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Home > Judgments > 2006 archive

R (On the application of M) v Suffolk County Council [2006] EWHC 2366 (Admin)

This is an application for judicial review of a local authority's decision to stop direct payments to the claimant to help provide support for a child with Down's Syndrome. The grounds of that decision were that the payments were being used to place the child in a specialist boarding school and that under regulation 7(3) of the Children Act the local authority was precluded from paying for residential accommodation under these regulations. The application succeeded.

In this judgment Charles J reviews the statutory provisions relating to the issues and concludes that the local authority was incorrect in deciding that they could not lawfully make the payments when it was common ground that the child had needs.

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CO/3683/2004

Neutral Citation Number: [2006] EWHC 2366 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Tuesday, 25th July 2006

B E F O R E:

MR JUSTICE CHARLES

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THE QUEEN ON THE APPLICATION OF M

(CLAIMANT)

-v-

SUFFOLK COUNTY COUNCIL

(DEFENDANT)

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Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

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MR JOHN FRIEL (instructed by Messrs Ridley & Hall Solicitors) appeared on behalf of the CLAIMANT

MS CAROLINE BUDDEN (instructed by Suffolk County Council Head of Legal Services) appeared on behalf of the DEFENDANT

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

1. MR JUSTICE CHARLES: I have before me a challenge to a decision of the Suffolk County Council brought by the litigation friend of a young lady who is nearly 17. She suffers from Down's Syndrome, with severe learning difficulties, speech impediment and behavioural difficulties. She has poor verbal communication skills. She does not, as I understand it, fit into any particular category of a child with Down's Syndrome, although she suffers from it. It is clear, from the assessments that have been made of her that I have seen, that she does have behavioural difficulties. As I understand it, she has also suffered from a long history of illness and infection and she had an operation in April 2000 to repair a hole in her heart.

2. The proceedings were the subject of an oral permission hearing in which Black J gave permission to proceed on one of the points that were then in issue. That was a point as to the application of regulation 7 of the Community Care Services for Carers and Children's Services (Direct Payments) (England) Regulations 2003 (SI 2003/762). Naturally, I shall return to that. I should, however, give a very brief account of the background to set the issues that arise in context.

3. When the child and her family first came to the attention of the Suffolk County Council, as I understand it, they had recently come to this country from Germany. The father is German. The parents were not married but they have another child and, as I understand it, a fairly long-standing relationship. At the outset of these proceedings, it was the child's mother who was acting as her litigation friend. There were proceedings in the county court relating to residence and contact. The upshot of them was that a residence order was made in favour of the child's father and a contact order made in respect of contact between the child and her mother. As I understand it, the social worker, who has been involved in respect of the matters I am concerned with, was also involved in the welfare decisions made by the County Court.

4. Pursuant to the relevant statutory provision, the local authority have carried out assessments of the child and those assessments demonstrate that she has needs which fall within section 17 of the Children Act. There have also been assessments relating to the child's education. As I understand it, there have been appeals to the relevant statutory body relating to those assessments. The upshot of the decisions of the people responsible for making education decisions, that tribunal and the assessment carried out by the local authority, if I can call so describe it, was that the package that was in place was that the child should go to the local school and she would receive assistance at home, as indeed would her father, in respect of a range of items which I shall refer to as care items. The hours were assessed at, in the end, 24 hours' assistance in the home. For example, the child needs assistance in respect of part of her dressing and those sorts of things. She also would not be able to go out on her own. Her father, who is now her sole carer, in the sense that the mother is no longer with the family at home, works.

5. The present dispute was brought to a head when the local authority were approached by a school called the Sheiling School, inviting the social worker to take part in an assessment. This was the first time that the social worker had heard that the father was not complying with the assessment and the assessed plan, if I can call it that, which involved the child attending the local school and getting payments to provide for care directed to meeting the child's needs when she was not in school; thus when she was returning home. The father by that stage had signed, as he would have been required to, a direct payment agreement in which he had agreed to use the direct payments to purchase only the services detailed in the child's current assessment. His stance, in correspondence, was that those payments should be used to meet a proportion of the fees charged by the Sheiling School. The reaction of the local authority, through its social worker was, to my mind, an understandable one. It was that, as that proposal was not in accordance with the child's current assessment, the payments would stop whilst she was at the Sheiling school during term time but the payments would continue during the holidays. Also, payments in respect, for example, of holidays would continue to be made in accordance with the plan. So the local authority's position was that, in effect, there was a stay or moratorium on the direct payments during term time. As that debate and dispute has developed, looked at through the eyes of lawyers, the local authority have raised the point that, as a matter of construction, they are precluded by regulation 7 of the regulations I have referred to from making any payment in respect of the fees of the Sheiling school.

