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Case Information
Filed
2023-03-07
Docket
44 entries
Disposition
dismiss
Parties
Plaintiff
The King On The Application Of
(1) Zb
(2) Db
(by Their Mother And Litigation Friend Princess Bell)
Defendant
London Borough Of Croydon
Lawyers
Docket Entries
- This claim is one of a number of sets of proceedings brought by the Claimants ("ZB" and "DB"), who are profoundly disabled children aged 14 and 12 respectively, and/or their mother ("Ms Bell") seeking to secure adequate and lawful treatment by way of housing, education and social care provision.
- The distressing circumstances in which the family has found itself were eloquently described by Hill J in another one of the claims, whereby Ms Bell complained of the inadequacy of housing provided by the London Borough of Lambeth ("Lambeth") at 388 Lower Addiscombe Road, Croydon (that is, in the area of the Defendant ("Croydon")). She stated, in R (Bell) v London Borough of Lambeth [2022] EWHC 2008 (Admin) (§§5-16):
- Hill J proceeded to make a mandatory order, directing that Lambeth secure suitable accommodation for the Claimant under section 193(2) of the 1996 Act by no later than 12 weeks from the date of the order. In reaching that conclusion, she made the following relevant findings on the evidence:
- Lambeth responded to Hill J's Order by offering Ms Bell alternative accommodation at 322 Norbury Avenue, Croydon. She has objected to its suitability and further proceedings on that subject are pending before the County Court. I have been provided with some of the materials generated by those proceedings, including a recent report by Croydon's paediatric occupational therapist, Erica Blatchford Geffen, dated 10 January 2023 which concluded that "it is clear that the property does not meet the family's long term needs" and that it does not meet all of the family's essential short-term requirements either, including a bathroom which is accessible to DB. It is clear that there may be, at the least, difficult issues to be resolved regarding the suitability of 322 Norbury Avenue. Most recently, and subsequent to the hearing before me, on 27 January 2023, 322 Norbury Avenue suffered significant flooding damage due to a burst cold water tank. It is therefore uncertain whether that property will continue to be offered by Croydon to Ms Bell.
- The present claim was issued on 30 June 2022 seeking, in summary, the following relief by way of final orders:
- It can be seen that a principal objective of the present claim was to secure the placement of DB and ZB at the CTS, a non-maintained special school in Tadworth, Surrey which supports children and young people aged 2-19 who have a wide range of special needs. Croydon has refused to agree to DB and ZB being educated there, essentially because of the cost of that education, and has maintained that they should attend Linden Lodge School ("LLS") in Wandsworth, a community special school for children with visual and sensory impairments, as day pupils.
- Shortly after proceedings were issued on 1 July 2022, Croydon agreed to accommodate DB, pursuant to s. 20 of the Children Act 1989, at the Children's Trust ("TCT") and to refer him to be assessed for a residential placement there (which was conditional upon Ms Bell's agreement). TCT operates the CTS, and is located on an adjacent site to the school. It offers care to children with special needs, including by way of residential placements. It can make limited educational provision for children but is not itself a school. Croydon's position was that TCT could be a suitable place for DB to live in the short term, but that he should be educated at LLS and so transported to and from LLS each day. In the longer term, Croydon envisages that DB should return to live with Ms Bell, in suitable accommodation provided by Lambeth.
- In his Order dated 28 July 2022 granting permission for judicial review, Bennathan J granted interim relief requiring Croydon also to refer ZB for a short-term placement at TCT, for 12 weeks, or any lesser period agreed by Ms Bell (§3). In the event, both DB and ZB moved into TCT on 2 November 2022. ZB's 12-week placement ought therefore to have extended to 25 January 2023, and that date was confirmed in a further order of interim relief made by Richard Clayton KC on 15 December 2022. Mr Clayton KC had been due to hear the final hearing of this claim on 29-30 November 2022, but found that significant further information, including about the progress of the children's placement at TCT, was required and he adjourned the hearing to 18 January 2023, with directions for further information to be provided to the Court.
- Croydon had agreed not to terminate the children's placements until (at the earliest) 8 February 2022, but following the hearing before me it undertook to the Court that it would not terminate the placements until, at the earliest, 14 days after I had handed down my judgment. Both children therefore remain at TCT, are receiving some education (for two hours per day) and, I am told by Ms Bell, and accept, they are progressing well in their placements. Ms Bell and her younger son have been able to stay at TCT, initially in order to help DB and ZB settle in but they have remained there, having recently been evicted from 388 Addiscombe Road and having refused to live at 322 Norbury Avenue.
