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R (On the application of LH & MH) v The London Borough of Lambeth [2006] EWHC 1190 (Admin)

This was an application for judicial review on the grounds that the defendants had failed to carry out proper assessments of LH and MH and/or implemented them by not arranging a residential placement for LH. The judge found that the defendant breached its assessment obligation under Part III of the Children Act 1989.

The case centres on the mother's (MH) claims that she could not manage LH at home because of his educational and behavioural difficulties. In his judgment Mr Justice Crane reviews the applicable law, including the Children Act 2004, and sets out the history of the case. However, mindful of Munby J's words in R(P, W, F and G) v Essex that the Council not the court is the primary decision maker, his declaration stopped short of saying that the Local Authority had breached its obligations by refusing to provide residential schooling.

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Case No. CO/9990/2005

Neutral Citation: [2006] EWHC 1190 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice,

Strand, London WC2A 2LL

Handed down in the High Court at Leeds,

25 May 2006

Before:

MR. JUSTICE CRANE

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BETWEEN:

THE QUEEN (on the application of LH and MH) Claimant

and

THE LONDON BOROUGH OF LAMBETH Defendant

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Mr.Nicholas Armstrong (instructed by Fisher Meredith) appeared for the Claimant.

Mr.Jon Holbrook (instructed by Sternberg Reed Taylor and Gill) appeared for the Defendant.

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JUDGMENT

The procedural history

1. LH is now 10, having been born on 27 July 1995. He has autism, moderate learning difficulties and certain physical conditions. He lives with his mother, MH.

2. This is now an application for judicial review of a Core Assessment dated 31 March 2006.

3. The Claim Form was filed on 5 December 2005. Essentially the complaint was that the Defendant local authority had failed to carry out proper assessments of LH and MH and/or to implement them. At the heart of the complaint was an alleged failure to arrange a residential placement for LH.

4. On 7 December Mitting J. considered an application for urgent consideration and ordered an oral hearing. On 16 December, the oral hearing took place before Beatson J. He described the lack of progress as "not very edifying". Mr.Holbrook, Counsel for the Defendant, conceded that there had been delays, but said that "admittedly rather late in the day, the local authority had been pulling out the stops". Beatson J. was told that a meeting was to take place on 10 January 2006 of the Defendant's Special Educational Needs Panel. He ordered certain documents to be provided to the Claimants' solicitors. He granted permission. He ordered that within 14 days of the Claimants' solicitors being notified of the results of the Panel meeting, the Claimants should indicate whether they proposed to continue with their claims and, if so, serve amended grounds and seek permission in respect of any grounds other than those for which they had already been given permission.

5. Unfortunately any pulling out of the stops that might have been briefly evident under the pressure of the proceedings did not continue. The meeting proposed for 10 January did not take place. On 26 January the Defendant's solicitors were still trying to discover whether the meeting had taken place. On 31 January they asserted that the meeting had not taken place and had proved unnecessary because a proposed amended statement of Special Educational Needs had already been sent. Correspondence continued. On 16 February the Claimants' solicitors confirmed that judicial review would be pursued. No amendment was sought.

6. On 17 March, under pressure of a hearing listed for 21 March, the Defendant proposed a consent order by which they would agree to carry out and complete assessments and care plans on both Claimants by 4 p.m. on 31 March 2006, the hearing would be adjourned and the Defendant would pay the Claimants' costs to date. On 21 March that consent order was made by Sullivan J.

7. Fresh assessments were in fact served on 31 March. An amended statement of SEN was issued on 12 April.

8. The adjourned hearing was listed for Monday 8 May 2006. The supplementary skeleton argument of Mr.Armstrong, Counsel for the Claimants, was dated 2 May and apparently served on 4 May. No amendment had been sought, although the supplementary skeleton contained new Grounds at paragraph 7 (i) to (iv). The Defendant's skeleton argument was made available after working hours on 5 May, together with a witness statement.

