Residential placement

Is the first in a series of articles highlighting recent court decisions in the field of community care law, Vincent Sheils, community care legal adviser at Law Centre (NI), considers cases relating to choice of residential placement.

Although the majority of the cases considered in this series will be decisions of England and Wales courts, the decisions made can at the very least be considered as persuasive arguments when applying to the same or equivalent legislation in Northern Ireland or in a situation where a similar set of circumstances arises.

In the case of R on the application of Alloway (by his father and litigation friend) v Bromley LBC (2004) EWHC 2108 (Admin) the High Court held that the local authority’s decision on a residential placement for an autistic man of nineteen was unlawful as it had fettered its discretion by ruling out an alternative placement on grounds of costs alone and had not carried out a fair comparison between the various placement options including an accurate comparison of costs.

The service user (A) was a young man of nineteen with disabilities including profound autism, severe learning disabilities and suffered from petit mal epilepsy.

Whilst he was growing up, A had been placed by Bromley LBC at a boarding school in Dorset. It was accepted by all the parties to the case that he needed to progress to alternative year round placement designed for adults with learning disabilities and the dispute centred on what that alternative placement should be. In 2002, a Bromley social worker assessed A’s needs for community care services and recommended that A move to Hesley Village and College (Hesley) in Yorkshire. The recommendation was supported by A’s parents and his placement was costed at £3,725 per week. The social worker concluded by recommending that the placement begin in May 2003. Instead, A remained in boarding school with extra respite care provided for his parents during holidays.

In January 2004, the local council wrote to A’s parents to inform them that they would not pay for A to go to Hesley because it was not a ‘cost effective’ option. After Hesley had been rejected, some effort was then made to locate another placement.
In July 2004, the council wrote to A’s parents explaining that it had identified two suitable placements for A once he finished school in August. Hesley was not one of them. The parents were asked to choose which of the two they preferred and also informed that, if they chose neither, A would go to the Robinia Care Home in Horndean. The parents accepted neither and then, in a second letter written at the end of July, Bromley LBC informed A’s parents that it had accepted the offer of a place for A at the Robinia Care Home and that he could move there on 6 August.

A’s parents sought a judicial review on the ground that Bromley LBC had not considered whether there was any other accommodation that was suitable to meet A’s needs before rejecting the preferred accommodation. It may have been the case, they argued, that no other care home in the country would have been suitable to meet A’s assessed needs so that it would have been legally impossible for Bromley LBC to say the preferred home costs more than it would usually expect to pay for a home in which A’s assessed needs could be met. In addition, A’s parents argued that Bromley LBC had got their sums wrong and that the preferred accommodation was actually cheaper than Bromley LBC had thought.

The court found in the parents’ favour, holding that the defendant’s decision making was flawed. Hesley had been ruled out on grounds of costs even before viable alternatives had been identified and in this respect the defendant had fettered its discretion. There had been no informed decision based on a fair comparison of the various placement options including an actual comparison of cost.

Whilst the High Court quashed Bromley LBC’s decision to place A at the Robinia Care Home, it refused to order Bromley LBC to offer a place at Hesley. Bromley’s original decision might have been flawed, but decision making responsibilities continued to rest with it. Following a proper analysis and comparison of the options, the court suggested that Bromley may well be able lawfully to decide not to offer a place at the Hesley Village and College.

One of the key findings in this case, however remains that local authorities and trusts should not reject service users’ preferred accommodation on grounds of costs without considering whether other suitable accommodation is available.

The High Court, in the case of R on the application of Twomey acting by her litigation friend v Calderdale MBC, again revolved around issues concerning choice of care home.

Although the High Court held in this case that the local authority’s refusal to place a seventeen year old at the residential placement of her choice (again the preferred accommodation was Hesley) did not constitute a breach of its duty under the Children’s Act 1989, the equivalent of the Children (Northern Ireland) Order 1995. The court, however, laid down some guidelines to be followed when the question of choice of preferred accommodation arose.

The High Court held that, by virtue of the Children's Act, Calderdale MBC was required to give due consideration to the claimant’s wishes but that did not of itself impose an obligation to comply with them. On the other hand, if the local authority could satisfy its Children's Act duties by placing a child at either of two equally appropriate establishments, in the case of a child able to make sensible choices, other things being equal, section 20(6)(b) normally required to place the child at the establishment she preferred. If the local authority considered one establishment to be preferable to another but the other was not suitable and the child absolutely refused to reside at the local authority’s preferred establishment, then the local authority was not absolved from complying with its duties under Section 20 of the Children's Act. In such cases, it may have no choice but to place her in her preferred establishment.

Although the facts of this case are confined to these proceedings, the above general principles can be discerned and applied when considering trusts' obligation under the Children Order here in Northern Ireland.