6. The position adopted by the applicant is that the fees that are paid to the school, albeit charged generally without any allocation or attribution to their constituent parts, can be effectively and appropriately divided into essentially three elements, namely: education; secondly, social care and practical care: and, thirdly, basic residence. Reading from a letter of 14th September 2005, written to the local authority, I quote:

"Placement at the Sheiling School has been made because [the child's] father is now a single parent. [The child's] mother has no involvement in [the child's] care. [The father] cannot work and support [the child] adequately with the amount of support given by direct payments under the care plan. [The child's] needs are not being met and [the father] is unable to cope with the amount of support provided in the care plan.

Placement at a residential school, such as The Sheiling School, has three elements:-

(a) Education. Direct payments are not relevant to this provision, [the father] and/or his family are funding educational provision.

(b) Social care and practical care. At the Sheiling School within the waking day, and outside of education, both social care and practical care is delivered and will be delivered to [the child]. It is for this that the direct payments are to be utilised.

(c) Basic Residence. This is to be paid directly as part of the school fee by [the father] and/or his family."

7. It has been pointed out to me, and I accept, that the factual allegations asserted at the beginning of that quotation are not accepted. The local authority have different views from the father as to what would best promote the welfare of the child. As I understand it, the views of the local authority, as one would expect, are reflected in the assessments that the local authority has made in respect of the child's needs. For example, the local authority do not accept that social care and practical care cannot be provided within the area of the child's home whilst she is not at school. That is not a dispute which I can deal with today. I record, however, that there is a dispute about that. I should also record that, over the period of these proceedings, I have been told by counsel for the local authority, and I accept, that the local authority had been making payments under the assessment outside term time in accordance with the assessment and that they have been making payments in the same amount as would have been paid under the assessment during term time to the father, so that the position of the child is not prejudiced in the sense of being prejudiced by funds being withheld, if she were entitled to them, as a consequence of the dispute. The local authority, unsurprisingly, given their position, have not been making those payments as direct payments because they assert that to do so would be unlawful. They have, however, been making them pursuant to their more general power under section 17 of the Children Act and they are satisfied that that is a lawful means of making the payments in the interim period pending resolution of the dispute. So in terms of money at the moment, the family have been receiving essentially the money that they have claimed in the correspondence.

8. With that backdrop, I now turn to the statutory provisions, which seem to me to be of primary relevance. First, I was referred to the Health and Social Care Act of 2001, section 57:

"57.-(1) Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person's consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in paragraph (a) or (b) of that subsection.

(2) A person falls within this subsection if a local authority ("the responsible authority") have decided-

(a) under section 47 of the 1990 Act (assessment by local authorities of needs for community care services) that his needs call for the provision by them of a particular community care service (within the meaning of section 46 of that Act), or

(b) under section 2(1) of the Carers and Disabled Children Act 2000 (c. 16) (services for carers) to provide him with a particular service under that Act.

(3) Regulations under this section may, in particular, make provision-

(a) specifying circumstances in which the responsible authority are not required or authorised to make any payments under the regulations to a person, whether those circumstances relate to the person in question or to the particular service mentioned in paragraph (a) or (b) of subsection (2);

(b) for any payments required or authorised by the regulations to be made to a person by the responsible authority ("direct payments") to be made to that person ("the payee") as gross payments or alternatively as net payments;

(c) for the responsible authority to make for the purposes of subsection (4) or (5) such determination as to-

(i) the payee's means, and

(ii) the amount (if any) which it would be reasonably practicable for him to pay to the authority by way of reimbursement or contribution

as may be prescribed;

(d) as to the conditions falling to be complied with by the payee which must or may be imposed by the responsible authority in relation to the direct payments (and any conditions which may not be so imposed);

(e) specifying circumstances in which the responsible authority-

(i) may or must terminate the making of direct payments.