- Croydon's position remains that both children should be educated at LLS and transported to and from there each school day. Pursuant to s. 37 of the Children and Families Act 2014 ("the 2014 Act"), it has compiled Education Health and Care ("EHC") Plans for both children, dated 22 April 2022 (DB) and 17 May 2022 (ZB), in which LLS is named as their place of education and provision is set out for their ongoing care, on the footing that they are living at home with Ms Bell ("the EHC Plans"). Ms Bell strongly objects to the EHC Plans and, as I have noted, sought orders from this Court which would have required changes to be made to their EHC plans, notably to substitute CTS as their place of education.
- Pursuant to s. 51 of the 2014 Act, Ms Bell had a right of appeal to the First-Tier Tribunal against the contents of the EHC Plans, including (for example) the naming of LLS in the plans. Appeals were lodged against both Plans on 13 June 2022 and they are "extended appeals" which mount a wide-ranging challenge to the contents of the Plans. Ms Bell appeals against the statements of the children's special educational needs (section B of the EHC Plans), the education, health and social care provision which is to be made for the children (section F) and the identification of the school where they will be educated (section I) and contends that consequential amendments may be required to other sections of the EHC Plans. For its part, Croydon opposes the appeals but accepts that significant parts of the Plans require updating as they were based upon assessments some of which dated back to 2021.
- The FTT has power to make binding orders regarding the educational contents of the EHC Plans, including the statement of the school where the children will be educated (see reg. 43 of the Special Educational Needs and Disability Regulations 2014 (SI 2014/1530)) and may, for example, order Croydon to make amendments to the Plans in this regard. So far as health and social care provision is concerned, the FTT has power to make non-binding recommendations to Croydon as to the identification of the children's health and social care needs and the provision which ought to be made in order to cater for those needs (see the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017, SI 207/1306). The FTT is currently due to hear the appeals on 20 and 21 March 2023.
- The Claimants accepted shortly prior to the hearing before me – by §60 of Ms Bell's third witness statement - that the FTT and not the Administrative Court was the appropriate forum for the resolution of disputes regarding the contents of the children's EHC Plans. That position was maintained in oral argument by Mr Presland, who appeared for the Claimants. He did not, accordingly, pursue the quashing order (§5(1) above) and the mandatory orders (§§5(3)-(4) above) which were directed at the children's placement at CTS and care arrangements to accompany their placement. The Claimant's revised position was, in my judgment, entirely correct, and in accordance with the ruling of Kerr J in R (Q) v Staffordshire CC [2021] EWHC 3486 (Admin), §§59-60. The FTT is the specialist forum for the disputes as to which school they should attend, and other disputes regarding appropriate health and social care provision for them, and will hear factual evidence in order to resolve those disputes. The FTT can only make non-binding recommendations in relation to health and social care provision but it was not suggested that this should make any difference to the priority to be afforded to the FTT proceedings, not least because the appropriate health and social care provision for the children is entirely dependent upon whether they are to be educated at CTS, or at LLS, or somewhere else. I note that when granting permission for this claim, Bennathan J emphasised (§4) that the Administrative Court would be slow to interfere with the specialist FTT but regarded it as arguable that the Court should intervene during the period prior to the FTT's decision. For these reasons, I would have refused to grant the quashing and mandatory relief originally sought by these claims, in the exercise of the Court's discretion, even if they had been pursued.
- I also conclude that it would be inappropriate for the Court to proceed to determine the claims for declarations that Croydon had been in continuing breach of its duty to secure lawful arrangements for the education of, and social care support for, the children (§5(2) above). That is for three reasons. First, there is a substantial overlap between the issues which are to be determined by the FTT and the issues raised by these claims for declarations. With regard to education, for example, a critical component of the claim for a declaration is that the children should not have been placed at LLS and should have been placed at CTS; and, as I have mentioned, the appropriate health and social care provision is substantially dependent upon the legality of Croydon's choice of school. In Q, Kerr J noted that an appeal to the FTT, "is normally the right way to determine a dispute of the present kind, rather than a judicial review claim asserting a breach of section 19 [of the Education Act 1996]" (§62). That section contains the duty to make arrangements for the education of children with special educational needs who might not otherwise receive it and is the provision with regard to education which is primarily relied upon by the Claimants in the present case.
