P v London Borough of Hackney

A local authority may adopt a policy favouring family-based care, provided it remains willing to consider residential placement where the individual child’s needs require it. Judicial review examines legality, not the merits of the welfare decision. A court must not substitute its own assessment for that of the primary decision-maker unless the decision is unlawful, including because it is irrational. Direct payments under Children Act 1989 s 17A require the recipient’s consent before payment is made, but the authority may offer them. The authority must assess whether the proposed payment reasonably covers the cost of the service, including relevant insurance or indemnity arrangements.

P, a twelve-year-old autistic child, challenged assessments and a care plan prepared by the London Borough of Hackney. His mother sought a residential school placement, while Hackney considered that his needs could be met through attendance at his existing school, respite care and other support.

The claim alleged that Hackney had unlawfully fettered its discretion, acted irrationally in refusing to fund residential education, proposed direct payments without the mother’s consent, failed to specify the proposed respite provision and unreasonably continued to consider care by the child’s grandmother.

1. Residential placement policy. Hackney had power to fund a residential school placement and could not apply an inflexible policy against such placements. Its policy, however, stated that residential care could be a positive choice for a small number of children and did not require mechanical preference for family care. The evidence, read as a whole, showed that individual circumstances were considered. The fettering challenge therefore failed.
2. Rationality. Judicial review is concerned with legality and does not involve the court making its own assessment of the child’s best interests. The March 2007 assessment recorded the mother’s views, considered the risks and benefits of residential care, assessed the child’s relationship with his mother, considered his experience at school and identified proposed support. The care plan was sufficiently developed and was materially different from the defective assessment considered in R (LH and MH) v London Borough of Lambeth [2006] EWHC 1190 (Admin). Hackney’s conclusion that residential placement was not required was not irrational.
3. Direct payments. Section 17A of the Children Act 1989 makes direct payments dependent on the recipient’s consent. The 2003 Regulations were to be read consistently with that statutory condition. Hackney was not required to make payments against the mother’s opposition, although it could properly offer them. The authority also had to estimate the reasonable cost of securing the service, including possible insurance, indemnity or other arrangements protecting the mother from liability.
4. The evidence did not establish that the proposed payment was insufficient, that the mother’s objections were unreasonable, or that Hackney had unlawfully failed to specify the respite provision. The application for judicial review was dismissed.

Not stated in the judgment.