9. I adopt the remarks of Munby J. in R. (B by her litigation friend MB) v. London Borough of Lambeth [2006] EWHC 639 (Admin). He pointed out forcefully, not for the first time, that the Court requires proper amended grounds where necessary. He also pointed out that this requirement is closely linked to the principle that the Court's function is limited. It is not the Court's function to decide what is best for the child. The Court simply decides whether there has been a failure to fulfil the legal obligations of a local authority.

10. It was in this wholly unsatisfactory state that the matter came before me for a half-day hearing on the afternoon on 8 May. Mr.Holbrook in the event did not strenuously oppose the granting of leave to amend the grounds by adding those set out in the supplementary skeleton. Both Counsel were prepared to complete legal submissions in the time available. I granted leave to amend. Counsel commendably completed their submissions as promised, although listing constraints made it inevitable that I would have to reserve judgment.

11. I did not formally grant permission in respect of those amended grounds, but I now do so. I note that the Defendant has never filed an acknowledgement of Service. However, no objection has been taken to its taking part in the hearings and I formally give permission for the purposes of CPR 54.9 if that is required.

The new grounds

12. The new Grounds can be summarised as follows:

(i) The Defendant is in breach of its obligation (both statutory and pursuant to the consent order) to complete its care plan. The enquiry of Dr.Sarah Thompson, Clinical Psychologist, is outstanding and no proposals for working with the social worker have been made.

(ii) The conclusion that a "parenting" programme or strategy is capable of meeting the needs of LH is irrational, in the light of the background. The views of professionals and assessors have either not been obtained or have been disregarded.

(iii) Even if such a programme or strategy were possible, it would not, in the light of the background, be proper to pursue it unless there is evidence that it might work and unless there was close monitoring.

(iv) The Defendant has failed to comply with its statutory obligations to consider the case in the round, considering together the educational, health and social care interests of LH.

13. The dispute about whether there should be a residential placement or whether LH should continue to live at home remains at the heart of the case.

The law

14. Part III of the Children Act 1989, section 17(1) provides

"It shall be a general duty of every local authority …

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs".

15. A child is to be taken to be "in need" if

"(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority …;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled": section 17(10).

" … a child is disabled if he … suffers from a mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity … ;

"development" means physical, intellectual, emotional, social or behavioural development;": section 17(11).

16. Schedule 2, Part I specifies duties and powers. Paragraph 1 requires a local authority to take reasonable steps to identify the extent to which children in their area are in need. Paragraph 3 (as amended) reads:

"Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under –

(a) the Chronically Sick and Disabled Persons Act 1970;

(b) Part IV of the Education Act 1996 [which deals with Special Educational Needs ("SEN")];

…".

17. Guidance is contained in Framework for the Assessment of Children in Need and their Families (2000), issued by the Department of Health. Paragraph 3.11 imposes timescales, including 35 days for the carrying out of a core assessment. Paragraph 3.13 provides for the parents to be informed in writing of the results of assessments and to be given an opportunity to record disagreements. Paragraph 4.1 indicates that the conclusion of an assessment should result in an analysis of the child's needs and the parenting capacity to respond; in identification of what intervention will be required; and in "a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review". Paragraph 4.34 includes the caveat that plans should not be dependent on resources which are known to be scarce or unavailable. Paragraph 4.36 gives further guidance about the plan and 4.37 states that it is essential that the plan is constructed on the basis of the findings from the assessment and that this plan is reviewed and refined over time.

