R (O) v London Borough of Hammersmith & Fulham
Summary: O was a child with complex care needs due in part to his severe autism. O's parents considered that O needed to reside and be educated in one location due to the difficulties he experiences with transitions from one environment to another. They identified an appropriate establishment, namely Purbeck View School in Dorset, but were prepared to consider similar alternatives. The Local Authority decided that O should attend a school near his home, Queensmill, and reside in a separate location. The residential placement initially proposed would be available for 38 weeks a year.
Proceedings for Judicial Review of the Local Authority's decision as to O's placement were issued on 11 February 2011. The decision was challenged on various grounds, including the ground that the only rational option was to accommodate O at Purbeck View School. A mandatory Order requiring the Local Authority to accommodate O at Purbeck View was sought. At first instance, the matter came before Blair J ([2011] EWHC 679 Admin). Mr Justice Blair accepted the submission put by Counsel for O that the standard of Wednesbury review was variable and that the case warranted an intense degree of review. On this basis, Blair J concluded that the decision was irrational as the Local Authority had placed too much weight on a decision relating to O's education taken by the First Tier Tribunal two years previously and had placed insufficient weight on the conclusion of its own core assessment that there was a need to minimise transitions. However, Blair J declined to grant the mandatory order on the basis that there were other options lawfully open to the authority. Blair J rejected an argument that local authority's decision was a disproportionate and unlawful interference with O's Article 8 ECHR rights or that in the alternative, the local authority was in breach of its positive obligations to promote the fulfilment of his Article 8 rights.
Both parties appealed this decision. In May 2011, prior to the appeal being heard, the Local Authority took a fresh decision and proposed a placement at Queensmill School with a residential placement at a children's home in Croydon 9 miles away which would be available 52 weeks per year. This was rejected by the parents. Rather than issuing proceedings for judicial review of the fresh decision, O's legal representatives indicated that they would leave it to the Court of Appeal to resolve the issues, a procedural course which the Defendant opposed.
The matter came before the Court of Appeal for consideration of both permission and the substantive hearing if appropriate.
O's appeal Black LJ held that in essence O's case was that the only way O's needs could lawfully be met was through a placement at Purbeck View. If that were not accepted, all the grounds of challenge would fail. O had presented a powerful case supported by expert evidence. The Local Authority did not challenge the suitability of Purbeck View School but did not consider that it was the best way to meet O's needs at present.
Black LJ concluded that "the difference of opinion between the local authority on the one hand and O's parents and their advisors on the other as to what is required to meet O's needs results from a different weighting of the various factors that must be considered. O's parents give priority to avoiding anything other than the inevitable moves each day between living accommodation and educational provision and to the complete integration of care that can occur when a single establishment is responsible for a child. The local authority gives priority to maintaining O's links with his locality and reducing the obstacles (non-existent in the family's view) that geography might present to contact with his family." Accordingly she was not persuaded that Purbeck View was the only placement currently available that would meet O's needs. The local authority's proposal was another way of meeting his needs. Neither proposal could be rejected as misguided, impractical or inappropriate. The choice between the two proposals depended on how one weighed the various factors.
Further, where a local authority simply chose one way of meeting a child's needs rather than another, it could not be said to have interfered with the exercise by the child or the parents of their right to respect for their private or family life. There was no breach of Article 8.
The Local Authority's Appeal The Local Authority had sought permission to challenge the decision of Blair J on the ground that he had erred in holding that the decision under challenge was subject to a greater intensity of review (The Queen on the Application of L v Leeds City Council [2010] EWHC 3324 (Admin)). Black LJ refused permission to appeal. Whilst this was a difficult issue, it had not been fully explored and should be left until another day. The remaining issues were purely of academic interest.
Comment: Although this is not a Court of Protection case, it is a useful reminder of the breadth of a Local Authority's discretion when proposing a placement pursuant to its duties to accommodate a child in need under the Children Act – a principle which is of wider relevance in the exercise of a Local Authority's discretionary powers. It further highlights the difficulties parties will encounter when arguing that there is only one rational option open to a Local Authority, even where there is substantial expert evidence in support of the preferred option, in cases where the Local Authority refuses to fund the preferred option, thereby circumventing the ability of the Court of Protection to influence its decision. Local Authorities will no doubt be comforted by Blake LJ's explicit recognition that in-house social services teams have important expertise in assessing the needs of children with disabilities.