(ii) may require repayment (whether by the payee or otherwise) of the whole or part of the direct payments;

(f) for any sum falling to be paid or repaid to the responsible authority by virtue of any condition or other requirement imposed in pursuance of the regulations to be recoverable as a debt due to the authority;

(g) displacing functions or obligations of the responsible authority with respect to the provision of the service mentioned in subsection (2)(a) or (b) only to such extent, and subject to such conditions, as may be prescribed;

(h) authorising direct payments to be made to any prescribed person on behalf of the payee.

(4) For the purposes of subsection (3)(b) "gross payments" means payments-

(a) which are made at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned; but

(b) which may be made subject to the condition that the payee pays to the responsible authority, by way of reimbursement, an amount or amounts determined under the regulations.

(5) For the purposes of subsection (3)(b) "net payments" means payments-

(a) which are made on the basis that the payee will himself pay an amount or amounts determined under the regulations by way of contribution towards the cost of securing the provision of the service concerned; and

(b) which are accordingly made at such a rate below that mentioned in subsection (4)(a) as reflects any such contribution by the payee.

(6) Regulations under this section shall provide that, where direct payments are made in respect of a service which, apart from the regulations, would be provided under section 117 of the Mental Health Act 1983 (c. 20) (after-care)-

(a) the payments shall be made at the rate mentioned in subsection (4)(a); and

(b) subsection (4)(b) shall not apply.

(7) Regulations made for the purposes of subsection (3)(a) may provide that direct payments shall not be made in respect of the provision of residential accommodation for any person for a period in excess of a prescribed period.

(8) In this section 'prescribed' means specified in or determined in accordance with regulations under this section."

9. I would draw particular attention to subsections (1), (3) and (7). That section, when first enacted, did not apply to children. Section 17A of the Children Act of 1989 is what introduces the concept of direct payments to children and those who care for children. It provides:

"(1) The Secretary of State may by regulations make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within subsection (2) to make, with that person's consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in that subsection.

(2) a person falls within this subsection if he is -

(a) a person with parental responsibility for a disabled child.

(b) a disabled person with parental responsibility for a child, or

(c) a disabled child aged 16 or 17.

and a local authority ('the responsible authority') have decided for the purposes of section 17 that the child's needs (or, if he is such a disabled child, his needs) call for the provision by them of a service in exercise of functions conferred on them under that section.

(3) Subsections (3) to (5) and (7) of section 57 of the 2001 Act shall apply, with any necessary modifications, in relation to regulations under this section as they apply in relation to regulations under that section.

(4) Regulations under this section shall provide that, where payments are made under the regulations to a person falling with subsection (5) -

(a) the payments shall be made at the rate mentioned in subsection (4)(a) of section 57 of the 2001 Act (as applied by subsection (3)); and

(b) subsection (4)(b) of that section shall not apply.

(5) A person falls within this subsection if he is -

(a) a person falling within subsection (2)(a) or (b) and the child in question is aged 16 or 17, or

(b) a person who is in receipt of income support,... under Part 7 of the Social Security Contributions and Benefits Act 1992 [of any element of child tax credit other than the family element, of working tax credit] or of an income-based jobseeker's allowance.

(6) In this section -

'the 2001 Act' means the Health and Social Care Act 2001;

'disabled' in relation to an adult has the same meaning as that given by section 17(11) in relation to a child;

'prescribed' means specified in or determined in accordance with regulations under this section (and has the same meaning in the provisions of the 2001 Act mentioned in subsection (3) as they apply by virtue of that subsection).]"

10. As will be seen from subsection (1) of section 17A, it essentially mirrors section 57. Subsection (3) introduces and applies section (3), (5) and (7) of section 57 of the 2001 Act and subsection (2) is the subsection which identifies the persons who fall within the section. It relates to persons who the local authority have decided, for the purposes of section 17, call for the provision by them of a service in exercise of functions conferred on them under section 17 Children Act. So that goes back to the needs assessed by the local authority.