18. I am referred to the words of Richards J. in R (AB and SB) v. Nottingham CC [2001] EWHC 235 at paragraph 41:

"41. … the whole tenor of the Framework document and of the other guidance … is that the outcome of the child protection path for a child in need should be something equivalent to a core assessment; and if that has not been achieved by the time of deregistration, it should be achieved at that point if the child remains a child in need. There should be a systematic assessment of needs which takes into account the three domains (child's developmental needs, parenting capacity, family and environmental factors) and involves collaboration between all relevant agencies so as to achieve a full understanding of the child in his or her family and community context. It is important, moreover, to be clear about the three-stage process: identification of needs, production of a care plan, and provision of the identified services. It seems to me that where an authority follows a path that does not involve the preparation of a core assessment as such, it must nevertheless adopt a similarly systematic approach with a view to achievement of the same objectives. Failure to do so without good cause will constitute an impermissible departure from the guidance."

He criticised the assessment in the particular case because there was "no clear identification of needs, or what was to be done about them, by whom and by when".

19. The requirements of the 1989 Act are supplemented by the Children Act 2004 ((from 1 April 2005) and associated guidance. A local authority such as the Defendant is a "children's service authority": section 65. Each such authority must make arrangements to promote co-operation between the authority and its relevant partners: section 10(1). Section 10(2) reads:

"The arrangements are to be made with a view to improving the well-being of children in the authority's area so far as relating to –

(a) physical and mental health and emotional well-being;

(b) protection from harm and neglect;

(c) education, training and recreation;

(d) the contribution made by them to society;

(e) social and economic well-being".

20. Guidance issued after the 2004 Act included the promotion of a common assessment framework which had to be introduced by all authorities by April 2006, after preparation prior to that. That framework is designed to promote consistency and inter-agency co-operation and to avoid the invasiveness of multiple assessments.

21. In Part IV of the Education Act 1996 section 323 provides for SEN assessments. By the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001, decisions on whether to carry out an assessment must normally be taken within 6 weeks of a request and must be completed within a further 10 weeks. Section 324 provides for statements of SEN in the light of such an assessment. Section 324(5) provides for an education authority to arrange what is required by the statement. Parents have certain rights of appeal to the Special Educational Needs and Disability Tribunal.

22. The Carers (Recognition and Services) Act 1995 provides in section 1(2) that where a local authority assesses the needs of a disabled child for the purposes of Part II of the Children Act 1989, the carer may request the local authority, before they make any decision as to whether the needs of the disabled child call for the provision of any services, to carry out an assessment of the carer's ability to provide and continue to provide care for the disabled child. If such a request is made, the local authority must carry out such as assessment and take the results into account in making its decision. The duties of the local authority go further as a result of the Carers and Disabled Children Act 2000. Essentially, an assessment that results from a request under the 2000 Act (the criteria for which are similar but not identical to those in the 1995 Act) must lead to consideration by the local authority under section 2 of the needs of the carer in relation to the care provided and whether they should provide services to the carer. Guidance under the 2000 Act requires a clear statement of outcomes following an assessment.

23. The approach of Richards J. in AB was endorsed by Munby J. in R. (J) v. Caerphilly County Borough Council [2005] 2 FLR 860, particularly at paragraphs 44 to 46. And I note the non-statutory guidance in The Common Assessment Framework for children and young people: Practitioners' Guide (2006).

24. However, I must bear in mind the function of this court. I have already referred to R. (B by her litigation friend MB) v. London Borough of Lambeth [2006] EWHC 639 (Admin). In that case Munby J. referred to his own judgment in R. (P, W, F and G) v. Essex County Council [2004] EWHC 2027 (Admin), where he said;

"… the primary decision maker is the … Council and not the court. The court's function in this type of dispute is essentially one of review – review of the … Council's decision, whatever it may be – rather than of primary decision making. It is not the function of the court itself to come to its own assessment of what is in these children's best interests."

There is abundant authority, which Munby J. cited and which I need not repeat, for those propositions.

The history

25. It is accepted in the Core Assessment of 31 March that LH has autism, moderate learning disabilities, chronic long-term constipation, severe epilepsy and asthma. His parents separated in 2001. He lived with his mother, MH, and his brother and sister, but his father continued to see him frequently.

