Ll & Anor v London Borough of Merton

Judicial review does not permit the court to substitute its view for that of a public authority on a difficult welfare decision. Where the authority has considered the relevant evidence and information, the court may intervene only for a failure to consider relevant matters or irrationality.

Regulation 13 of the Arrangements for Placement of Children (General) Regulations 1991 did not impose a statutory annual maximum of 120 days’ respite care. It allowed qualifying short-term placements to be treated as one placement for regulatory purposes. Departmental guidance could support a policy against excessive respite care, but could not alter the regulation’s legal meaning. An understandable misunderstanding of the 120-day limit was immaterial where it could not have prejudiced the claimant’s case.

The claimants sought judicial review of the London Borough of Merton’s continuing decisions concerning the care arrangements for a severely disabled child. The child’s mother contended that the authority had failed to consider residential education as a care solution for the child and the wider family, particularly in light of professional evidence supporting that option.

The authority maintained that the evidence had been considered, but that it was entitled to prefer continued care at home with support. A subsidiary issue concerned whether Regulation 13 of the Arrangements for Placement of Children (General) Regulations 1991 imposed a 120-day annual maximum on respite care.

1. Judicial review claim. The application was arguable, but the substantive claim failed. The authority had considered the relevant evidence, including the CAMHS material, the family’s difficulties, the educational position and the competing benefits of residential and home-based care. The evidence showed a disagreement about the correct outcome, rather than a failure to take relevant matters into account.
2. The court will not intervene in a public authority’s welfare decision merely because another outcome might reasonably have been chosen. Intervention was justified only if relevant evidence or information had not been considered, or if the authority’s view was irrational. Neither ground was established.
3. Regulation 13. Regulation 13 applied where a child was placed in a series of short-term placements at the same place, no single placement lasted more than four weeks, and the total duration did not exceed 120 days in any 12-month period. It permitted the series to be treated as a single placement for the purposes of the Regulations. It did not impose a legal maximum of 120 days on respite care.
4. The 1995 amendment increased the relevant period from 90 to 120 days without changing the underlying meaning of the regulation. Departmental guidance was expressed in terms of a maximum number of placement days and encouraged restraint in the use of respite care. That guidance created a policy context, but could not convert the regulatory aggregation rule into a statutory ceiling. Local authorities remained responsible for formulating their own policy within the law.
5. Merton had treated 120 days as an absolute maximum. That was an understandable error in light of the guidance, but it was immaterial. If Merton had understood that additional respite care was legally available, it was more likely to have favoured additional respite rather than residential education. The error therefore did not affect the decision and provided no basis for quashing it.
6. Permission to apply for judicial review was granted in the rolled-up application, but judicial review was refused. The case was anonymised. No order for costs was made.