Council loses legal challenge over decision by integrated care board not to contribute towards costs of children's home placement

April 29, 2025

The High Court has rejected a council’s claim for judicial review in relation to a decision by the local Integrated Care Board (ICB) to decline to make a financial contribution towards the costs of funding a young person’s placement at a specialist children's home.

In Royal Borough of Kensington and Chelsea, R (On the Application Of) v NHS North West London Integrated Care Board [2025] EWHC 889 (Admin) , Neil Cameron KC, sitting as a Deputy High Court judge, rejected the claim on all seven grounds, concluding: “Even if the services provided were for the prevention of illness, and/or for the after care of persons who have suffered from illness, the Defendant was only obliged to provide such services as it considered were appropriate as part of the health service.

“The Defendant did not consider that it was appropriate to contribute to the placement at [the children’s home] as part of the health service, and none of the arguments advanced on behalf of the Claimant establish that its decision was unreasonable or irrational in the Wednesbury sense.”

The judicial review claim was pursued by Kensington & Chelsea in relation to a decision made by the NHS North West London Integrated Care Board to decline to make a financial contribution towards the costs of funding a placement for the young person ("BL") at a specialist children's home (“BH”).

BL was born in July 2007. She has various diagnoses including anxiety and ASD and suffers from problems of low-mood, self-harm, suicidal ideation, sensory processing, emotional dysregulation, and disordered eating.

The judge said that in June 2022, BL was admitted to the Chelsea and Westminster Hospital following police attending at her family home.

BL was assessed in the hospital by the Children and Adolescents Mental Health Service (CAMHS) team who reported that BL did not have acute mental health needs, and in their opinion was in a social care crisis.

Following a handful of further hospital visits, the local authority undertook a 'Child in Need' assessment, which concluded that BL was a child in need as a result of her behavioural support needs and autism.

BL was admitted to hospital again in July 2023 and deemed fit for discharge the following day. BL's mother indicated that BL could not return to the family home.

During the time when BL was in hospital, the ICB requested that the Positive Behaviour Support ("PBS") team support BL and the hospital staff.

In September 2023, BL was discharged from hospital to BH, a children's home registered with Ofsted.

The placement was arranged and funded by the council “pursuant to the provisions of the Children Act 1989”, the judge noted.

The council requested that the defendant ICB contribute to the funding of BL's placement at BH. The initial request was made in August 2023 and a further request made by an email the following month.

The council’s proposal was that the split be 66.6% local authority, shared equally between social care and education, and 33.3% health care.

In September 2023, the ICB’s Senior Delivery Manager responded stating that BL did not meet the criteria for 33.3% health care funding and offered to make a contribution of 5% towards the cost of the placement.

A request was made for a super extra-ordinary meeting to be convened to consider the council’s request.

In preparation for the meeting, the ICB’s Complex Placements Senior Delivery Manager conducted a review at the beginning of January 2024, with a further review being undertaken by the Defendant's Head of Service for Children and Young People.

The outcome of the review was recorded as:

"The review has clearly shown that the placement does not provide any form of specialist health support for [BL], and there is no evidence to support joint funding at this time."

At the super extra-ordinary meeting, the ICB re-stated its decision not to contribute to the cost of BL's placement.

Outlining the ICB’s duties, Mr Cameron stated: “The Defendant discharges its duty by commissioning universal services and by commissioning specialist healthcare services for individuals. That specialist provision includes NHS Continuing Health Care for adults ("Adult CHC") and Children's Continuing Care services ("Children's CC") for children.

“Children's CC is different to Adult CHC, as it is assessed differently, and has different criteria for eligibility. […] The key guidance document relating to Children's CC is the National Framework for Children and Young People's Continuing Care ("National Framework for Children").”

He added: “Where Children's CC is required this is usually provided as part of a package which is arranged jointly between an ICB and the local authority social services and education departments.

“The Defendant has been seeking to develop a local policy for North West London setting out how decisions relating to provision for children with complex care needs are to be made – which is in the process of being formulated.”

In its claim for judicial review, the council relied on the following grounds of challenge:

The defendant's approach to the definition of 'health needs' was irrational and/or unreasonable in that it did not recognise that BH played a crucial role in supporting BL's health needs which were not met by universal or specialist services.
The defendant's approach to the definition of 'health needs' was irrational and/or unreasonable in that it was limited to clinical need.
The defendant failed to or failed adequately to take into account the fact that a very specialist placement such as BH was required in order to facilitate BL's discharge from hospital.
The defendant had adopted a contradictory approach to funding BL's placement to that taken in other cases.
The defendant had failed to follow or adequately follow the National Implementation Plan for Learning Disabilities in respect of funding.
The defendant had failed to adhere to the recommendations contained in the Serious Case Review of 'David', which it had indicated it accepted in full.
The defendant failed to have regard to and apply the guidance given on health needs in the National Framework for Adults.

On ground 1, counsel for the claimant submitted that the services provided to BL at BH fell "within the ambit of section 3(1)(i) of the 2006 Act” as services preventing mental illness and a degree of after-care following a mental health crisis.

Further, it was submitted that BL's position was analogous to that of 'Jane' in the case of Manchester University Hospitals Foundation Trust v. JS (by her litigation friend MS) and Manchester City Council [2023].

Peter Mant, counsel for the ICB, submitted that the challenge was, in effect, “a challenge to outcome not to process”.

