High Court dismisses legal action over alleged failure in care plans

The High Court has dismissed a judicial review brought against North East Lincolnshire Council over whether it should pay for past alleged failures in care plans for CP, a 22-year-old woman with complex and multiple disabilities which require round-the-clock care.

HHJ Graham Wood said changes arising from tribunal proceedings and negotiations between the woman’s parents and the council had seen the package of care, including the personal budget setting out the financial payments which would be made by the local authority, agreed prior to the resumed hearing before him and “on the face of it, there appeared to be no ongoing issue between the parties”.

He added: “However, the claimant has maintained a challenge to past care provision and the level of direct payments, and seeks a variety of remedies, including the quashing of previous assessments and care plans, their mandatory redetermination, and declarations of unlawfulness. It is acknowledged that the relief sought is intended to underpin potential compensatory claims in relation to asserted past failures.”

The judge said at the heart of the dispute was the cost of CP’s attendance at Fix n’Kiks, which he described as ”part of Disability Active, a charity controlled by the claimant's father and mother”.

Giving judgment in CP v North East Lincolnshire Council [2018] EWHC 220, HHJ Wood said the issues before him came down to deciding if North East Lincolnshire act unlawfully where it did not address the social care aspect of special educational provision, or the cost of any special educational needs placement, when there was an outstanding appeal to the First Tier Tribunal under section 51 of the Children and Families Act 2014 in relation to those matters.

He had also to decide whether the council lawfully discharged its duties under the Care Act 2014 and the Children and Families Act 2014 towards the claimant in respect of earlier care plans and if not, could CP challenge this by judicial review, bearing in mind there was no present objection to the care plan/direct payment, and no issue going forward which the court was being asked to determine.

Additionally the court had to consider whether there had been any breach of Article 2 of the First Protocol to the European Convention on Human Rights (A2P1), and whether if the claimant was entitled to declaratory relief, did this give rise to a claim to monetary compensation by restitution or otherwise.

HHJ Wood concluded North East Lincolnshire did not act unlawfully when it did not address the social care aspect of special educational provision, as there was no obligation on it until the tribunal determination was made and that the council lawfully discharged its duties under the Care Act 2014 and the Children and Families Act 2014 save in one limited respect. There had also been no breach of A2P1.

Mark Smulian