- Second, the declarations which are sought concern historic alleged failings of Croydon which have either been superseded, as a result of the placement of the children at TCT, or will be superseded by fresh decisions and fresh provision following the ruling of the FTT. It is not usually the concern of judicial review to investigate historic failings which have already been, or are soon to be, put right (or at least overtaken by fresh decisions which may be subject to fresh, and different, challenge). As Chamberlain J put it in the recent case of R (AA) v NHS Commissioning Board [2023] EWHC 43 (Admin), §100:
- The Claimants do seek a compensatory remedy in the present case, and a "backward-looking" analysis will be necessary when I come to consider that claim. But the claims for declarations do, in my view, come within the general rule identified by Chamberlain J. For these first two reasons I would again have refused to grant relief in the exercise of the Court's discretion.
- Third, whilst it would be artificial to consider Croydon's compliance with its statutory duties without taking account of the significant changes in the children's situation since the issue of proceedings, to do so would fall foul of the well-known injunction against "rolling judicial review". In order to maintain procedural discipline, the higher courts have cautioned against entertaining challenge to decisions and events which occurred after the issue of proceedings: see, for example, R (Dolan) v Secretary of State for Health [2021] 1 WLR 2326, §118:
- The claim for a quashing order regarding Croydon's proposal that DB be accommodated in foster care (§5(1) above) has also been overtaken by events. That proposal has not been pursued for some considerable time, DB is currently accommodated at TCT and there was no suggestion at the hearing before me that foster care for DB would be pursued by Croydon in the future.
- Finally, one of the Claimants' pleaded grounds is that Croydon had failed to engage in appropriate inter-agency cooperation with Lambeth, resulting in delays in making appropriate provision for the Claimants. No specific relief was sought in relation to that alleged failure and it again seems to me to fall into the category of historic events which have been superseded (it not being suggested that Croydon was in continuing breach of its statutory duties in relation to cooperating with Lambeth) or, so far as relevant, will be addressed in the backwards-looking analysis of the Claimants' Convention rights claims.
- What remains for determination by the Court are the following claims:
- I address these claims first, as they provide some relevant context for the claim that the children should not be moved pending the determination of the FTT appeals.
- Article 2P1 provides, so far as material:
- In A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363, Lord Bingham stated (§24):
- Lord Hoffmann formulated the Article 2P1 principles in slightly different terms but there has been held to be no material difference between their approaches (see A v Essex County Council (National Autistic Society intervening) [2011] 1 AC 280, §§12, 129).
- In that case, Lord Kerr JSC, who was part of the majority for these purposes, explained how breach of Article 2P1 may arise (see §161, and Lord Brown JSC's agreement with his explanation in §128):
- Both Kerr J in Q and Ben Emmerson KC (sitting as a Deputy High Court Judge) in R (E) v Islington LBC [2018] PTSR 349 applied the criteria set out by Lord Kerr in §161 of A in determining whether there had been a breach of A2P1 in those cases. In Q, there was no breach of A2P1 where the claimant had been out of mainstream education for 15 months, from September 2020, but had received "education" at a temporary facility which had benefitted him and during which time his needs were assessed "diligently and professionally" (§77), to the point where he was able to attend what Kerr J described as "a generic special school" (§79). An appropriate school was identified in November 2021 and the claimant started there in January 2022. Kerr J rejected criticism that the defendant's response had been "lethargic" (§82) and described the handling of Q's case as "a credit to Staffordshire rather than a disgrace" (§83).
- In E, Mr Emmerson KC held that a failure to provide the claimant with access to mainstream education (of the kind ordinarily provided by the state) for 50% of the 2015-2016 school year (20 out of 39 term-time weeks (and nine weeks of school holiday)) "amounted in her particular case to a denial of the essence of her right to education for that year" (§86). He emphasised the particular facts of the case:
- Decided claims for breach of A2P1 are few and far between and the outcome of those cases is instructive. But every case is different, and I must apply the "highly pragmatic" test to the specific facts of the present case.
