S, R (on the application of) v Leicester City Council

A local authority must reassess a person’s community-care needs before changing existing services. The assessment must have sufficient formality to ensure that the relevant features are properly considered. Under the National Assistance Act 1948 (Choice of Accommodation) Directions 1992, preferred accommodation must be maintained or provided where it appears suitable in relation to the person’s assessed needs and the other conditions are met. Suitability is not fixed and may change over time, but it must be evaluated against a proper assessment of present and reasonably foreseeable needs. A complaints investigation will not necessarily cure the absence of a formal reassessment, particularly where its focus or factual premises differ from the statutory issue.

S, an adult with autism, had lived for many years in residential accommodation in Sunderland funded by Leicester City Council. The Council decided that she should move to accommodation in Leicester. Following judicial review proceedings, the parties used the Council’s social-services complaints procedure. An independent investigator and a Stage III review panel concluded that the Sunderland accommodation was unsuitable, principally because it could not be adequately monitored from Leicester and did not provide direct access to specialist NHS services.

The Council accepted the panel’s recommendation. S challenged that decision, relying on the statutory assessment duty, the choice-of-accommodation directions, the complaints procedure, Article 8 of the Convention and alleged irrationality. The central issue was whether the Council could lawfully change the placement without a recent formal reassessment of S’s needs.

1. Decision quashed. The Council’s decision communicated on 20 November 2003 was not compliant with its statutory obligations and was quashed.
2. Section 47(1) of the National Health Service and Community Care Act 1990 required the Council to assess S’s needs and then decide, having regard to that assessment, whether those needs called for services. Paragraph 3(a) of the National Assistance Act 1948 (Choice of Accommodation) Directions 1992 meant that preferred accommodation had to be maintained or made available if it appeared suitable in relation to the assessed needs, subject to the other conditions in the Directions.
3. Suitability was not immutable. Accommodation suitable for an educational placement, or suitable at an earlier stage, might become unsuitable over a lifetime because of uncertainty of tenure, dependence on a limited number of carers, over-protection or the need for improved monitoring. Monitoring was important, but it was only one factor among several.
4. Before changing services for an existing user, the Council had to undertake a sufficiently formal reassessment. This followed from paragraph 31 of the Laming letter, to which the Council was required to have regard under section 7(1) of the Local Authorities Social Services Act 1970. The assessment process had to focus on S’s present and foreseeable future needs, rather than merely compare the two placements.
5. The complaints procedure did not cure the defect. The investigator had focused primarily on the suitability of the premises, not on S’s current and future needs. The Stage III panel also relied on the premise that S lacked access to specialist NHS services, although the evidence showed that she could access those services in Sunderland. The Council could not assume that the same conclusion would inevitably follow from a proper reassessment.
6. The panel was entitled to review the investigator’s report and draw its own conclusions from accepted primary facts. The distance between S’s accommodation and Leicester was not conclusive. Article 8 was engaged, but the decision was not in accordance with law because the statutory requirements had not been met. The court did not determine whether S should remain in Sunderland or move to Leicester.
7. The Council was required to reconsider how to proceed. Costs were awarded to S, subject to assessment.

This was a first-instance judicial review claim. Permission was granted by McCombe J on 27 February 2003, and the substantive dispute was subsequently considered through the Council’s social-services complaints procedure before the claim was determined by the Administrative Court.