26. A Statement of SEN was signed on 17 March 2004. He had a range of special needs. Although he had significant behavioural difficulties, there had recently been improvement of his behavioural difficulties at home, which MH attributed to his participation in more activities in school and the development of friendships at school.

27. LH attended the Vines School for children with moderate or severe learning difficulties.

28. The Defendant's Social Services Department were alerted to difficulties at home with LH's behaviour by Dr.Peter Loader, Consultant Child and Adolescent Psychiatrist, in a letter dated 17 February 2005. He said that MH was now near the end of her tether and that the situation at home was breaking down. On 21 February the Claimants' solicitors requested an assessment under the Children Act 1989, with a view to the formulation of a full Care plan, and an assessment of MH's needs under the 1995 Act and "the Carers Act 1995" (clearly an intended reference to the 2000 Act). By letter dated 7 March they requested completion of the SEN Annual Review process and urgent consideration to the amendment of the SEN Statement to enable a residential placement at the Sheiling School, a Rudolf Steiner school in Hampshire.

29. On 14 March 2005 a Professionals Meeting was held, organised by Dr.Loader. Present were Dr. Loader; Dr.Sarah Thompson; representatives from Lambeth SEN; the Acting Head Teacher and the Class Teacher from the Vines School; both parents; and Dr.Ann Lorek, Consultant Community Paediatrician. Social Services had been invited and urged to attend, but did not do so. The GP, Dr.Maria Elliott, sent her apologies, but had written to Dr.Loader, saying that she too had seen MH and been told of the difficulties; Dr.Elliott strongly supported the request for a residential school.

30. The parents described LH as demanding. He could be aggressive and his behaviour was becoming more difficult to control. He was big, strong and stubborn. He had many tantrums. He refused to wash and dress himself. His mother felt increasingly unable to cope and was worried that the situation at home would soon break down completely. The teachers reported that although LH needed a lot of support and could be stubborn, he did not show the same behavioural problems at school. The Acting Head thought that the assessment of moderate learning difficulties required reassessment to see whether they should be classified as severe.

31. Several stressed the need for the involvement of Social Services. The consensus of the meeting was that it was crucial that LH had a Core Assessment and that without their help the situation at home would be likely to break down. There would need to be serious consideration of a residential placement, jointly funded by Education and Social Services. Action points were: referral for reassessment by educational psychology; re-referral to Community and Mental Health Services ("CAMHS") Special Needs; and the involvement of Social Services, who were to receive a copy of the minutes.

32. The Claimants' solicitors wrote a detailed letter before action on 15 April, complaining of the failure to carry out the necessary assessments and produce a care plan. On 27 April the Defendant's solicitors stated that a core assessment would be completed within 35 days of 9 May and confirming that any necessary emergency support would be put in place within 7 days. After further correspondence, the Defendant's solicitors on 17 June stated that the core assessment was nearing completion and stated that 10 hours' a week respite care was available from Allied Healthcare. That respite care in fact started in June, but only occurred rarely until October.

33. A Core Assessment was produced in about June or July 2005. The Social Worker noted that MH was doing her best to meet LH's needs, but getting the brunt of his challenging behaviour. She was unable to cope with his behaviour. She said that it was impacting on her physical and mental health. The Social Worker recommended that LH should be educated at a boarding school. MH agreed. LH had been assessed by the Sheiling School and the School had stated that they were able to meet LH's needs. It was recorded that there were no outstanding issues.

34. The Long Term Care Plan, signed by the Social Worker, Cynthia Lewis, repeated the problems recorded in the Core Assessment. It said that LH was receiving support from St.Thomas's Hospital for his chronic constipation, asthma and epilepsy. He had a statement from Lambeth SEN. Respite care of 10 hours a week was being provided by the Children with Disabilities Team. There had been a referral to Contact A Family and Family Link for LH to attend play schemes during the school holidays. The long-term plan recommended by the Social Worker was for LH to be educated at boarding school, where he would be for 38 weeks a year. He would be at home during school holidays and would attend the play schemes.

