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S (R, on the application of) v Hampshire County Council [2009] EWHC 2537 (Admin)

Application for judicial review of a Core Assessment for the purposes of the Children Act where the child was claimed to have severe disabilities and behavioural difficulties. Application refused.

The Council accepted that they needed to undertake an assessment in 2008 (the child was then aged 10) but the mother complained that the assessment was flawed and so a further assessment took place in May 2009. The mother then issued the application for judicial review in July 2009 on several grounds including claims that i) the 2009 assessment was discriminatory against those suffering from severe mental disorders; ii) that the Council was in breach of its duties under s17 of the Children Act; and that iii) the Children Act Assessment Guidelines are unlawful.

The Council defended their position by stating that i) the claimant had an alternative remedy through the complaints and review procedure set out in their letter to the claimant following the assessment; ii) the delay in making the application was too great and iii) the case was unarguable. Walker J agrees with the council, particularly in their first argument, and then goes on to review the history of the case and the relevant statutory provisions.

Neutral Citation Number: [2009] EWHC 2537 (Admin)
Case No: CO/7578/2009

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22/10/2009

Before :

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Between :

The Queen on the application of S (Claimant)

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Mr John Friel (instructed by Anthony Collins Solicitors LLP) for the claimant
Mr Andrew Sharland (instructed by Hampshire County Council) for the defendant

Hearing dates: 11 & 12 August 2009
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Mr Justice Walker:
1.The claimant is a child. By an order dated 15 July 2009 made by His Honour Judge McKenna sitting as a deputy High Court Judge the claimant’s identity is not to be published in any manner whatsoever. I shall refer to him as “S”, and to his mother as “L”.

2.S was born on 29 July 1998. It is said on his behalf that he is severely disabled. He undoubtedly has serious behavioural difficulties. He lives in Hampshire. The defendant Hampshire County Council (“the Council”) accepts that S is within its area. The Council accepted that under the Children Act 1989 and the Framework for the Assessment of Children in Need and their Families, (“the Framework”) it should investigate S’s needs and prepare a Core Assessment Record. The Children’s Services Department made a first attempt to do so in April 2008 (“the 2008 Assessment”). This was the subject of a complaint by L. Parts of that complaint were accepted to be justified. A fresh assessment was made by a social worker on 28 April 2009 and was signed on behalf of the Council on 13 May 2009 (“the 2009 Assessment”). Both the 2008 Assessment and the 2009 Assessment were prepared using a standard form. I shall refer to this form as “the CAR Form”.

3.On 15 July 2009 solicitors acting for S issued a claim form seeking permission to apply for judicial review. It was accompanied by an application for urgent consideration. This resulted in the order of Judge McKenna mentioned earlier, which directed an oral permission hearing in the week 20-24 July. Such a hearing was listed for 23 July 2009 and took place before Wyn Williams J sitting in the High Court at Birmingham that day. He gave directions that the matter be transferred to the Administrative Court in London, to be expedited and listed for a “rolled up” hearing. A “rolled up” hearing is one at which the judge hearing the case may, if permission to apply for judicial review is granted, proceed at once to decide the substantive application for judicial review.

4.The “rolled up” hearing began before me on 11 August 2009, estimated to last a day. It rapidly became apparent that a day would not be long enough. I concluded that I would need to hear oral submissions on behalf of the Council in order to gain a proper understanding of the facts and arguments. The hearing continued on 12 August 2009, which enabled oral argument on behalf of the Council to be completed. I gave directions for a written reply on the part of S, and for the Council to be able to make a written response to any new points in that reply.

The rival contentions
5.The claim form states in section 3 that S complains of two matters. The first is a refusal on the part of the Council to provide services for S following the 2009 Assessment. The second is described as “Ongoing failure to provide services to [S] who is a child in need as from 4 February 2008…”

6.In section 6 of the claim form 3 main remedies are sought. They are:

(1) A declaration that Hampshire County Council’s Criteria for Services for Disabled Children are discriminatory and in breach of the Disability Discrimination Act, Sections 19-21 inclusive, as they discriminate against children/young adults with severe mental health disorders

(2) An order setting aside the decision contained in the core assessment concluded on 28 April but served about the 20 May, that no services were required for [S].

(3) A declaration that the failure to provide consistently to the Claimant any social care services, was and is irrational and unlawful.

7.Lengthy grounds for judicial review were attached to the claim form. For the most part I shall refer to them as amended (“the amended grounds”). They asserted at the outset that the Council was in breach of statutory duty under s 17 of the Children Act 1989. In that regard the 2009 Assessment was said not to conform with mandatory guidance, and to be unlawful in any event as it did not define “needs”.

8.The second complaint was that the 2009 Assessment was discriminatory:

because it discriminates against mental health disorders which are severe and profound affecting those of average to above average ability and favours those with cognitive deficits to the detriment of disabled persons who require services and assistance under the Children Act, who are profoundly affected by their mental health problems, but have an assessment of average ability.

9.There was a third complaint. The Council was said to have acted in a manner which was procedurally unfair. The 2009 Assessment had been made:

without revealing and without disclosing, the relevant criteria (as yet undisclosed) by the disabled children’s team.  As the re-assessment was brought about by pre-action protocol correspondence, the authority and its social services department, was well aware of its duty to act fairly. 