11. I then turn to the regulations themselves. I pause to comment on what seems to me, at the moment, to be an odd point in the regulations not solved by counsel before me. It is that in regulation 1, "direct payment" is given the meaning in regulation 3 but, when you look at regulation 3, it does not seem to do that. Important regulations are regulation 2(1), 3, 4, 6(4) and (5) and then, most importantly, 7. As will be seen from the citation of those regulations, which should be set out at this point in the judgment, the central provision is 7(3), relating to the provision of residential accommodation. The regulations provide:

"2.- (1) For the purposes of section 57(1) of the 2001 Act a person is of a prescribed description if -

(a) he is a person who appears to the responsible authority to be capable of managing a direct payment by himself or with such assistance as may be available to him; and

(b) he is not a person to whom paragraph (2) applies..."

"3. For the purposes of section 17A(1) of the 1989 Act, a person is of a prescribed description if -

(a) he is a person who appears to the responsible authority to be capable of managing a direct payment by himself or with such assistance as may be available to him; and

(b) he is not a person to whom paragraph (2) of regulation 2 applies.

4.- (1) If the conditions in paragraph (3) are satisfied, a responsible authority must make in respect of a prescribed person who falls within subsection (2) of section 57 of the 2001 Act or subsection (2) of 17A of the 1989 Act such payments (direct payments) as are determined in accordance with regulation 5 in respect of his securing the provision of a relevant service.

(2) In this regulation a relevant service means -

(a) a community care service within the meaning of section 46 of the National Health Service and Community Care Act 1990[17]; or

(b) a service under section 2 of the Carers and Disabled Children Act 2000[18]; or

(c) a service which they may provide in exercise of functions under section 17 of the 1989 Act (provision of services for children in need, their families and others.

(3) The conditions referred to in paragraph (1) are that -

(a) the responsible authority are satisfied that the person's needs for the relevant service can be met by securing the provision of it by means of a direct payment; and

(b) in the case of a relevant service mentioned in paragraph (2)(c), the responsible authority are satisfied that the welfare of the child in respect of whom the service is needed will be safeguarded and promoted by securing the provision of it by the means of the direct payment..."

"6(4) A responsible authority may make a direct payment subject to such other conditions (if any) as they think fit.

(5) The conditions referred to in paragraph (4) may, in particular, require that the payee -

(a) shall not secure the relevant service from a particular person; and

(b) shall provide such information to the responsible authority as they consider necessary in connection with the direct payment.

7.- (1) Subject to paragraph (2), a direct payment may not be made in respect of a person who falls within regulation 2(1) for the provision to him of residential accommodation of a period in excess of 4 weeks in any period of 12 months.

(2) In calculating the period of 4 weeks mentioned in paragraph (1) a period in residential accommodation of less than 4 weeks shall be added to any succeeding period in residential accommodation where the two periods are separated by a period of less than 4 weeks but not otherwise.

(3) A direct payment may not be made in respect a person who falls within regulation 3 for the provision of residential accommodation -

(a) for any single period in excess of 4 weeks, and

(b) for any period in excess of 120 days in any period of 12 months."

12. I was taken in the course of argument to other statutory provisions, namely section 21 of the National Assistance Act 1948 and to provisions of the Education Act of 1996, in particular sections 4, 9, 348 and 463. I do not propose to set those sections out. I was also taken to Direct Payment Guidance (the Guidance), which is a document produced and published by the Department of Health and, in particular, I was taken to paragraph 7, 13, 14 and 76 of that guidance:

"7. Direct payments are monetary payments by local councils direct to individuals, who have been assessed as needing certain services, including those that find themselves caring for others. Direct payments help people who want to manage their own support to improve their quality of life. They promote independence, choice and inclusion by enabling people to purchase the assistance or services that the council would otherwise provide in order to live in their own homes, be fully involved in family and community life, and to engage in work, education and leisure."

"13. The Government's aim, in promoting direct payments, is to increase individuals' independence and choice by giving them control over the way the services they are assessed as needing are delivered. The local council makes the payment or payments instead of providing or arranging for the provision of the services. The person then uses the payment to secure for him or herself the relevant services. In the case of disabled children, a person with parental responsibility for a disabled child, which is frequently the parent, secures services to meet the needs of their child or the child's family."