35. The status of the Care Plan is not wholly clear to me. It is not dated and may have been a recommendation by the Social Worker. [#]

36. After an earlier refusal, in September a reassessment of SEN was put in hand. The Educational Psychologist reported in that process on 7 October, noting the behavioural difficulties at home.

37. After various indications that the matter would be considered earlier, eventually the Defendant's solicitors in a letter dated 4 November said that the Defendants' Social Services and Educational Panel would consider LH's circumstances on 8 November. They said that the Social Services Department were supporting MH's request for a placement at the Sheiling School. The minutes of the meeting on 8 November 2005 reveal the support as lukewarm. The Social Services prospective (sic) was that they would support Education if the request was deemed appropriate, albeit reluctantly. Education was of the view that there was no justifiable "educational" reason for funding a residential placement and would therefore not agree to the request. Education would, however, seek the views of Livity School and reconsider the case in the light of the advice received in order to establish a way forward regarding further placement to support the family. Those minutes were not supplied to the Claimant's solicitors until 8 February 2006.

38. The refusal of funding was notified to the Claimant's solicitors on 15 November.

39. A Carers Assessment was prepared, dated 18 November 2005 and signed by MH, Cynthia Lewis and her Team Manager. It recorded that MH stated that the situation was urgent. LH was demanding and his behaviour challenging. That was having an effect on health, emotionally, mentally and physically. MH wished LH to go to the Sheiling School. She described herself as depressed and at the end of her tether, crying all the time and only just coping. However, it contained no conclusions about what should be done and MH in signing it was consenting to its being passed to the Housing Department, Education Department and the Health Service.

40. A further version of the Carers Assessment, still bearing the date 18 November 2005, was served after the permission hearing. Two paragraphs had been added. The writer, apparently the same Social Worker, referred to the Core Assessment and the recommendation of a residential school. She said she believed that there should be more exploration regarding help with CAMHS at (sic) first and to see what other support could be used to help LH and his family. It was noted that LH was reported not to misbehave by Allied Health Care and Transport and by the school; it was only within the home that LH had challenging behaviour. It concluded that while it might well be that LH might need to attend a residential school in the future, the other options needed to be explored first to see what strategies could be put in place to assist this family.

41. A draft amended SEN Statement was served on 22 December. The proposed meeting on 10 January did not take place, the Defendant's solicitors later giving the explanation that it had become unnecessary because the draft had been served. Correspondence continued and in a letter dated 26 January the Acting SEN Manager wrote in detail, asserting that there was no evidence that the objectives in the proposed Statement could only be achieved by a residential placement. He suggested that "if" there were concerns about LH's domestic situation, those needed to be directed at the Children with Disabilities Department of the Children and Young Peoples Services. He enclosed a signed final Statement of SEN, naming the Vines School, although the signed Statement seems to be dated 31 January.

42. An appeal is proceeding in the Special Educational Needs and Disability Tribunal (SENDIST). The hearing will probably be in July.

The new assessment

43. The Core Assessment dated 31 March 2006, prepared by Cynthia Lewis, records that LH has the same conditions as before. The reason for undertaking the assessment is that L has autism and MH has stated that because she is finding it very difficult to cope with him, particularly his challenging behaviour, this is impacting on her ability to look after him. She would like him to attend the Sheiling School which she feels would meet his educational, health, social and cultural needs, holistically. That school had assessed him and said that they could meet his needs.

44. The Assessment states that Dr.Loader had left the services. Cynthia Lewis had tried to contact Dr.Thompson several times in March 2006 to find out if she was still seeing LH. She contacted the Mary Sheridan Centre on 30 March to find out what services could be offered, being told of a parents' group, "Speech and outreach" and CAMHS. She was intending to write to Dr.Thompson to ascertain whether a referral had been made to CAMHS and how long he would have to wait for help to alleviate his ongoing behavioural difficulties at home.