10.Fourth, failure to provide assistance during periods when S would be at home rather than at a specialist residential school was said to be irrational, in particular because the 2009 Assessment acknowledged that S had severe self-harm and behavioural problems at home.

11.Fifth, the 2009 Assessment noted that L described a risk that “she may start finding [S’s] care too difficult to manage and that she may potentially request for him to be accommodated by the Local Authority.” The amended grounds appeared to say that the 2009 Assessment for this reason failed to treat S as a child in need who required services. It then continued that S:
is at risk. The Assessment, which was bound to consider parental capacity, was to acknowledge this fact.

12.Sixth, in concluding that no services should be provided to S and L, the 2009 Assessment failed to consider that S:

is suffering from such severe mental health disorders, and that he requires a residential specialist school offering a 38 week waking day 24 hour curriculum.  Further, he was asked to leave his assessment period at Great Ormond Street Hospital because of his extreme violence, an extremely unusual fact.

13.The seventh and final head of complaint in the amended grounds said there had been a  failure to have regard to mandatory guidance:

namely the Children Act Policy Guidance, and the Children Act Guidelines 2000 Framework for Assessing Children in Need and their Families.  In particular the core assessment does not:-

Identify all known needs, in particular it understates the severe mental health needs and is irrational.

Identify an appropriate care plan.

Consider what services are required to meet needs. 

As a result it is unlawful.

14.The Council responded that all these suggested grounds for review were without foundation. Quite apart from that, however, it asserted that the court should not even enquire into them. First, S had an adequate alternative remedy, and on well established public law principles should not be allowed to seek judicial review when that alternative remedy had not been sought. Second, claims of this kind ought to be made promptly. The delay in the present case between mid- May 2009 and 15 July 2009 was far too great. The Council also asserted that S’s claim was unarguable. For all those reasons, it said that S should be refused permission to apply for judicial review.

15.The factual basis for the Council’s assertions about alternative remedy and delay was summarised in the Council’s skeleton argument. It stated that the 2009 Assessment was given to L on 13 May 2009, along with a covering letter. Paragraphs 8 onwards of the Council’s skeleton argument continued:

8. …The covering letter stated that if [L] had any queries or wished to discuss the assessment she should not hesitate to contact the Council… The 2009 Assessment has a number of spaces where the Claimant’s carer [L] could detail her views if she felt the 2009 Assessment did not accurately record the Claimant’s needs. No such concerns were raised by [L]. The Council notes that there is no correspondence in the bundle taking issue with the [2009 Assessment] let alone a pre-action protocol letter in relation to it.

12. Although the Council, in its covering letter asked [L] to contact them if she wished to discuss the 2009 Assessment she did not do so.  [L] did not complain or take issue with the contents of the core assessment at all.”

13. No letter before action was sent challenging any aspect of the 2009 Assessment and the decision contained therein not to provide any further services to the Claimant.

14. The first time the Council was aware of the present claim for judicial review was on 17 July 2009 when it was contacted by the Administrative Court to inform them that the matter was to be listed on 23 July 2009 in Birmingham.  Prior to that time, the Council had received no documents relating to the claim. In particular, the Council did not receive a letter dated 14 July 2009 (or any other date) serving the claim upon them.

15. After the Council was contacted by the Administrative Court, it contacted the Claimant’s solicitors.  By email at 11.59 pm on 20 July 2009, the Claimant’s solicitors sent a copy of the claim form, bundle and grounds.  This email included a letter dated 14 July 2009 (which stated that it enclosed the judicial review claim) which the Council understands the Claimant asserts was sent to it.  The Council requested evidence of such service but the Claimant’s solicitors have produced no evidence whatsoever on this issue.

16. The bundle contained a witness statement from [L] dated 12 January 2009. Thus, it contained no criticism whatsoever of the decision under challenge, the 2009 Assessment.

17. The matter was heard before Wyn Williams J in the High Court in Birmingham on 23 July 2009.  On the morning of the hearing, the Claimant for the first time produced a paginated bundle.  The Claimant also produced a further witness statement dated 23 July 2009.

18. Because of the very late production of both the bundle and the witness statement, Wyn Williams J indicated that he would have difficulty considering the matter properly. Wyn Williams J also indicated that he did not understand why the claim had been issued in Birmingham when both the Claimant and Defendant were based in Hampshire and both counsel were based in London. In light of this, the parties agreed an order listing the matter for a rolled up hearing in London in mid August 2009.  It is notable that at this hearing on 23 July 2009 the Claimant did not seek any interim relief; ie no services were sought on an interim basis during the holidays. The Council suggests that this indicates that, contrary to what the Claimant initially said in his application for urgent relief, [L] is able to care for and meet the Claimant’s needs during the holidays with the assistance of his child minder.

19. The Claimant, with the permission of the Court, amended his grounds of claim and, without the permission of the Court, adduced a third witness statement dated 27 July 2009. To a considerable extent this witness statement addresses matters subsequent to the decision under challenge; as such, as a matter of law, such evidence is not relevant to a challenge to the legality of the 2009 Assessment.

My conclusion
16. I have concluded that permission to apply for judicial review should be refused. Each of the three reasons advanced by the Council for refusing permission is satisfied. The existence of an adequate alternative remedy would alone have enabled the court to conclude that permission to apply for judicial review should be refused. There were various reasons why in the present case I did not take a decision that argument in the first instance should be confined to that question. This should not be taken as a precedent.