- In the present case, the material facts seem to me to be as follows:
- Making all due allowances for the "weak" character of the A2P1 right and the difficulties which will ordinarily arise in establishing that a child has been denied education in breach of that right, these facts disclose, in my judgment, that Croydon acted in breach of the A2P1 rights of DB and ZB. The children were unable to attend mainstream education and there were only a handful of schools where education could realistically have been provided to them. It has been Croydon's committed view, maintained in the face of Ms Bell's advocacy for CTS, that they ought to attend LLS, where they were enrolled at the time that Croydon assumed statutory responsibility for their education in December 2020. Knowing that the children were not in fact attending LLS, nor receiving alternative educational provision (save for a handful of virtual sessions which nobody has contended were adequate "education"), Croydon's efforts to ensure that they were able to attend, and did attend, LLS can fairly be described as "completely ineffectual" (to use the phrase of Lord Kerr in A v Essex).
- As of 19 April 2022, more than 16 months after they moved into Croydon's area, the children were still unable to attend LLS for lack of adequate transport and accompanying escort arrangements. Croydon was still disputing its responsibility for providing an escort for ZB (which was only accepted after these proceedings were issued) and no solution at all had been proposed for DB to get to and from LLS. Croydon had refused to make any educational provision for the children because they were enrolled at LLS, whilst not taking the steps necessary to ensure that they could actually attend LLS. This would be a lengthy period for any child to be out of education but would have had a particularly significant impact on DB and ZB given their lack of social contact in their day to day lives. It is little short of heart-breaking to contemplate the plight of the children during this period, when they were housebound – and in DB's case confined to his bedroom - for weeks if not months on end.
- I do not hold Croydon solely responsible for this state of affairs. Lambeth had placed the family in wholly unsuitable accommodation, which rendered it significantly more challenging for the children to attend school but, contrary to Croydon's submissions, that fact does not absolve it of its own duties under A2P1. The delay in applying for transport to and from LLS was partly down to Ms Bell. Ultimately, however, once it became aware that the children were not attending school, Croydon had a primary responsibility to ensure that they did so, or at the very least that they were able to do so (see E, §82) and it was also aware that Ms Bell faced challenges with her own health and wellbeing which meant that she could not be left to her own devices in taking what were far from straightforward steps to facilitate the children's education.
- Against all of this, Croydon had very little to say in its defence. Its principal argument was that it "has been doing its best for [DB] and [ZB] in trying circumstances, with a view to them remaining with the family, having the assistance of professional care and having the education they need" (§60 of Croydon's Skeleton Argument for the 29-30 November hearing). I do not accept that Croydon's efforts to ensure that the children could attend school represented "its best"; if they did, then its best was not good enough to satisfy the requirements of A2P1.
- Croydon's period of breach of A2P1 commenced on 2 December 2020 when it assumed responsibility for the children. I place the end of Croydon's period of breach of A2P1 at 19 April 2022, which is the date upon which Croydon formally offered to refer the children to its home tuition service, which represented at least a realistic proposal for their education, albeit a temporary and far from satisfactory one. On one view, that is generous to Croydon. No detail was given on 19 April 2022 as to how much tuition was being offered or whether it would be in person or virtual, and it is unclear whether there was a waiting list or otherwise how quickly home tuition would have started. Eventually, as I have noted, the offer was refused by Ms Bell whom, I infer, feared that accepting home tuition would remove some of the pressure for Croydon to agree for the children to be placed at CTS. I do not criticise her for that, but I do not think that any sufficient reason has been provided as to why the offer of home tuition on a temporary basis was unsuitable, and not an adequate discharge of Croydon's A2P1 duties.
- The claim under Article 8 ECHR, the right to respect for private and family life, is more difficult for the Claimants. There is undoubtedly force in their central contention that the conditions in which they were living at 388 Lower Addiscombe Road, as described by Hill J and set out above, fell below the minimum standards required by Article 8 (by analogy with R (Bernard) v Enfield LBC [2003] HRLR 4), and that a public authority or authorities bore legal responsibility for that. The difficulty lies in establishing that liability should lie with Croydon rather than with, in particular, Lambeth, who placed the family in unsuitable accommodation and who are not before the Court. In cases where more than one public authority has, at least arguably, contributed to a breach of Convention rights, the Court must inquire as to which authority bore the primary duty to comply with the Convention (see Lord Hoffmann in A v Lord Grey School, §61).
