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Section 17 assessments and the Children Act 2004

Nick Armstrong of Tooks Chambers and Eleanor Wright of Fisher Meredith analyse the impact that the recent case of LH & MH v Lambeth has on assessments under s17 of the Children Act 1989 in the light of the Children Act 2004.

 

Nick Armstrong of Tooks Chambers & Eleanor Wright of Fisher Meredith

The recent decision of LH & MH v London Borough of Lambeth [2006] EWHC 1190 was concerned with local authorities' assessment and planning obligations under s 17 of the Children Act 1989. It is also thought to have been the first case to review the cooperation duties under s 10 of the Children Act 2004 and the associated guidance. In fact, the court said almost nothing about the 2004 Act beyond flagging it as relevant and declaring it breached. The main points of interest relate to what was said about the detail required by s 17 assessments, and what is still to play for with regard to the 2004 Act.

The facts of LH were quite extreme. The case concerned a 10 year old boy with autism and certain other learning difficulties and physical conditions. His behaviour at home was increasingly violent, with the result that his mother, the second claimant, was finding it very difficult to cope. From February 2005 professionals involved with his care had been trying to engage the attention of social services but with very little result. Those professionals recommended a residential school jointly funded by education and social services. In June or July 2005 a core assessment was completed (although not provided to LH or his mother until October) which agreed. A parallel carers' assessment said the same. By November, however, no action on that recommendation had been taken and LH's solicitors were struggling to find out why. The minutes of the planning meeting remained undisclosed. Proceedings were issued in December 2005.

At an oral permission hearing on 16 December Beatson J castigated the authority for its delays and "rather unedifying" correspondence. The authority agreed to "pull out all the stops". In the event, further delays followed with a promised meeting in January cancelled without explanation. Ultimately, five days ahead of trial in March 2006 the authority proposed entirely fresh assessments by 31 March which resulted in the matter coming out of the list by consent.

Those assessments, when served, abandoned the earlier recommendation for residential schooling. The social worker now thought that (what was said by the solicitors to amount to) a parenting skills programme and an adjustment to the respite arrangements would suffice. As LH's solicitors pointed out, however, significant work on parenting skills and behavioural management had already been completed and it was far from clear that anything else was available. Indeed, the only attempt by the social worker to find out had gone unanswered. There was therefore no real plan at all.

Accordingly the claim was maintained and came on before Crane J on 8 May. Reformulated grounds attacked the absence of a completed care plan, the rationality of what plan there was, and what was said to be a failure to comply with all the relevant requirements including the Children Act 2004. It was said that social services and the local education authority – which had carried out a special educational needs assessment alongside – had unlawfully compartmentalised their thinking.

Crane J almost entirely agreed. Although declining to convert all of his findings into formal declarations, he declared the authority to be in breach of its obligations under s 17 of the 1989 Act as supplemented by the 2004 Act, and under the Carers (Recognition and Services) Act 1995 and the Carers and Disabled Children Act 2000. He found that the authority had "badly let down LH and his mother". The assessment, he said, did not concentrate on LH's needs as distinct from the care plan in the light of those needs, and the conclusion "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."

The following points arise:

1. LH shows that the courts are prepared to engage in reasonably close analysis of assessments and care plans in this area. This is of course fact dependant and the extensive failings in LH helped. Nevertheless, Crane J's willingness to describe the outcome of an assessment as irrational is significant. It came notwithstanding the authority's heavy reliance on decisions such as R (B) v Lambeth [2006] EWHC 639, where Munby J adopted his earlier decision of R (P) v Essex [2004] EWHC 2027. That decision underlines the difference between judicial review and (for example) "best interests" litigation in the family division. At [33]: "The Administrative Court exists to adjudicate upon specific challenges to discrete decisions. It does not exist to monitor and regulate the performance of public authorities".

2. To this extent, therefore, LH restores earlier decisions such as R (AB & SB) v Nottingham [2001] EWHC 235 which addressed the Framework for the Assessment of Children in Need and their Families and sets the public law boundaries for court intervention in this area: what is required following an assessment is a detailed operational plan, not simply vague aspirations but what is to be done, by whom and by when. In the absence of that, judicial review will lie.

3. It is of note that this is consistent also with other recent authorities such as R (J) v Caerphilly [2005] EWHC 586, another decision of Munby J, this time on the content of pathway plans for children leaving care. At para [46]:

"Sometimes a very high level of detail will be essential. But whatever the level of detail which the individual case may call for, any care plan worth its name ought to set out the operational objectives with sufficient detail – including detail of the 'how, who, what and when' – to enable the care plan itself to be used as a means of checking whether or not those objectives are being met. Nothing less is called for in a pathway plan. Indeed, the Regulations, as we have seen, mandate a high level of detail."

See also now R (M) v Hammersmith & Fulham [2006] EWCA Civ 917 where the Court of Appeal expressly aligned itself with Munby J's remarks (at [75]).

4. All this must now be read with the Children Act 2004. Although in the end in LH Crane J did not need a detailed analysis of the requirements of the cooperation duty in order to reach his conclusion, in other cases the Act may well prove the route to establishing a public law error. The effect of the Act and the associated guidance is to require joined up thinking. This means authorities working as Children Services Authorities and reaching decisions together and not, for example, social workers simply ringing their education counterparts and asking what decision has already been reached. In some cases it may require a common assessment conducted under the Common Assessment Framework. The failure to do either may be actionable.

5. It should also be read with other obligations. Another issue arising in J v Caerphilly was the way in which a personal adviser had been appointed. Similar problems may arise with regard to the way in which Independent Reporting Officers discharge their functions. IROs were introduced by the Review of Children's Cases (Amendment) (England) Regulations 2004 (SI 2004/1419) in September 2004 – so just ahead of the 2004 Act - and are an obvious way of facilitating cooperation. Our impression, however, is that they are not fulfilling their promise. J also expressed significant concerns about the need to involve children in the assessment process. Section 53 of the 2004 Act imposes the same requirement into the section 17 process.

It is likely, therefore, that LH is simply the first case of many to try using the new framework. Ultimately, because of what is at stake, the courts are interested in the quality of the decision making in this area, and are likely to take notice if structural inertia is impeding it. As Wall LJ said in the special educational needs context (W v Leeds [2005] EWCA Civ 988 at [75]):

"Such a child's special educational needs simply cannot be viewed in isolation; nor can his s 17 needs; nor, for that matter, can his need for services provided by the health authority and CAMHS. A holistic approach is necessary, and inter-agency co-operation essential, particularly since two of the bodies with statutory responsibilities for C (the LEA and social services department) are part of the same local authority."

The challenge for those representing children will be to identify the most appropriate public law method of achieving this. There are an increasing number of possibilities.

Nick Armstrong is a barrister at Tooks Chambers, London. Eleanor Wright is a partner and the joint head of education law at Fisher Meredith. They appeared for LH and MH