17. In part my decision was influenced by other features of the case which should not be taken as precedents either. The precise nature of the case advanced on behalf of S was in major respects a continually moving target. S’s original grounds for seeking judicial review - along with the amended grounds, a first skeleton argument and a second skeleton argument - lacked a clear structure and involved a lengthy account of alleged facts and opinions. The grounds were listed as a series of un-numbered bullet points – a less than satisfactory way of identifying things that have to be referred to later. Interspersed among the account of facts and opinions were assertions as to various ways in which they gave rise to grounds of challenge. It may well be that having - in my view wrongly - reached the conclusion that urgent proceedings for judicial review ought to be brought, those advising L rushed to assemble their material without taking the time needed to present a coherent analysis. If so, that was the wrong approach. S’s team wanted the court to deal with the matter urgently. In order for the court to understand the nature of the case it was vital to ensure that the legal case advanced by the claimant was clearly structured, with each ground for seeking judicial review separately identified, and the matters relied upon under each ground set out in a way which enabled them to be readily assimilated.

18.In the remainder of this judgment I shall deal with various background matters, including statutory provisions and key features of the factual history. I shall then go through the claimant’s oral submissions, identifying the assertions that were relied upon in oral argument and explaining why each lacks any sufficient merit to warrant the grant of permission to apply for judicial review. I then turn to deal with the questions of alternative remedy, including failure to follow the pre-action protocol, and of delay.

Legislative provisions and guidance
19.The Children’s Act 1989 by s 17 (1) places a general duty on local authorities to safeguard and promote the interests of children in need. In furtherance of their duty they are empowered to provide a wide range of services. Under s 17(10) a child shall be taken to be in need if:

a) [the child] is unlikely to achieve, nor maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health and development without the provision for [the child] of services by a local authority….

b) [the child’s] health or development is likely to be significantly impaired, or further impaired, without the provision for [the child] of such services, or

c) [the child] is disabled.

20.Under s 17(11):

For the purposes of this part, a child is disabled if he is blind, deaf or dumb or suffers from a mental disorder of any kind or is substantially and permanently handicapped by illness, injury, congenital deformity or such other disability as may be prescribed; and in this part –

‘development’ means physical, intellectual, educational, social and behavioural developments; and
‘health’ means physical or mental health.

21.Policy Guidance under the Children Act 1989 includes the following:

2.7 Good practice requires that the assessment of need should be undertaken in an open way and should involve those caring for the child, the child or other significant persons…

2.8 In making an assessment, the local authority shall take account of the particular needs of the child – that is in relation to health, development, disability, education, religious persuasion, racial origin, cultural and linguistic background, and the degree to which these needs are being met by existing services to the family or the child and which agency services are best suited to the child’s needs.

22.The Children Act Guidelines 2000 Framework for Assessing Children in Need and their Families Policy Guidance, issued by the Department of Health, requires there to be an assessment of 3 domains: Domain A – child’s developmental needs; Domain B – parenting capacity; and Domain C – family and environmental factors. At paragraph 3.11 of the Guidance a core assessment is defined as an in depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or care givers to respond appropriately to these needs within the wider family and community context.  

23.The Carers and Disabled Children Act 2000 includes the following:

6 (1) If a person with parental responsibility for a disabled child –

(a) provides or intends to provide a substantial amount of care on a regular basis for the child, and
(b) asks the local authority to carry out an assessment of its ability to provide and continue to provide care for the child

the local authority must carry out such an assessment if it is satisfied that the child and his family are persons for whom it may provide or arrange for the provision of services under Section 17 of the Children Act…

(2) For the purposes of an assessment an authority may take into account, so far as it considers to be material, an assessment under Section 1 (2) the Carers Recognition and Services Act 1995, to

(2A) An assessment under subsection 1 must include consideration of whether the person with parental responsibility for the child -

(a) works or wishes to work
(b) is undertaking or wishes to undertake education….

24.The Guidance on Fair Access to Care 2002 observes that care plans and assessments of need should be accessible to the user. It also sets out requirements for care plans.

25.The Children Act 2004 includes the following:

"10. Co-operation to improve well-being

 (1) Each children’s services authority in England must make arrangements to promote co-operation between –

(a) the authority;
(b) each of the authority’s relevant partners; and
(c) such other persons or bodies as the authority consider appropriate, …

(2) 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 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.

(3) In making the arrangements under this section, the children’s services authority in England must have regard to the importance of parents and other persons caring for children in improving the well-being of children.

(4) For the purpose of this section, each of the following is a relevant partner of the children’s services authorities:

(a)  ….
(e) A strategic health authority and primary care trust for an area any part of which falls within the area of the authority.

11 - Arrangements to safeguard and promote welfare

(1) This section applies to each of the following –

(a) A children’s services authority in England.

(2) Each person and body to whom this section applies must make arrangements for ensuring that -

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of the children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in discharge of their functions, are provided having been regard to that need."

26.The Children Act 1989 Representations Procedure (England) Regulations 2006 (“the Complaints Regulations”) provide for investigation and consideration of representations, and for a review panel in certain circumstances.

27.The Disability Discrimination Act 1995 includes the following:

"19. Discrimination in relation to Goods Facilities and Services

(1) It is unlawful for a provider of services to discriminate against a disabled person –

(a) in refusing or deliberately not providing to the disabled person, any service which he provides, or is prepared to provideto members of the public
(b) in failing to comply with any duty imposed on him by Section 21 in circumstances in which the effect of the failure is to make it impossible or unreasonably difficult for the disabled person to make use of the service
(c) ….