45. The Assessment refers to The Educational Psychologist's report of October 2005. It notes that a specialist day secondary school will be available from September.

46. As to the difficulties at home, MH stated that LH throws tantrums and can be verbally aggressive and has punched her and sworn at her, although he can be very affectionate to her. She has great difficulty over getting him up, washed and dressed in the morning. Cynthia Lewis was concerned that LH was not getting enough stimulation at home and to meet this need she had referred him to the Lady Allen Playground Centre and to Family Link and Contact a Family. The former have a place on Saturdays and once a week after school. The latter have play schemes available for school holidays. She could help MH to try different methods of getting LH to behave and look after himself, referring for example to the use of a visual timetable by the speech therapist in the past. MH found it difficult to set boundaries and LH had tended to be in control of every situation.

47. Cynthia Lewis concluded that although she recommended boarding school in June 2005, she was influenced too much by MH's claim that she was unable to cope. She now believed that steps can be taken to help MH cope with LH at home. She was concerned that moving LH to boarding school could be detrimental to LH for a number of reasons: in summary, because he would lose much of the contact he has with his mother and other family members and lose his home life, experience many more carers, have to get used to communal living, possibly resent his mother sending him to boarding school and risk becoming institutionalised. She concluded that boarding school should be a last resort for LH.

48. The Assessment in section 7, dealing with the type of service provision that would best address the needs identified, states that support should be provided to help the family in the community. Transport is dealt with. There are further references to the Lady Allen Playground Centre and Family Link. Arrangements had been made with paediatricians for further medical advice if required in connection with LH's epileptic seizures. The Assessment concludes that the suggestions made should be tried first and kept under review.

49. The Claimants' solicitors had expressed various concerns by letter. They included concerns about the Vines' School's ability to deal with epileptic seizures and his chronic bowel problem.

50. The Manager commented that she was in agreement with the Care plan for LH. She firmly believed that they could support LH and his family within the community. She concluded

"The issues with regard to LH's behaviour in the home will be addressed by liaising with Dr.Sarah Thompson from the Mary Sheridan Centre to see what strategies could be put in place for [LH] and support given to [MH] to implement this.

It is clear and evident from reading the core assessment that by [sic] placing [LH] in a residential placement will be detrimental to his wellbeing. We will monitor the home situation closely and review the support package within three months".

51. The Care Plan in effect repeated what had been said in the Assessment: Attendance at the Lady Allen Play Centre (and the existing respite care then stopped); play schemes during school holidays; a letter to Dr.Thompson "to enquire what strategies will be able to help MH manage LH's behaviour. There would be a review of the care package in three months.

52. A Carer's Assessment was also dated 31 March 2006. Essentially it mirrors much of the Core Assessment. MH proposed the Sheiling School for LH, "However, I believe she has taken to the idea of boarding school accommodation out of desperation and without properly thinking through the implications". MH was sleeping in LH's bedroom, because of his seizures and constipation, but was believed to have got the problem out of proportion. The writer said

"[MH's] needs can best be addressed by:

"Helping her to develop a better ways of dealing with [LH]. In particular she needs to recognise the need to impose boundaries on [LH's] behaviour and she needs to be able to encourage him to develop his personal skills such as getting up and getting dressed by himself in the mornings. I will work with [MH] on these issues".

53. It is suggested that MH should liaise with the Vines School to find out what strategies they are using with LH. A letter had been written to Dr.Thompson to ascertain what strategies could be used. And the Lady Allen Playground Centre and Contact a Family and Family Link assistance is again referred to.

The up to date situation

54. On 5 April the Claimants' solicitors wrote, criticising the assessments. Essentially they criticised the Defendants for purporting to meet evidence that MH is unable to cope with LH's behaviour "with what seems to amount to a parenting skills programme". They said that Cynthia Lewis had tried to arrange a meeting with MH on 30 March, but that although MH was prepared to make arrangements, no meeting took place. They raised concerns about LH's seizures and bowel problems.

