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CP, R (On the Application Of) v North East Lincolnshire Council [2019] EWCA Civ 1614

The Court of Appeal allowed an appeal in judicial review proceedings concerning the provision of and payment for services under Care Act 2014 and Children and Families Act 2014. It also considered the circumstances when a family member can be a litigation friend.

CP is a 22-year old woman with global development delay, learning difficulties and an autistic spectrum disorder. She does not communicate verbally. She can communicate to an extent by behaviour, gesture and vocalisation. She cannot be left alone at any time, is doubly incontinent and requires assistance with washing and dressing. Her behavioural difficulties can make her challenging. She wakes every night and requires a carer to be with her. She uses a wheelchair when in the community. She lives with her parents in Lincolnshire.

The dispute centred on whether CP should be funded by the local authority for attending provision run by a charity, which had been set up by her father and in which he was actively involved. The local authority disputed his suitability to act as litigation friend.

Haddon-Cave LJ gave the substantive judgment. Flaux and Moylan LJJ agreed.

The court reviewed the history of the disputes between the local authority and CP's parents about whether her needs were to be treated as social care or educational needs. [paras 8-36]. The local authority refused to accept that the activity centre was "education". It accepted that the cost of CP's personal assistant who took her to the activity centre and stayed with her should be met through social care. It declined to pay for the use of the centre.

An appeal to SENDIST (FTT) led to a direction that there should be an EHC plan for CP as she required education including life-skills and speech and language therapy. The council complied but did not name a placement. Further litigation before the FTT led to the activity centre being named as the provision.

By the time the judicial review was to be decided at first instance the local authority had agreed to make payment for CP's use of the activity centre, but not retrospectively. The judge refused the application for judicial review.

The Court of Appeal [at paras 37- 45] reviewed the "overlapping" provisions of the Care Act 2014 and Children and Families Act 2014 and the applicable Statutory Guidance [para 46-48].

The Court held that:

(1)  the fact that a provision is "education and training" under s.21 of the CFA 2014 does not mean that it cannot also provide an element of social care; and vice-versa. The two matters are complimentary, not mutually exclusive. [para 74]

(2) the Council's failure when drawing up CP's support plan dated 11th April 2016 to ensure that CP's personal budget included adequate payment for her needs, including her weekly attendance at the activity centre, represented a failure by the Council ab initio to comply with its statutory duties under s. 26 of the Care Act 2014 (and the linked duties under ss. 18, 24 and 25 of the Care Act 2014) read in the light of the statutory Guidance. [para 75]

(3) A local authority's statutory duty under s. 26 of the Care Act 2014 to provide a personal budget to meet a person's care and support needs is fundamental to the operation of the care and support scheme which the Care Act 2014 underpins. [para 82]

(4) having found the Council in breach of its statutory duties, the judge should have gone on to hold that the Council had acted unlawfully and, accordingly, was liable in principle to compensate CP in respect of any monetary shortfall in accordance with normal public law principles of legal accountability of public bodies. [para 83]

(5) The fact that the Council was held by the FTT also to have been in breach of its duty to issue an EHC plan under the overlapping provisions of s. 37 of the CFA 2014  in no way replaced or expunged the separate breach of s. 26 of the Care Act 2014. The question of liability under s.26 could in no sense be 'ceded' to the FTT. [para 85]

(6) The agreement to pay did not remove the fact that CP had been out of pocket for her liability to pay for the earlier time spent at the activity centre and she was entitled to compensation for the unlawful conduct in that period. The fact that these were JR proceedings did not preclude a court granting that relief.  It was not academic [para 86] and was not a private law claim [para 89]

(7) There was no evidence that the activity centre was not a genuine arms-length charity and therefore:

(a) There was no conflict of interest which precluded the father acting as litigation friend; [para 87]

(b) it was not a payment for care being provided by a designated family carer. [para 88]

Case summary by Nicholas O'Brien, barrister Coram Chambers

You can read the full judgment of CP, R (On the Application Of) v North East Lincolnshire Council [2019] EWCA Civ 1614 via BAILII