(2) For the purposes of this section and Sections 20-21ZA:

(a) the provision of services includes the provisions of goods or facilities
(b) a person is a ‘provider of services’ if he is concerned with the provision in the United Kingdom of services to the public or a section of the public and
(c) it is relevant whether the service is provided on payment or without payment.

(3) The following are examples of services to which this section and Sections 20 and 21 apply –

(a) …
(h) the services of any professional trade, or any local or other public authority.

20. Meaning of Discrimination

(1) For the purpose of Section 19, a provider of services discriminates against the disabled person if –

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does or would not apply; and
(b) he cannot show that the treatment in question is justified.

(2) For the purpose of Section 19, a provider of services also discriminates against the disabled person if –

(a) he fails to comply with a Section 21 duty imposed on him in relation to the disabled person;
(b) he cannot show that his failure to comply with that duty is justified.

(3) For the purposes of this section the treatment is justified only if –

(a) in the opinion of the provider of services, one or more of the conditions mentioned in sub-section (4) are satisfied; and
(b) it is reasonable in all the circumstances of the case for him to hold that opinion.

 (4) The conditions are that –

(a) in any case the treatment is necessary in order not to endanger the health or safety or any person…
(b) in any case the disabled person is incapable of entering into an enforceable agreement or of giving an informed consent.  For that reason the treatment is reasonable in that case
(c) in a case falling within Section 19(1A) the treatment is necessary because the provider of services would otherwise be unable to provide services to members of the public
(d) …
(e) …

(5) Regulations may make provision for the purposes of the section as to the circumstances in which –

(a) it is reasonable for a provider of services to hold the opinion mentioned in sub-section (3)(a); 
(b) it is not reasonable for the provider of services to hold the opinion.

21. Duty of Provider of Services to make Adjustments.

(1) Where a provider of services has a practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to make use of a service which he provides, or is prepared to provide, to other members of the public, it is his duty to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to change that practice, policy or procedure so that it no longer has that effect.

21B. Discrimination by Public Authorities

(1) It is unlawful for a public authority to discriminate against a disabled person in carrying out its functions.
(2) In this section … public authority –

(a) includes any person certain of whose functions are functions of a public nature;"

Children’s services departments
28.I was referred on behalf of the claimant to Community Care & The Law, Clements & Thompson, 4th Ed. p.667, para. 24.8 –

Many children’s services departments discharge their various responsibilities through specialist social work teams – for instance “a child protection team”, “a disabled children’s team” and so.  Not infrequently a disabled children’s team will have terms of reference that exclude certain children, for instance those with “high functioning (i.e. a high IQ) Asperger’s syndrome or those with ADHD or ADD”.  Authorities are, in general, free to make these organisation arrangements provided they ensure that the needs of such children are given equal attention (albeit by different sections) and do not fall between the terms of reference of the various teams.  It would be maladministration (and potentially unlawful under the DDA 1995) if organisational arrangements of this nature resulted in such children’s needs being neglected. [claimant’s emphasis]

History prior to the 2009 Assessment
29. The amended grounds and skeleton argument on behalf of S set out his history in very great detail. It is neither necessary nor appropriate to set out all of the details in this judgment. In this section I seek to give an overview. Where it is necessary to refer to particular points of detail I do so in those sections of the judgment where the point of detail concerned needs to be mentioned.

30. S’s early history involved a number of behavioural difficulties. In 2005 he was found to demonstrate above average intellectual ability. It is said that his intellectual ability had decreased since then. Those involved in his medical care have included the local Child and Adolescent Mental Health Services (“CAMHS”) and Great Ormond Street Hospital (sometimes referred to as “GOSH”).  An assessment by Dr Santosh at Great Ormond Street Hospital diagnosed psychiatric disorders. These included Asperger’s Syndrome, general anxiety disorder with panic symptoms and multiple phobias, an adjustment disorder – depressive sub-type; an oppositional defiance disorder, and attention deficit hyper-activity disorder. S’s intellectual level was within the normal range, and his behavioural problems were associated with normal psycho-social situations, which included stressful situations resulting from S’s own disorders. In December 2007 a paediatric occupational therapist concluded that S’s difficulties were hindering his ability to access and participate fully in school life. She recommended occupational therapy. In February 2008 a speech and language therapist found that S suffered from an expressive language disorder, a severe receptive language disorder, in addition to social communication difficulties.

31. In January 2008 a complaint was made to the Children’s Services Department about the absence of a Core Assessment and Care Plan, any planning and liaison with public authorities responsible for health and education, and the absence of any provision of services by the Council for S. This complaint led to pre-action protocol letters on 25 March and 22 April 2008. Shortly thereafter the Council produced the 2008 Assessment. This concluded that S’s needs could be met by existing services within the community and by professionals already involved in his care.

32. L complained about the 2008 Assessment. Relevant procedures were followed under the Complaints Regulations. An independent person was appointed who concluded that certain parts of the complaint were justified. A process of reassessment was begun by the Council.