55. On 6 April MH wrote to Cynthia Lewis a very critical and anguished letter, saying that MH was utterly appalled by the care assessment. She referred to inaccuracies, generalisations and hurtful comments. She described herself as drained and at the end of her tether. She said that she did not believe that the social worker and others in the local authority had LH's best interests at heart and believed that money is the bottom line.

56. A new Statement of SEN was issued on 12 April 2006, dealing with the move to secondary education. The problems of behaviour at home are referred to only obliquely. There is mention of the need for home-school links, with the behaviour management strategies used at school being shared with LH's mother in order to ensure consistency of approach. Placement at the Lansdowne School, a specialist day school, is proposed.

57. In her statement dated 5 May, Cynthia Lewis states that she spoke to Dr.Thompson (I am told that was on 25 April), but has got no further than being told that Dr.Thompson needed MH's permission before she could talk to her. After speaking to the classroom assistant to the Speech Therapist at the Vines School, she learned that the system of visual pictures had been provided to MH (as MH concedes, although she says that she has been unsuccessful). Cynthia Lewis proposed a multi-disciplinary meeting to discuss LH's needs.

58. However, in the light of the tone and content of the letter of 6 April, the team leader has decided that another social worker should take over responsibility for the case.

Submissions and conclusions

59. Mr.Armstrong submits the main problem has been and remains the behaviour of LH at home and MH's ability to cope with that. He submits that the professionals who had agreed last year that these problems existed were not involved in the assessment. The Defendant did no more than write to Dr.Thompson, for example. In the result no clear parenting programme emerged. Since respite arrangements already existed, the assessment and plan did no more than change the respite arrangements. Moreover, the Defendant is still compartmentalising the problems faced by LH and his mother.

60. Mr.Holbrook submits that the assessments sufficiently identify and address the problems faced by LH and his mother. He submits that any claim of irrationality cannot be made out.

61. In his letter dated 17 February 2005, Dr.Loader identified the key problem: that MH was near the end of her tether and that the situation at home was breaking down. That was essentially accepted in the Core Assessment and Care Plan of June 2005. It is still accepted in the Core Assessment and Carer's Assessment of 31 March 2006 MH experiences great difficulty in dealing with LH's behaviour at home. There is no assertion that the difficulty is any less than it was. It is asserted that MH has been failing to impose boundaries. However, if this is correct, it does not diminish the problem and the need to deal with it.

62. The comments of Beatson J. in December 2005 are no less apt now. The preparation of a new Core Assessment and Carer's Assessment seems to have been spurred by the approach of the further hearing on 21 March.

63. The SEN Statement (or its latest revision) is to be considered by the SENDIST in July. The adequacy of that Statement is a matter for that expert tribunal. No direct challenge to it is made in the present proceedings. Indeed, it is clear that it is principally LH's behaviour at home and MH's ability to cope that are said to provide the justification for a residential placement. While the Claimants do contend that there has been a failure to consider the needs of LH as a whole, submissions have not been addressed to me on the relationship between an SEN Statement, which continues to be a statutory requirement and has its own appeal process, and a Core Assessment. I note that the MH's present Grounds of Appeal to the SENDIST include the assertion that the problems of behaviour and management at home should be addressed.

64. The Core Assessment of 31 March 2006 is in my judgment open to criticism for not concentrating on LH's needs, as distinct from the production of the care plan in the light of those needs, as Richards J. pointed out is required. The Care Plan is effectively a summary of what has already been included in the Assessment itself. That confused approach is not necessarily fatal to the Assessment, but it has contributed to a failure to identify clearly the needs to be met in the case of the Carer's Assessment, the needs of MH.