14. As a general principle, local councils should aim to leave choice in the hands of the individual by allowing people to address their own needs as they consider best, whilst satisfying themselves that the agreed outcomes are being achieved. Where a child is assessed as needing services under section 17 of the 1989 Act, the local council also has to be satisfied that the direct payment will 'safeguard and promote' the welfare of the child for whom the service is needed."

"17. There are some persons to whom the duty to make direct payments does not apply. Examples of the relatively few exceptions to this are people listed in Annex C. Broadly, these are certain people whose liberty to arrange their care is restricted by certain mental health or criminal justice legislation. People in these groups are required to receive specific services. A local council retains its existing functions as respects the provision of services even though it is not under a duty to make a direct payment to a person in this group."

In addition, reading on, I looked at paragraph 82, which relates to the calculation of the amount of a direct payment:

"82. It is up to the council to decide on the amount of a direct payment. However, the direct payments legislation provides that it must be equivalent to the council's estimate of the reasonable cost of securing the provision of the service concerned, subject to any sum paid by the recipient. This means that the direct payment should be sufficient to enable the recipient lawfully to secure a service of a standard that the council considers is reasonable to fulfil the needs for the service to which the payment relates. There is no limit on the maximum or minimum amount of a direct payment either in the amount of care it is intended to purchase or on the value of the direct payment."

I confess, I do not know what paragraphs 83 and thereafter contain because I did not have a copy.

13. The point that falls for decision by me is the question whether regulation 7(3) renders it unlawful for the local authority to make any payment in and towards the fees of the Sheiling School on the basis that that would be a direct payment for the provision of residential accommodation.

14. Residential accommodation is a phrase containing ordinary English words, which was common ground -- and in my judgment correctly common ground -- between the parties and needs to be given its ordinary meaning in its context. In a different context, Hale LJ, as she then was, referred to the words residential accommodation as a good example of language that is always speaking and can change its meaning in the light of changing social conditions. As is not uncommon when dealing with this sort of issue of statutory construction, namely what is the extent of the meaning and effect of ordinary English words used in a statutory context, the answer to the question is not necessarily easy to identify. The question seems a simple one when posed but the answer is not necessarily straightforward.

15. In the context of this case it seems to me that the issue is one of categorisation of the relevant provision. What the regulation refers to is a provision and, in truth, it seems to me what that refers to is the payment of sums of money.

16. Standing back and looking at the regulation in isolation, it seems to me that its structure and the purpose of regulation 7 is that, when someone has needs, and there is an assessment made that those needs should be met by the provision of residential accommodation, the time period over which that residential accommodation can be provided by direct payment is limited and capped by the period set in regulation 7. Parts of the guidance and other material I was referred to, particularly by the local authority, indicated and asserted that the purpose of regulation 7 is to avoid inappropriate use of residential accommodation. In that context I was referred to the background to the introduction of direct payments, which, as I understand it, flowed from a stance taken initially in Canada that people should be given the ability to choose themselves to contract for help and assistance that was needed because of their needs or the needs of their children.

17. Against that background, and looking at the Guidance, the local authority go on to say that the backdrop to regulation 7 and its underlying purpose was to enable people whilst they remain in their own home to have a choice to access the services needed to meet the relevant needs as assessed by the local authority rather than to have the local authority provide them itself (that, I accept, would be normal). I was particularly referred this time by the Claimant to paragraphs 13 and 14 of the Guidance, which emphasise the element of choice, which is also to be found in paragraph 7.

18. It seems to me that the interpretation of regulation 7, as I have already described it, namely that it places time limits on the period for which an assessed need for residential accommodation is provided, so that it is capped, meets the purpose as identified by the local authority. In a wider context, it seems to me that what was being looked at was that this set of provisions, that is direct payments, were not to be ones that were to be used to provide long term residential accommodation for adults or children.

19. The other thread I take from the Guidance is that it was also designed to give people choice. The backdrop of that, it seems to me, is choice as to the way in which identified and assessed needs were to be met.