33. On 24 April 2009 a Statement of S’s Special Educational Needs was finalised. This provided for attendance at a residential school for 38 weeks of the year. On 7 May 2009 a further pre-action protocol letter was sent to the Council, complaining of delay in preparing the fresh assessment. Within a few days the Council hand delivered the 2009 Assessment with an accompanying letter.

The 2009 Assessment
34.The conclusions of the Council were set out in a final section of the 2009 Assessment entitled, “Analysis of the information gathered during the core assessment.” I shall refer to this section as “the Analysis”. The CAR Form stated that the analysis should list the factors which have an impact on different aspects of the young person’s development and parenting capacity, and explore the relationship between them. This process of analysing the information available about the young person’s needs, parenting capacity and wider family and environmental factors should result in a clear understanding of the young person’s needs, and what types of service provision would best address these needs to ensure the young person has the opportunity to achieve their potential.

35.It is necessary to set out the whole of what was said by the Council in the Analysis.  For convenience I have numbered the paragraphs in square brackets:

[1.] In order to meet the threshold criteria for a service from the Disabled Children’s Team, [S] would need to fall into the severe or profound spectrum for two categories of the DCT threshold criteria pertaining to his developmental needs. This assessment has considered information gathered from [S]’s mother, school, CAMHS consultant Dr Kurinji, GP Dr Kimber (duty GP in Dr Sweeney’s absence), Developmental Neuropsychiatric Report by Drs Santosh and Mohan, and previous Occupational Therapy input. The assessment has been undertaken in consultation with Social Worker Ceri Hughes from the Disabled Children’s Team.”

[2.] The information gathered indicates that [S]’s behavioural difficulties fall into the severe/profound spectrum of the DCT threshold criteria, which covers one category. However, his needs do not fall into the severe/profound spectrum for any of the other categories of the DCT threshold criteria, as he is physically well and performing to National Curriculum levels at school. [S] therefore does not meet the criteria for a service from the DCT Team.

[3.] Furthermore, this assessment has ascertained that [S] has attended recent appointments with CAMHS and [the residential school], indicating that his behaviour has not recently prevented him from accessing the necessary appointments.

[4.] This assessment has ascertained that one of GOSH’s key recommendations was for [S] to be offered CBT [cognitive behavioural therapy] by his local CAMHS in respect of his anxiety and associated behavioural issues – CAMHS are aware of this recommendation and have advised that they will give consideration to whether this could be offered to address any unmet needs. It is also the professional view of social workers Ceri Hughes and Lindi Clayton, that CBT may prove to be very useful in respect of helping [S] to manage some of his difficulties.

[5.] [S] appears to be doing well on his current dosages of medication and he is on the waiting lists for speech and language therapy as well as Occupational Therapy.

[6.] [S] continues to be under the care of GOSH as well as consultant child and adolescent psychiatrist Dr Kurinji.

[7.] [S]’s placement at [the residential school] has recently been confirmed and he is due to start his induction period at the end of June 2009 and to start a 38 week per year fortnightly boarding placement from September 2009. I do not consider the level of services that [L] has requested from Children’s Services for the holiday periods to be necessary or appropriate, as there are measures that [L] herself could take in order to enable her to have more free time during the school holidays during which to support [S] to access community services.

[8.] The appropriate services such as Speech and Language therapy and CBT have already been recommended by GOSH and this assessment has also indicated that these services may prove to be very useful for [S].

[9.] The suggestion that [S]’s needs have changed and that his behaviour has become more challenging and difficult to manage since the last Core Assessment which was undertaken in 2008 has not been confirmed by the enquiries carried out during this assessment.

[10.] In conclusion, I have identified no further role for Hampshire County Council’s Children’s Services department as [S]’s needs are being addressed by Education and Health, and he does not meet the threshold criteria for a service from the Disabled Children’s Team.

What happened after the 2009 Assessment
36.An account of what did and did not happen after L was given the 2009 Assessment will be found in the extracts from paragraphs 8 to 19 of the Council’s skeleton argument cited above. There is a dispute as to whether S’s solicitor had a discussion with the Council in which it was agreed that service of proceedings would be accepted by email. I need not attempt to resolve that dispute, it is immaterial for present purposes.

Oral submissions for the claimant: alleged fettering
37.The first assertion advanced orally on behalf of S was a complaint that there had been a fettering of discretion by the Council. It is not clear to me which, if any, of the grounds for judicial review listed at the beginning of the amended grounds (see “The rival contentions” above) was said to advance such a claim. Mr Friel on behalf of S relied upon well known propositions of law found in British Oxygen Company Limited v Board of Trade [1971] AC 610. At page 625 Lord Reid said this:

… the circumstances in which discretions are exercised vary enormously … the general rule is that anyone who has to exercise a statutory discretion must not “shut his ears to an application”… I do not think there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What they must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will have almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say – of course I do not mean to say that there need be an oral hearing. In the present case the respondent’s officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so.

38.Mr Friel added that the passage from Clements & Thompson applied these propositions. He submitted that the Analysis involved a fettering of discretion. This, he submitted, was the consequence of the conclusion that S’s needs were met and that he did not meet the threshold criteria for the Disabled Children’s Team.

39.The main obstacle facing Mr Friel’s submissions about fettering was that written evidence on behalf of the Council expressly dealt with this contention. Ms Becky David, employed by the Council as a Team Manager in Children’s Services, made a witness statement dated 31 July 2009. This stated at paragraph 10:

I … refute the Claimant’s assertion that the Council fettered its discretion. This is not the case, the Council did not consider that there were any exceptional circumstances why additional services should be provided.

