CP, R (On the Application Of) v North East Lincolnshire Council

A local authority must provide a personal budget sufficient to meet an adult’s eligible care and support needs. The budget must identify the authority’s cost of meeting those needs and must be transparent.

Provision may meet both educational and social care needs. Its classification as education or training under the Children and Families Act 2014 does not displace the authority’s parallel duties under the Care Act 2014.

A past breach remains justiciable where its financial consequences continue. A person may obtain public law compensation for payments which the authority was statutorily obliged, but unlawfully failed, to provide.

CP was a young adult with severe learning difficulties and extensive care needs. She attended Fix n’Kiks, a weekday facility operated by a charity organised by her father. From April 2016, the Council funded her personal assistant but omitted the facility’s attendance cost from her personal budget.

Separate tribunal proceedings established that CP required an education, health and care plan and that Fix n’Kiks should be named as her placement. The Council eventually agreed to fund the placement prospectively, but refused payment for the earlier period.

The Administrative Court dismissed CP’s judicial review claim in [2018] EWHC 220 (Admin), despite identifying a limited breach concerning her personal budget. The principal questions on appeal were whether the Council’s parallel social care duties continued during the tribunal proceedings and whether its historical breach justified monetary relief.

1. Appeal allowed. The Council had acted unlawfully by failing, from 11 April 2016, to include adequate payment for CP’s attendance at Fix n’Kiks in her personal budget. This breached section 26 of the Care Act 2014, its linked duties under sections 18, 24 and 25, and the statutory guidance.

2. Where eligible care and support needs exist, the authority must decide how they will be met, prepare a care and support plan and provide a personal budget. That budget must specify the authority’s cost of meeting the identified needs. It must also be transparent and sufficient to enable the person to exercise choice and control.

3. The educational and social care regimes impose parallel duties. Provision at a placement may meet both kinds of need. Treating social care provision that educates or trains a young person as special educational provision under section 21(5) of the Children and Families Act 2014 does not extinguish the authority’s separate obligations under the Care Act 2014. Nor could liability under section 26 be ceded to the First-tier Tribunal while education proceedings remained outstanding.

4. The judge had erred by treating the breach as limited or merely formal. A breach of statutory duty by a public authority is unlawful conduct and cannot simply be discounted. Section 26 is fundamental to the statutory care and support scheme.

5. The claim was not academic. The failure to fund the placement had a continuing financial effect because CP remained liable to the provider and out of pocket. Her claim was an orthodox public law claim for money which the Council had unlawfully failed to provide, rather than a private law damages action.

6. There was no conflict of interest merely because CP’s father was her litigation friend and had organised the charity providing the facility. The claim enforced CP’s rights, and there was no basis for treating the charity as anything other than an arm’s-length provider entitled to charge for suitable facilities.

7. The Council was ordered to compensate CP for the accrued cost of her attendance at Fix n’Kiks between 11 April 2016 and 17 November 2017.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 1614, unanimously allowed CP’s appeal and held that the Council must compensate her for the accrued placement cost between 11 April 2016 and 17 November 2017.

2. Administrative Court: In [2018] EWHC 220 (Admin), HHJ Graham Wood QC dismissed the judicial review claim, although he identified a limited failure concerning the personal budget.

3. First-tier Tribunal: Allowed CP’s first appeal and ordered the Council to make and maintain an education, health and care plan. In later proceedings, the Council conceded that Fix n’Kiks should be named as the placement, and the Tribunal ordered agreed amendments to the plan.