20. Returning to the arguments between the parties and the categorisation of whether the local authority would be in breach of regulation 7, if they were to make a payment in respect of an identified part of the fees charged by the school. I pause to say that it may be, if I find against the local authority on their point of construction of the regulation, that issues will arise as to what the quantification of any direct payment would be. In that context, in my view, paragraph 82 of the Guidance is relevant because it may be that the local authority would have different arguments as to why they should not be making any payment if it is not to be applied in what they assess would be the manner which best promotes the welfare of the child. The alternative argument, from paragraph 82, is that the local authority would assess what they would pay if the parent(s) were to adopt their plan as to what the best course would be to promote the welfare of the child, but would acknowledge that the parent(s), provided that they apply the money in meeting the relevant need, can spend it as they see fit. In that context, the local authority would assess the number of hours that help would be provided in the home; a figure would be the given to that and the parent(s) would be able to pay that towards the care element of the fee paid to the Sheiling school.

21. With that backdrop, it seems to me that this case comes down to, as I have said, a point of categorisation. One argument not advanced by either side -- in my view, correctly -- would be to say that the correct categorisation of the fees paid to the Sheiling School are that they are school fees. On that categorisation, the provision of those fees would not be for residential accommodation but would be for education or for schooling. An alternative is the categorisation advanced by the local authority, which is that, as it is a boarding school and is providing residential accommodation, any payment in and towards those fees falls within the description "a provision of residential accommodation". In that context, correctly, the local authority have recognised that a large proportion of the fees would go to provision of education but they say that, for the purposes of regulation 7, and having regard to the background material they rely on, if one did not interpret the purpose of the payment in this way, what they would be doing would be making a payment by way of direct payment for the provision of residential accommodation over the period provided for and that would fly in the face of what they say the underlying purpose, or one of the underlying purposes, of the regulations is namely to provide direct payments to assist people who wish to remain at home or who wish their children to remain at home.

22. A third interpretation, and in my judgment the correct interpretation, is that, in the context of this case, you ask yourself what part of the fees are fairly categorised as a provision of residential accommodation. An argument would be that it is not practical to so identify the fees but it seems to me that that is incorrect because the school has been able to deal with that, on an admittedly rough basis. Second, it seems to me in the context of this argument, which is the one advanced on behalf of the Claimant, that, in truth, if you stand back and ask yourself what is being provided in return for the fees that are paid, a reasonable categorisation is the three categorisations that I have referred to, namely (a) education, (b) social care and practical care, and (c) basic residence. On this argument, the Claimant, in my view correctly, accepts that certainly an element of the fees is in respect of the provision of residential accommodation. What is argued is that there is no need to categorise the totality of the fees in that way, just as the local authority, I think, acknowledged that a large proportion relates to education and therefore could be educational and accommodation.

23. It seems to me that it is perfectly fair to say that a significant proportion of the overall fees relate to social care and practical care and, therefore, that proportion is in respect of the provision of that and not the provision of residential accommodation. Further, it seems to me that this approach and conclusion identifies one of the purposes of the relevant statutory provisions supported by the regulations, which is that, when a need has been identified, and a child is assessed as requiring assistance to meet that need, then the parent(s) should be given an choice as to how that need should be provided.

24. I take the example of a child who is at a day school and is living at home and there are choices available as to how the needs should be provided for whilst not at school. It seems to me that one of the underlying purposes of the statutory scheme is to enable the parent(s) to make the relevant choice. If, within the context of other regulations and statutory provision, that choice is lawfully denied to a parent because, for example, a local authority is lawfully entitled to say: "we will only make payments in accordance with what we assess will best promote the needs of the child", that, it seems to me, is a different issue. But, looking at the language of regulation 7, and the competing purposes that underlie it, namely choice as to how to provide for the needs of a child against a backdrop where the norm would be that the child remains at home, I see no reason why, on the facts of this case, a fair and proper apportionment of the fees in respect of the Sheiling School cannot be made, so that what is prohibited by the regulation is the payment of the proportion of those fees which relate to the provision of residential accommodation. But what is not prohibited by the regulation is the proportions thereof which relate to education and which relate to social care and practical care. So far as the educational element is concerned, as I understand the position, it is common ground that they would not fall within this statutory scheme because they are provided for in another one. I also note that, in the statutory provisions relating to education that I was referred to, it would be open to the education authority if that was in fact their decision on education to pay all the fees of the Sheiling school and therefore to meet the fees relating to board and lodging. On that statutory scheme, the categorisation may be a division between board and lodging and education. If that categorisation was to be carried over to this statutory scheme, the social care and practical care element would it seems to me be included within the educational element and therefore would not be excluded by regulation 7(3).