40.Criticisms by Mr Friel led to a further witness statement from Ms David stating expressly that the Council considered whether S had any needs that could be met by, among others, the Disabled Children’s Team. It was also clear from the Council’s evidence that the team conducting the 2009 Assessment included a member of the Disabled Children’s Team.  Ms David added in paragraph 10 of her first statement that all relevant teams had input into the 2009 Assessment.

41.Mr Friel submitted, in effect, that the court should not accept what was said by Ms David – at least as regards her assertion as to the Council’s view on whether there were any exceptional circumstances. He sought to support this submission in two ways. First, he said, rightly, that the 2009 Assessment does not state expressly that the Council reached the view that no exceptional circumstances existed. The short answer to this is that there is no obligation to include such a statement in the 2009 Assessment. Second, Mr Friel both in oral submissions and in his written reply went through a long list of complaints about the 2009 Assessment. Assertions were made that particular matters were “quite exceptional”, that there had been a failure to appreciate that needs were not being “fully and professionally met”, that there had been a failure to consider “need” correctly. Similar points were made in the written reply, along with a complaint of inconsistency between the 2008 Assessment and the 2009 Assessment and failure to appreciate that speech therapy was needed for the purpose of day to day living. In the context of an argument about fettering of discretion, however, these points were misdirected. They may or may not give rise to other grounds of challenge. If they do, then the question of fettering of discretion does not arise. If they do not, then there was nothing unlawful in the Council’s approach to those matters, and they do not offer any sound basis for going behind paragraph 10 of Ms David’s statement.

42.It follows from this analysis that there is no legal or factual merit in the assertion that the Council fettered its discretion. Moreover, there is a further and fundamental point made strongly by Mr Sharland on behalf of the Council. The 2009 Assessment invited comment at a number of stages. In particular, at the foot of page 50 after the setting out of the paragraphs that I have numbered [1] to [10], the form had a heading “Parents/Carer’s comments”. At page 51 the space made available for such comments was left blank. There can be no doubt that L was offered the opportunity to comment on the assessment and did not take it. Mr Friel submitted that in the circumstances there were good reasons for failing to take the opportunity to comment. I shall deal with this below. On the question of fettering, however, it seems to me that the Council made it clear to L that it was willing to hear anything further that she might wish to say. In those circumstances it seems to me clear that the claim of fettering is bound to fail.

Claimant’s oral submissions: “needs/provision”
43.Mr Friel asserted that in the 2009 Assessment there had been confusion between “provision” and “need”, leading to a failure to make provision for all S’s needs. This submission reflected the assertions made at the outset of the amended grounds. I can deal with this submission shortly. There is no doubt that an assessment of this kind must make a distinction between the “needs” of the child, and the provision to meet those needs. The task is to identify the needs, to consider what provision is required to meet those needs, and to set out what services the Council will provide to ensure that the particular child has the opportunity to achieve that child’s potential.

44. Mr Friel criticised numerous passages in the main body of the 2009 Assessment leading up to the Analysis at pages 49 and 50. If the 2009 Assessment had been a Chancery document then these criticisms would no doubt have been made good. The main part of the 2009 Assessment, dealing in turn with S’s developmental needs, L’s parenting capacity, and family and environmental factors, adopted a discursive approach on many aspects. That did not prevent it from identifying “needs”. In my view, moreover, the criticism plainly founders when one comes to the Analysis at pages 49-50. Mr Friel accepts that the document is not to be construed as if it were prepared by a legal draughtsman. The key conclusion is found in paragraph [7]. S’s needs as regards 38 weeks of the year will be met by a fortnightly boarding placement. A fair reading of paragraph [7] is that the Council has considered what provision will be required to meet S’s needs when he is not at boarding school. The clear conclusion is that L, in conjunction with community services, will – during those periods – be able to give S the appropriate provision to address his needs.

45. Complaint was made that paragraphs [1] to [10] did not adequately state what S’s needs were. There was, however, no obligation on the Council in the Analysis section of the 2009 Assessment to re-state the needs which it had identified in the earlier part of the Assessment. Complaint was further made that in parts of [1] to [10] reference was made to possible provision by others which would be “useful” for S. This complaint is misconceived: the Council made clear the essential reasons for its conclusion in paragraph [7], and I do not detect any ground for legal challenge in the mere fact that in other paragraphs it made observations about assistance that would or might be “useful”. Additional points in relation to need were made in support of an irrationality challenge which, for the reasons I give below, has no legal merit.

46. Accordingly I conclude that S’s complaint concerning the distinction between “needs” and “provision” has no foundation.

Claimant’s oral submissions: assumptions as to the future
47. It was asserted, rightly, that certain of the services identified in the Analysis at pages 49-50 of the 2009 Assessment were, as at the date of that document, to be provided in the future. Mr Friel submitted that, in relation to CBT at least, the availability of such a service was theoretical at best – S was not even on a waiting list.

48. I am willing to accept for present purposes that it may be possible to demonstrate to a court that an assessment will be legally invalid if it is premised on the basis that a particular service will be available whereas it was quite clear at the time of the assessment that the services in question would not be available. The cases cited by Mr Friel in my view go no further than this. The submission on behalf of S in this regard, however, breaks down because on a fair reading of the Analysis it is not premised on the availability of any future service other than the placement at a residential school which was due to start in September this year. That placement has gone ahead. The Council was fully entitled when preparing the 2009 Assessment to work on the basis that it would go ahead. For the reasons given in the preceding section of this judgment, comments about other future matters in the Analysis were no more than observations. They did not play any part in the key reason which is found in paragraph [7] of the Analysis.

