood and taken into account, even if ultimately rejected.

Accordingly, for those reasons, I quash the decision of 29 July or 6 August, whichever it may be. I do not consider that this is a case in which, if there has been a want of promptness, that should cause me to exercise my discretion against the grant of relief, and Miss Scott, quite properly, did not urge that on me.

MR CRAGG: My Lord, my application is for costs of the claim.

MISS SCOTT: My Lord, I make a submission of no order for costs.

MR JUSTIE OUSELEY: No order for costs is what you are instructed to say? Well, there will be an order for costs.

MR CRAGG: My Lord, I also have to formally ask for a detailed assessment of the claimant's publicly funded costs.

MR JUSTIE OUSELEY: Yes, there will be an order for a detailed assessment of publicly funded costs, and the costs of the action are to be assessed if not agreed.

MR CRAGG: I am grateful.

MR JUSTIE OUSELEY: I am strongly minded to deprive you, if I possibly could, of at least £20 of your costs. I am not joking, it is a complete nuisance. It is not just firms who are publicly funded, it is firms up and down this country, of all types, which produce files that are in fact unworkable. The files get bashed around, both in the solicitor's office where they may be recycled, they get bashed around when they get here, handled by three or four people at three or four different times.

MR CRAGG: My Lord, I totally understand and I share the same feeling when papers arrive in chambers. I have spoken to my solicitor about it over the short adjournment and they do apologise and a lesson has been learned.

MR JUSTIE OUSELEY: Thank you very much.