65. The need for LH's behaviour at home to be addressed is clearly spelt out in the Core Assessment and in the Carer's Assessment. So is the need for boundaries to be set and control to be regained by MH. Where the Assessment and Care Plan become deficient is in identifying clearly what is required to meet those needs. Section 8 refers to a package of support. Transport is dealt with in section 7 at some length. So, repeatedly, is the provision at the Lady Allen Playground Centre and Family Link. However, there is a measure of truth in Mr.Armstrong's submission that these arrangements simply change the respite arrangements. There is a passing reference in section 2 to the social worker being able to help MH to try different methods to get LH to behave and look after himself. But that was the extent of any parenting skills programme, apart from the proposals to write to Dr.Thompson and the Speech Therapist on that subject.

66. It is not for the court to decide between a residential placement and support for LH and MH at home. There are rational arguments against a residential placement. However, to conclude that a so-called "package of support", much of which remained to be identified, was to be preferred to a residential placement was seriously flawed and, particularly in the light of a year of fitful attention to the central problem, irrational.

67. I am not concluding that in the light of a clear statement of the needs of LH and MH it would necessarily be irrational to conclude that a fully considered "package of support" is a proper response to the behavioural problems at home, considered with the various other needs of LH. Those other needs include attention to his epilepsy and his bowel problems, about which increased concern has been expressed in recent months.

68. I shall grant a declaration that the Defendant is in breach of its assessment obligations under Part III of the Children Act 1989, as supplemented by the Children Act 2004, the Carers (Recognition and Services) Act 1995 and the Carers and Disabled Children Act 2000. In my draft judgment I invited Counsel's submissions on the wording of the declaration and agreement on the wording if possible. In fact they were not able to agree, but made written and submissions and invited me to finalise the judgment, decide on the form of the order and make an order in relation to costs without further attendance.

69. Mr.Armstrong submitted that I should declare that the Defendant has failed not only in its assessment, but also its planning, obligations. He also invited me to declare that the decision that the package of support was to be preferred to a residential placement was irrational and unlawful. Mr.Holbrook opposed both those submissions.

70. In my view a declaration on the lines I had already indicated in paragraph 68 is both sufficient and appropriate. My reasons are fully set out. The assessment is the crucial matter; planning follows from that and a court should be cautious in expressing views on planning, let alone its implementation. To add the second part of the declaration might imply a view on the relative merits of the package of support and a residential placement, despite what I have said in paragraph 67.

71. The situation is urgent. It has been urgent since February 2005. The Defendant has shown little sign of accepting that except when a court hearing approaches. The Defendant has badly let down LH and his mother. I do not wish my criticisms to be interpreted as endorsing the personal criticisms that MH made of Cynthia Lewis. However, there is clearly an urgent need for a social worker to be identified who will work with MH.

72. I have already explained that I am not in a position to express any view about the SEN Statement. However, I think careful consideration should be given to whether, if a new Core Assessment, Care Plan and Carers' Assessment are to be prepared, that should be done before the hearing of the SENDIST appeal.

Costs

73. Mr.Holbrook invited me to limit the Claimants' recovery of costs to the period up to and including Thursday 4 May.

74. In a letter dated 4 May, the Defendant proposed that the case should be re-allocated to a new social worker, who would prepare "an updated core and carers assessment and attendant care plan by the close of business on 5 June 2006". The Claimants' solicitors in reply on 4 May disputed the proposition that MH could not work with Cynthia Lewis. And they refused to accept the proposals, asserting that the position was still as it had been a year earlier.

75. I do not consider that it is for me to decide whether after MH's letter it was possible for MH to work with Cynthia Lewis. That was in my view very much a matter for the Defendant. However, I consider that the Claimants were entitled to refuse the late proposal. The offer was to "update" the assessment. There was no indication that there would be a full reassessment, as my decision will require. In my view, although the Claimants' solicitors were at fault procedurally in the way I have indicated, they were entitled to obtain the court's judgment. In the event the amendment cannot have added to the costs.

76. I shall therefore not limit the Claimants' costs.