Claimant’s oral submissions: relevant factors and rationality
49. It was submitted that the Council had failed to pay regard to a host of mandatory factors. One such was the risk that L might find S too difficult to manage and require that he be accommodated by the Council. This reference to L’s parenting skills reflected the fifth ground advanced in the amended grounds. Another was that S needs assistance in socialisation in all circumstances – the classic characteristics of his autism were rigidity of thought and an inability to understand communication to him along with an inability to relate to those communicating with him. This may reflect the sixth ground relied upon in the amended grounds. A further factor said to have been left out of account was that S self-harms and thus was at risk. This reflects the fourth ground in the amended grounds, which referred also to behavioural problems at home, and made an assertion that the 2009 Assessment was irrational.

50. All these matters may be thought to fall within the seventh ground relied upon in the amended grounds, complaining of failure to have regard to the mandatory guidance. In whatever way they are put, however, in my view they can only succeed if it can be demonstrated that the Council’s conclusion was outside the range of reasonable conclusions available to it. It is quite impossible to contend that the Council failed to have regard to what L had said about the danger she could not cope, to the characteristics of S’s autism, or to his self-harming and other behavioural problems at home. All these matters are mentioned, either directly or indirectly, in the parts of the 2009 Assessment prior to the Analysis. The same is true of various matters where, as the argument progressed, Mr Friel submitted that a factor had been taken into account which ought not to have been taken into account. Thus it was said that the Council had been under a misapprehension about S’s Statement of Educational Needs. Mr Friel said the Council wrongly thought that the Statement did not require residential provision for education. In that regard, it is perfectly plain that the Council was working on the basis that S would have a residential placement, and it is quite impossible to say that any mistake about whether this was required by the Statement was something which had an effect on the Council’s decision. In various respects reliance was placed on events after the 2009 Assessment. I do not understand how the Council can be criticised for not taking account of events which had yet to occur.

51. Thus all that is left under this head is an argument about reasonableness. It is a fundamental principle in this regard that the court is not the decision taker. It is not for the court to take a decision on the merits. The only question is whether a reasonable decision maker could have come to the conclusion reached by the Council. The submissions on behalf of S seemed to me to have lost sight of that principle. Great stress was laid on the behavioural problems exhibited by S when at Great Ormond Street Hospital. There can be no doubt that the Council was fully aware of these problems. As against what happened at Great Ormond Street Hospital the Council was entitled to take account of its assessment of the position when S was at home with L and her partner, or with her mother, and when he was with his child minder. There is simply no basis for asserting that this is a case in which the material available to the Council about L’s ability to cope with S was all one way or so overwhelmingly contradictory of the Council’s position that no reasonable Council could have adopted it.

Claimant’s final oral submission: discrimination
52. It is common ground that the Council has a special Disabled Children’s Services Team, but does not provide the services of this Team to all disabled children. It will generally provide services of this Team to children whose disabilities meet a certain number of criteria under a “matrix” adopted by the Council. As regards mental health or similar disabilities, the services of the Disabled Children’s Team will not generally be offered where a child has average or above average cognitive ability. S asserts that this is contrary to the Disability Discrimination Act 1995 (see ss 19, 20, 21 and 21b quoted above). It is said on behalf of S that the Council’s policy positively discriminates favourably for some disabled persons, those of low cognitive ability who meet the criteria overall, and actively discriminates against those with good cognitive ability who have severe learning behavioural difficulties. The submission on behalf of S is that the Council’s policy is discriminatory and unlawful under the 1995 Act.

53. Thus the fundamental complaint made by S in this regard concerns the matrix used by the Council as part of its process of deciding whether a child should fall within the remit of the Disabled Children’s Team. However, as indicated earlier, the evidence from the Council established that the matrix was not determinative. The Council remained willing to consider whether it should depart from its policy. For that first reason it seems to me that this head of complaint is bound to fail.

54. There is a second reason why it seems to me that this head of complaint must fail. It concerns the request made in the 2009 Assessment itself for comments by the appropriate parent/carer. The conclusion that S did not meet the test set out in the matrix was clearly set out in paragraphs [1] and [2] of the Analysis. The form went on to give L an opportunity to comment on that conclusion. As mentioned earlier, it is contended that L had good reason to decline to take this course. Whether that is so or not, however, there can in my view be no doubt that the offer was genuinely made.

55. Putting those matters to one side, the argument advanced on behalf of S in my view simply does not arise under the terms of the statute. The broad general purpose of the statute is to ensure that those suffering from a relevant disability are not unjustifiably treated less favourably than those fortunate enough not to be subject to that disability. The purpose of the matrix is to identify a fair and consistent basis for deciding when it is that children suffering from a disability should fall within the remit of the Disabled Children’s Team. It is not a question of denying S access to a service which is only offered, or offered more readily, to those who are not disabled.

