T & Ors, R (on the application of) v London Borough of Haringey

Children Act 1989 duties do not generally require a local authority to provide continuing medical care which properly falls within NHS provision. The classification depends on the scale, type, purpose and risks of the care, including whether it is incidental to a social service and whether a social services authority can reasonably be expected to provide it. A comprehensive assessment of a disabled child’s needs does not make the local authority the default provider of every assessed service. NHS duties under the National Health Service Act 1977 are generally target duties. They may crystallise into specific duties through Convention rights, but only in exceptional circumstances. Resource-allocation decisions remain subject to rationality, proper consideration of individual circumstances and adequate reasoning, while retaining a wide area of judgment.

The claim concerned care arrangements for D, a young child with a tracheostomy requiring frequent suctioning and emergency tube management. Her mother sought additional night respite care and care enabling D to attend nursery. The claims were brought against Haringey London Borough Council, as social services authority, and Haringey Primary Care Trust, as NHS body.

The claimants argued that the Council’s duties under the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970 required it to provide the care, or to obtain assistance from the PCT under section 27 of the Children Act. Alternatively, they argued that the PCT’s NHS duties, Convention rights and assessments of D’s needs required additional provision. The central issues were whether the care was social care or medical care, whether any duty was individually enforceable, and whether the PCT had acted unlawfully by applying a benchmark of twenty hours’ care.

1. Claim dismissed. The Council had no relevant power or duty under section 17 or paragraph 6 of Schedule 2 to the Children Act 1989 to provide the disputed nursing care. The care addressed continuing medical consequences of D’s condition, involved potentially life-threatening risks, was medically supervised and required a carer to remain available for urgent intervention. Its nature and purpose were medical care for D, notwithstanding that it also enabled her mother to obtain respite.
2. The boundary between health and social care is one of degree. Relevant indicators include the scale and type of nursing care, whether it is incidental or ancillary to another social service, and whether it is of a nature which a social services authority can reasonably be expected to provide. The approach in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 was helpful and applied beyond the statutory context in which it arose.
3. The assessment duties in Schedule 2 did not make the Council the default provider of all needs identified. An assessment could properly include health, educational and other needs which fell to different bodies. Paragraph 6 imposed a target duty, not an individually enforceable duty, following R(G) v Barnet LBC [2003] UKHL 57.
4. Section 2(1)(a)–(c) and section 28A of the Chronically Sick and Disabled Persons Act 1970 likewise did not extend to this medical nursing care. The Court of Appeal’s decision in R (Spink) v LB Wandsworth [2005] EWCA Civ 302 established that, for children, the relevant CSDPA functions operated through Part III of the Children Act. Section 49 of the Health and Social Care Act 2001 therefore did not apply to exclude nursing care under the CSDPA, but that conclusion did not enlarge the underlying statutory provisions to cover the care here.
5. Section 27 of the Children Act did not assist. The Council had no relevant function in respect of this care. In any event, section 27 could not be used to transfer responsibility or compel another authority to perform a function which it did not consider to be its duty. The duty to co-operate was enforceable in principle, but the evidence of breach was insufficient.
6. The PCT’s duties under sections 1 and 3 of the National Health Service Act 1977 were target duties. The PCT had considered D’s circumstances, the available care, its resources and competing demands. Its provision of twenty hours’ care, together with seven additional hours available weekly, was sufficient to discharge any positive obligations under Articles 2, 3 and 8 of the Convention. The refusal of further care was not irrational, inflexible or inadequately reasoned.
7. Convention rights could in principle crystallise a target duty into a specific duty. That had not occurred. A decision-maker need not produce a formal response refuting every contrary assessment, but its decision must be reasoned and must consider relevant individual circumstances as well as any benchmark or policy. No relief was granted.

First-instance judicial review judgment. The judgment records no prior appellate decision in this litigation.