S, R (on the application of) v Hampshire County Council

Permission to seek judicial review should ordinarily be refused where an adequate alternative remedy exists and has not been pursued. A complaints procedure may be an adequate remedy even where the proposed challenge raises an issue said to have wider public importance.

A local authority may use threshold criteria or a policy to organise services, provided it remains willing to consider exceptional circumstances and does not treat the policy as determinative. An assessment must distinguish a child’s needs from the provision required to meet them. The court reviews the legality and rationality of the assessment, not its merits.

S, a disabled child with serious behavioural and mental-health difficulties, challenged Hampshire County Council’s 2009 core assessment. The assessment concluded that his needs were addressed by education and health services, that he did not meet the Disabled Children’s Team’s threshold criteria, and that no additional holiday services were required.

The claim alleged breach of statutory duty, irrationality, discrimination under the Disability Discrimination Act 1995, fettering of discretion and procedural unfairness. The Council contended that the claim was unarguable, out of time, procedurally defective and barred by an adequate alternative complaints remedy.

1. Permission refused. The existence of an adequate alternative remedy was sufficient, by itself, to justify refusing permission. The complaints procedure under the Children Act 1989 Representations Procedure (England) Regulations 2006 was speedy, informal and inexpensive, and should have been used before judicial review.
2. The Council had not unlawfully fettered its discretion. Its threshold matrix was not determinative, it remained willing to consider departure from its policy, and the assessment had involved the relevant team. The principle in British Oxygen Company Limited v Board of Trade [1971] AC 610 did not assist the claimant.
3. An assessment must distinguish the child’s needs from the provision required to meet them. The 2009 Assessment, read as a whole, identified the relevant needs and concluded that the residential placement and existing community provision were sufficient.
4. An assessment may be invalid if it assumes that a service will be available when it is clear that it will not be. That issue did not arise here because the residential placement was expected to proceed and the other references to future services were merely observations.
5. The rationality challenge failed. The Council had considered the relevant evidence, including parental capacity, self-harm and behavioural difficulties. The court was not entitled to substitute its own view. The conclusion was within the range of reasonable decisions available to the Council.
6. The discrimination challenge also failed. The matrix identified which disabled children should fall within the remit of a specialist team; it did not deny a service provided to non-disabled persons. The Council also remained open to comments and exceptional circumstances.
7. The claim was further defeated by failure to comply with the pre-action protocol and by delay. Compliance with the three-month limit did not remove the obligation to act promptly.