Other complaints in the amended grounds
56. The oral submissions on behalf of S did not advance the third complaint in the amended grounds – the suggestion that there had been procedural unfairness. This was a sensible decision, for there was no basis on which it could be asserted that L did not know the relevant criteria. There were other matters in the amended grounds which were not referred to in the oral submissions on behalf of S. In the absence of reference to them in oral submissions I do not consider it necessary to say anything more about them in this judgment.

Adequate alternative remedy
57. The Council vigorously maintained that permission to apply for judicial review should be refused because there was available to L an adequate alternative remedy but she had not pursued it. The point was put in this way at paragraph 26 of the Council’s skeleton argument:

Judicial review is a remedy of last resort. Where an adequate alternative remedy exists that should be exhausted first. In the present case, there is such an adequate alternative remedy namely a complaint pursuant to the Children Act 1989 Representations Procedure (England) Regulations 2006. The Claimant’s mother is clearly aware of this procedure as she has utilised it in the past. The Claimant’s mother did not make any attempt whatsoever to resolve her concerns about the [2009] Assessment either informally as she was invited to do or formally by a way of complaint.  No adequate explanation is provided for the Claimant’s and/or [L’s] failure to pursue such adequate alternative remedies.  In such circumstances, permission should be refused, see R(Cowl and others) v Plymouth CC [2001] EWCA Civ 1935 at para 27.

58. It was acknowledged on behalf of S that the Cowl case made it clear that lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable. Nevertheless it was asserted on behalf of S that there were good reasons for ignoring the request in the 2009 Assessment for “Parents/Carer’s comments”, and that the complaints procedure would have been pointless. The 2009 Assessment had resulted in no different decision from that in the 2008 Assessment despite a great deal having changed in S’s life. It was acknowledged that the complaints procedure had been invoked in relation to the 2008 Assessment, and had resulted not only in parts of the complaint being upheld, but also an apology from the Council in respect of a matter where the independent person adjudicating upon the complaint had not upheld the relevant part of the complaint. However, it was said that a letter sent on behalf of S in September 2008, before the complaints process was completed, had been ignored in the 2009 Assessment. Moreover, stressed Mr Friel, the present case illustrated a national difficulty. He referred to the passage from Clements & Thompson cited earlier, and asserted in his written reply:

The fact that this is a national problem and is dealt with in a leading textbook in the field indicates that this is a point of importance to the public and should be considered by the higher courts.

59. These submissions on behalf of S in my view missed the point of the complaints procedure. It is there to provide a speedy, informal and cheap method of resolving disputes. Once L had had a chance to consider the 2009 Assessment with those advising her, any points which L wished to make should have been set out in the “Parents/Carer’s comments” section of the form or in correspondence. If there was an assumption by those advising L that doing this would serve no useful purpose, or that the complaints procedure was pointless, then in my view that assumption was utterly wrong. As Mr Friel himself acknowledged, there had been major changes in the factual position since the 2008 Assessment. If the Council had failed to appreciate the significance of these changes, and L wished to go straight to a dispute resolution process rather than canvass matters in correspondence, then the complaints procedure was the appropriate route by which to notify the Council of points of dispute and to seek to have them resolved. The complaints procedure had the further advantage that it could be expected to result in clarification on the part of the Council of its position in relation to each point of dispute, clarification which might well lead L’s advisers to explain to her that on some or indeed all of the points there was no good ground for challenging the stance of the Council.

60. Nor in my view does it make a difference that the argument under the Disability Discrimination Act was said to be of national significance. First, that argument had never been put to the Council and thus no dispute in relation to it had ever been crystallised. Further, as the extract from Clements & Thompson explains, whether or not there is a valid point to be made depends on what has happened in the individual case. It could not be assumed that the suggested point of national importance would necessarily need to be litigated.

61. For these reasons I conclude that the Council is right to say that L had an adequate alternative remedy which she should have followed. For that reason alone I would refuse permission to apply for judicial review in this case. I add that there was a complete failure to comply with the pre-action protocol in relation to the 2009 Assessment, and no attempt whatever to seek to avoid litigation. This, in my view, would also warrant peremptory refusal of permission. There was never any adequate opportunity for the Council to consider and respond to points of dispute before these proceedings were launched. Nor did S’s legal team approach the matter in the way mandated by the Cowl decision.

62. A first answer given on behalf of S is that there was no delay. The judicial review proceedings, it was said, were merely part of a two year history of successive complaints by L which the Council had failed to deal with adequately. I cannot accept this submission. It is true that L made complaints about the position prior to the 2009 Assessment. Once the 2009 Assessment had been produced, however, the Council had taken a fresh decision. If L wished to challenge that decision then she was required to act promptly. It is true that the judicial review proceedings were brought within the 3 month time limit, but it is trite law that the time limit does not mean that intending claimants are released from the obligation to act promptly.

63. It was then suggested that delay should not count against S because S’s case was exceptional. Far from being exceptional, however, S’s case is in my view similar to many others where parents or carers disagree with assessments made by a local authority.

64. Third, it was said that L lacked financial resources, and had to wait until legal aid could be provided. I would have had sympathy with this submission were it not for the fact that the course of action taken on behalf of S was one which kept the Council completely in the dark. Once the 2009 Assessment had been hand delivered to L there was nothing whatever done by or on behalf of L to give the Council any inkling that judicial review proceedings were under consideration. In those circumstances I do not think it would be right to say that delay was excused merely because time was required in order to obtain legal funding.

65.For the reasons I have given I refuse permission to apply for judicial review.