- As the authority which provided the family with unsuitable housing, which was the immediate cause of DB's confinement and inability to attend school and to a lesser extent that of ZB, given the difficulties of navigating her wheelchair across the front of the property, primary responsibility might lie with Lambeth. Yet the Claimants have chosen not to claim against Lambeth in these proceedings nor to provide the Court with any evidence or argument directed to establishing how it could be said that Croydon rather than Lambeth bore primary responsibility (in the face of submissions from Croydon that it was the Claimants' housing, provided by Lambeth, which has caused the difficulties). In addition to the housing issue, there are factual questions as to how and when Lambeth passed on social services responsibility for the children to Croydon. That appears not to have happened immediately upon them moving into Croydon's area and there is evidence to suggest that it did not happen until late 2021. I would not, of course, find that Lambeth bore primary responsibility when Lambeth is not before the Court, but nor can I find, having regard to the limited materials before the Court, that Croydon bore that responsibility for any breach of the children's Article 8 rights. I therefore dismiss the Article 8 claim on the grounds that the Claimants have not established that Croydon bore primary responsibility for any breach of their Article 8 rights.
- The Claimants have submitted that a payment of damages is necessary to afford them just satisfaction for breach of their A2P1 rights. Croydon disputes this but relies on the same factors it relied upon in disputing liability under A2P1 – that it had been doing "its best" and that the children's plight was caused by their unsuitable accommodation. Neither of those submissions was sufficient to avoid liability for breach of A2P1 and they have no greater force as submissions against the award of damages.
- The Claimants seek a quantum of damages commensurate with the payments recommended by the Local Government and Social Care Ombudsman ("the Ombudsman") in cases where maladministration has resulted in a child missing out on education. As at January 2021, the Ombudsman usually recommended a payment of £200-£600 per month of missed education, the final figure taking into account factors including the child's needs, any educational provision made during the relevant period, whether additional provision can remedy some or all of the loss of education and whether the period was a significant one in the child's career. Croydon made no submissions as to the appropriate quantum of just satisfaction.
- I am conscious that I do not have all of the evidence which I would ideally wish to see before deciding upon quantum of damages. In particular, there is no detailed evidence going to the severity of the impact upon the children of being denied education and whether that impact is likely to be rectifiable in whole or in part by future educational provision. Both of these are important matters. I could in those circumstances remit the assessment of damages to a Master of the King's Bench Division, who could give appropriate directions for filing of further evidence. However, neither party suggested that course and I consider that it would be a disproportionate step given the relatively small amounts of damages which are at stake in this case, and that the Ombudsman's Guidance – the relevance and force of which was not disputed by Croydon – provides me with a plausible basis for calculating an award of compensation.
- In my judgment, the appropriate figure for compensation for each child is £10,000. This represents £600 per month for the 16.5 month period between 2 December 2020 and 19 April 2022. It places the awards at the upper end of the Ombudsman's scale, in light of the absence of any significant educational provision during the relevant period and the likely severity of the impact on the children given the very limited social contact which they otherwise had.
- The Claimants seek a final order from this Court prohibiting Croydon from terminating their placements at TCT before the conclusion of the FTT proceedings.
- There are undoubtedly powerful reasons why the children should not be moved until the FTT has decided whether they should be educated at CTS or LLS or elsewhere. In recent weeks they have had excellent care and some education, which had been lacking for some considerable time before they moved to TCT. They also have a stable and comfortable environment in which they may recuperate from surgery, which was due to have taken place very recently in DB's case, and is to be arranged for ZB in the near future.
- However, Croydon has not expressed an intention to move the children prior to the FTT's decision which could be evaluated against current circumstances. And I am not in a position to say that it would necessarily be unlawful for Croydon to decide in the future that the children should be accommodated elsewhere, particularly as one cannot be at all certain when the FTT proceedings will conclude (and noting the possibility of an appeal against its ruling).
- I therefore refuse to make a mandatory order requiring that the children be maintained at their current placements pending the outcome of the FTT proceedings. Any decision of Croydon to that effect will have to be judged in the light of circumstances at the time that it is made. Croydon will, I am sure, understand that it will need to have a powerful justification for causing further disruption to the children's lives during this interim period.
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