25. Accordingly, in my judgment, the local authority are incorrect in their interpretation of the regulation that it, as a stand-alone provision, precludes them from lawfully making direct payments at a time when it is common ground that the child has needs.

26. The local authority consider that those needs can be and should be appropriately met by assistance being provided in the home, but the parents have taken the view that those needs can and should be met during term time whilst she is away at a boarding school. Sadly, because of this difference my conclusion on the construction and application of regulation 7 does not, as I understand it, mean that there will not be further arguments between these parties as to whether or not payments can be made, that are referable to the social care and practical care that is being provided to this child, and which she clearly needs during term time.

27. MR FRIEL: My Lord, there is just the matter of the appropriate relief, firstly. In the claim form, we sought an order that the defendant reconsider the decision of 23/8/2005 in one of the letters, asserting that the authority would not pay for residential provision at the Sheiling School. The first decision was that of the social worker herself, which has been referred to. I do not know if my learned friend has any observations, that particular letter was chosen as being the most appropriate letter as one out of a series, but it is obviously not the only one reiterating the decision.

28. MR JUSTICE CHARLES: Well, I am not sure that that is the correct way of putting it. I mean, if that is not --

29. MR FRIEL: The other way to do it is to deal with it in a declaration, my Lord.

30. MR JUSTICE CHARLES: Well, I was thinking more or less that they reconsider a decision as to whether or not they will make any direct payments during term time in the context of the way it -- social care and practical care, because --

31. MR FRIEL: My Lord --

32. MR JUSTICE CHARLES: The way the letter is put, it seems to follow that they would have to make payments of a proportion of the school fees and I think you agree with me that that is necessarily where one gets to under the other regulation.

33. MR FRIEL: That is right, my Lord, I do. My Lord, a declaration in those terms would be fine.

34. MR JUSTICE CHARLES: I do not think it would be a declaration. I think it would be -- I can set aside their decision to refuse.

35. MR FRIEL: Yes, that would be enough.

36. MR JUSTICE CHARLES: But on the other hand, on that they were correct, were they not, on one view? Let us see where we get to. I am not sure they will agree to reconsider the position as they would be accustomed.

37. MR FRIEL: I am not sure.

38. MR JUSTICE CHARLES: Can you help me as to what the position would be?

39. MS BUDDEN: May I just take instructions on that, my Lord?

40. MR JUSTICE CHARLES: Yes certainly, but I think it could be a declaration that they are not precluded by regulation 7 from making direct payments in connection with the social and practical care of the child during term time by reason of the fact that she is at a boarding school and then I think that, subject to the Court of Appeal, the local authority would wish to reconsider their decision and, if they say they are going to reconsider the decision, that I think is good enough, so far as I am concerned.

41. MR FRIEL: My Lord, it is good enough so far as I am concerned. It would be improper for me to argue that that declaration is appropriate. (Pause)

42. MS BUDDEN: My Lord, yes, there is no problem about that. The local authority are prepared to reconsider the decision in the light of the decision.

43. MR JUSTICE CHARLES: I think a declaration along those lines, a declaration -- I would be grateful if you two of you would consider the wording of it with some care, along the lines I have suggested.

44. MR FRIEL: My Lord, yes.

45. MR JUSTICE CHARLES: If you fall out about it, you will have to write to me about what should actually go in the order but I think it is a matter, simply, of language.

46. MR FRIEL: My Lord, I hope we will not fall out. We do not. I should actually confirm that I did have -- my instructing solicitor kept me in touch with the payment issue and counsel have always got on very well, but there were hitches in between and I should say that I was not informed that it had been done. It had been done and I have checked that it has been done I can confirm we do accept that it has been done.

47. Other than that, there is the issue, first of all, of costs and, secondly, we are legally aided, so I would apply for an order for costs to be assessed if not agreed and that the assessment should be in accordance with the LSC assessment.

48. MR JUSTICE CHARLES: Is there anything you want to say about that? I think that follows. I make that order.

49. I am grateful to you both. Thank you very much.