He submitted that the ICB was required to make a judgment as to whether it considered that the services provided at BH were appropriate as part of the health service. He submitted the judgment reached was “not unreasonable or irrational” as:

The relevant services were limited to general support and looking after of a kind routinely commissioned as social care.
The services could be provided by the claimant under section 17 of the 1989 Act.
The fact that BH provides structure and stability which is of general therapeutic benefit does not make the placement a health service.
A requirement to manage behavioural needs does not indicate there is a need for anything other than social care support.
Implementation of a Positive Behaviour Support [PBS] plan devised by a health commissioned service is part of the general role of social care staff not a health care function.
Reliance upon the Manchester case is misplaced as the judge in that case was considering and applying the definition of medical treatment in section 145 of the MHA 1983.
Even if the services provided at BH could be characterised as being for the prevention of illness the defendant had a discretion as to whether to meet those needs.

Discussing grounds 1 and 2, the judge said: “I accept Mr Mant's submission that the Claimant's reliance on the Manchester case is misplaced. At paragraphs 69 to 71 of the judgment HHJ Burrows was considering and applying the definition of 'medical treatment' in section 145 of the MHA 1983. That statute is not engaged in this case.

“By grounds 1 and 2 the Claimant seeks to challenge the exercise of a discretionary power to provide or fund services. That power is qualified in two ways. An ICB must make provision to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility. In the case of services falling under section 3(1)(i) of the 2006 Act, the duty is to provide such services "… as the board considers are appropriate as part of the health service, …".”

He added: “Even if the services provided were for the prevention of illness, and/or for the after care of persons who have suffered from illness, the Defendant was only obliged to provide such services as it considered were appropriate as part of the health service. The Defendant did not consider that it was appropriate to contribute to the placement at BH as part of the health service, and none of the arguments advanced on behalf of the Claimant establish that its decision was unreasonable or irrational in the Wednesbury sense.”

He rejected grounds 1 and 2.

Turning to ground 3 – that the ICB failed to or failed adequately to take into account the fact that a very specialist placement such as BH was required in order to facilitate BL's discharge from hospital – the judge noted that counsel for the claimant placed “particular reliance” upon the fact that when at BH, BL was on 2:1 supervision including waking night staff due to concerns about her mental health needs.

Considering this point, the judge said: “It is clear from the Review of the Joint Request for Funding conducted in January 2024 that the Defendant took into account the specialist nature of the placement at BH. The details of the services offered by BH are set out in the review document. For the reasons set out when considering grounds 1 and 2 in my judgment the Defendant considered the nature of the services provided at BH and came to a reasoned conclusion that it was not appropriate to arrange for their provision (or fund them) as part of the health service.

“The fact that BL received 2:1 supervision including waking night staff does not determine that the services provided were healthcare services. In coming to that conclusion the Defendant recorded in the review document the fact that BL was admitted to the Chelsea and Westminster Hospital in July 2023 and remained there until.... September 2023. It was further recorded that at the time that BL was in hospital, BL's mother could no longer continue supporting her at home.”

Dismissing ground 3, the judge found there was no failure to take into account that BL's placement at BH was required in order to allow her to be discharged from hospital.

The judge also rejected submissions that the ICB had adopted a “contradictory approach” to funding BL's placement to that taken in other cases, or that the defendant failed to follow or adequately follow the National Implementation Plan for Learning Disabilities in respect of funding (grounds 4 and 5).

Turning to ground 6, the judge said: “On behalf of the Claimant it is submitted that the Defendant failed to adhere to the recommendations contained in the Serious Case Review of 'David'.”

However, the judge noted that in advancing the ground of claim, the claimant:

had not identified the recommendations of the Serious Case Review which it was said that the defendant had not adhered to in this case;
had not identified how a failure to adhere to those recommendations which could give rise to administrative law error;
had not identified how any failure to follow those recommendations bore upon the defendant's decision made pursuant to section 3(1)(i) of the 2006 Act.

For these reasons, he rejected the challenge.

Finally, considering ground 7 – that the ICB failed to have regard to and apply the guidance given on health needs in the National Framework for Adults – the judge outlined Regulation 21 of the 2012 Regulations as follows:

"21.—(1) In exercising its functions under or by virtue of sections 3, 3A or 3B of the 2006 Act, insofar as they relate to NHS Continuing Healthcare, a relevant body must comply with paragraphs (2) to (11).

(2) A relevant body must take reasonable steps to ensure that an assessment of eligibility for NHS Continuing Healthcare is carried out in respect of a person for which that body has responsibility in all cases where it appears to that body that—

(a) there may be a need for such care; or

(b) an individual who is receiving NHS Continuing Healthcare may no longer be eligible for such care.

…

(12) In carrying out its duties under this regulation, a relevant body must have regard to the National Framework."

The National Framework for Adults is a framework relating to healthcare provision for adults.

Counsel for the defendant submitted that the ICB, when considering a case concerning a child, was not required to 'read across' or have regard to the National Framework for Adults when considering a case involving a child.

The judge said: “Mr Mant further submits that, even if the National Framework for Adults was material, regard would have to be had to the whole of the document. He submits that even if a person has 'health needs' that is not determinative of whether an ICB should make provision to meet those needs, as the decision on whether to provide services depends upon an assessment of whether the relevant person has a 'primary health need' as referred to at paragraph 55 of the National Framework for Adults.”

He added: “There are different and distinct framework documents relating to adults and to children. It cannot be said that the framework relating to adults was an obviously material consideration when making a decision relating to a child. For that reason, the Defendant did not err by failing to have regard to the National Framework for Adults.”

Concluding the case, Neil Cameron KC said: “For the reasons I have given the claim for judicial review fails and the application is dismissed.”

Lottie Winson