R (ET) v (1) Islington LBC (2) Essex CC

Summary: This judicial review decision in the context of the assessment of a risk posed to children by a sexual offender merits brief mention as shedding a light (by analogy) upon the approach that the Administrative Court might take in relation to similar issues in respect of incapacitated adults.

The Claimants (three children) challenged an assessment of the risk posed to them by a man about to be released from imprisonment for sexual offending. The claim failed, but for present purposes, the relevant part of the judgment is that in which Cranston J analysed the approach that he was required to take to assessing the lawfulness of the risk assessment. At paragraphs 24 ff he noted as follows:

"24. In community care cases the Wednesbury test is normally applicable (see R (Ireneschild) v Lambeth LBC [2007] EWCA Civ 234, (2007) 10 CCLR 234 and Pulhofer v Hillingdon LBC [1986] AC 484). R (L) v Leeds City Council [2010] EWHC 3324 was a community care case involving the needs of a 14-year-old girl suffering from cystic fibrosis. The council had refused a request to provide a treatment room in her home. Langstaff J held that the intensity of review in that case, given the profoundness of the impact, would be judged objectively and would be heightened.

25. That approach was recently adopted by the Supreme Court in R (KM) v Cambridgeshire County Council, National Autistic Society and others intervening [2012] UKSC 23 [2012] PTSR 1189. That was a community care case where the issues were the local authority's method of calculating the claimant's personal budget under the Chronically Sick and Disabled Persons Act 1970 and whether the council's reasoning in reaching its conclusion was sound. In the course of the judgment, Lord Wilson (with whom Lords Phillips, Walker, Brown, Kerr and Dyson agreed) said this:

'36. I return at last to the appellant's twin challenges to the lawfulness of Cambridgeshire's determination to offer him £85k. I agree with Langstaff J in R (L) v Leeds City Council, [2010] EWHC 3324 (Admin), at para 59, that in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. Mr Wise also validly suggests that a local authority's failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in Page 15 which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer. On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court; and some regard must be had to the court's ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular type of case. So the court has to strike a difficult, judicious, balance.'

26. In my view, the intensity of Wednesbury review is also heightened under the Children Act 1989 in circumstances like the present, where the consequences of the council falling into error is the possible sexual abuse of children and young people. The profundity of the impact, to use that phrase, is equivalent, indeed potentially greater, than in community care cases such as R (KM) v Cambridgeshire County Council. In my view, a notion of heightened review does not undermine the Wednesbury test. The court is simply saying that the public authority must exercise its discretion with a due appreciation of its responsibilities. In effect, given the context, the public authority must tread more carefully than usual. Heightened review calibrates Wednesbury unreasonableness to the matter at issue."

Comment: The precise delineation between the Court of Protection and the Administrative Court remains difficult. As ET makes clear, there is no rule that merely because the individual at the heart of the challenge is a child the Court will exercise a heightened degree of scrutiny. The same applies in respect of incapacitated adults. However, because (as with children, albeit not necessarily for the same reasons) incapacitated adults are likely to be particularly vulnerable to the consequences of decisions taken by authorities in the discharge of their public law obligations, it may very well be - at least in situations analogous to those arising in ET - the Administrative Court will be open to arguments that the gravity of the consequences give rise to a heightened standard of review as to whether the authority in question has acted lawfully.