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Judge rules council and CCG failed lawfully to assess s.117 after care services for claimant

A discharge care plan approach (DCPA) written by the London Borough of Islington and North Central London Clinical Commissioning Group (CCG) was unlawful on nine points, the High Court has found.

In AK, (A Child), R. (on the application of) v The London Borough of Islington & Anor [2021] EWHC 301 HHJ Lickley, sitting as a deputy judge of the High Court, said applicant AK was entitled to an order requiring a new assessment.

AK said the council and the CCG failed to adequately assess and plan for her needs following her discharge from a secure psychiatric hospital pursuant to s117 of the Mental Health Act 1983.

She also sought permission to argue a secondary claim under s17 of the Children Act 1989.

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AK is aged 16 and suffers with autism and a range of severe mental health issues resulting from a serious sexual assault by a stranger.

After some months in the hospital she was due for discharge to a specialist residential placement, to which she subsequently moved at a cost of some £250,000 a year.

The judge said: “There is no dispute that there was an assessment however I am asked to consider whether that assessment was undertaken in accordance with the duties and responsibilities that both defendants owed to AK at the time in particular in relation to the…Mental Health Act 1983 Code of Practice.”

He found the DCPA was written or completed on the day of AK’s discharge from the secure facility and “does not adequately identify and thereby demonstrate by assessment the needs of AK, how to meet them and who is to do that”.

Among the failings identified by the judge were that a document dated for the day of discharge cannot have been discussed and considered “in good time” as required.

The DCPA also contained “some simplistic analysis and identification of the nature of AK's needs without the necessary precise, focussed and detailed manner in which those needs are to be met.

“There are broad aspirations without setting out in detail the practicalities for AK's day-to-day care and support. It is not thorough.”

HHJ Lickley found a lack of focus and detail in many aspects and said a reference in the section on education to there being no concerns relating AK's intellectual level “is contrary to the cognitive assessment and as was noted at many meetings AK had numerous issues with learning. That is a concerning omission”.

He did though dismiss the s17 Children Act 1989 claim, noting: “There is no obvious targeted decision that can be said to be unlawful in a public law sense.”

Michael Armitage of Monckton Chambers, who acted for the claimant, said: “The case is noteworthy because there is no previous reported case on the precise nature of the assessment and planning obligations under section 117.”

Mark Smulian

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