The Administrative Court rules that Croydon LBC breached the rights to education of two children who had significant and profound disabilities, making an award of £10,000 to each child by way of just satisfaction (human rights damages)
Decision: 7 March 2023
Before Jason Coppel KC (the Deputy Judge hearing this case in the Administrative Court)
The Claimants (ZB and DB) and/or their mother (Ms Bell) brought various public law claims directed at securing defensibly adequate housing, education and social care provision.
The Claimant was a single mother of 3 children, aged 14, 12 and 2. The Claimant had been diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder, depression, anxiety, obsessive compulsive disorder and asthma.
The Claimant’s older children, a boy aged 14 (DB) and a girl aged 12 (ZB) both had significant and profound disabilities including neurological conditions; they were registered blind, used non-verbal communication, were incontinent, fed by tube and used wheelchairs. As well as both of them having respiratory vulnerabilities and sleep disturbances, they also had other individual conditions impacting on them. DB had kyphosis, which caused him considerable pain and he had difficulty being placed in a sitting position. ZB had scoliosis and required home suctioning and oxygen saturation monitoring, as well as regular hospital admissions for respiratory illnesses.
In June 2020, Lambeth’s occupational therapist made a number of recommendations in relation to accommodation, as a result of the children’s needs and their full dependency on carers to meet all of their needs. In May 2021, the occupational therapist set out what she considered to be the “minimum level of suitability” for a property for the family, reiterating the need for ground floor living for both children as they were only able to access upstairs with a lift. The occupational therapist also set out the need for their own bedrooms due to the medical equipment each of them required.
In August 2020 the Claimant had applied to be accommodated by Lambeth under the homelessness provisions under Part VII of the Housing Act 1996. The family were placed in what was intended to only be interim accommodation at 388 Lower Addiscombe Road. The Claimant had stated the property was unsuitable for the children’s needs due to the inaccessibility and issues of mould and dampness. These issues were accepted by Lambeth and since December 2020, the damp had progressed, having worsened and spread further, which was confirmed by Lambeth’s surveyor in October 2021.
As well as the unsuitability of the property due to the inaccessibility, the Claimant set out that as a result of the unsuitability, both children’s surgeries had been delayed. Evidence provided set out that further delays to ZB’s surgery would cause deterioration in her condition and could impact on the effectiveness of the surgery.
Evidence had also been provided in relation to difficulties in moving the children, resulting in them being confined to the property and not having left since March 2021. Not being able to leave the property had also impacted on respite care. The children were also unable to attend school; referencing grounds in one of the other sets of proceedings, ZB had not attended school since the 12th November 2018. DB had not attended school since the 11th March 2020.
In another of the applications in relation to the housing, Hill J had made a mandatory order in August 2022, directing Lambeth to secure suitable accommodation for the Claimant under Section 193(2) of the 1996 Act by no later than 12 weeks from the date of that Order. This was based on a number of conclusions set out in those proceedings, including that the accommodation had been fundamentally short of what Lambeth’s occupational therapist had concluded was the “minimal” level of suitability, as well as falling short on several requirements. Further, the two older children’s physical health and development had been severely affected by their accommodation. Their already vulnerable respiratory health had been exacerbated by mould, rising damp, pest infestation and poor environmental air quality; the children’s surgeries had been delayed as a result of the unsuitability of the accommodation.
Lambeth subsequently offered Ms Bell alternative accommodation in Croydon, however this had been rejected by Ms Bell as being unsuitable.
The present claim before the Court was issued on the 30th June 2022, seeking the following relief by way of final orders:-
- Quashing orders regarding “the Defendant’s refusal to give lawful consideration to the placement of [DB] and [ZB] at the Children’s Trust School (“CTS”)” and “the Defendant’s decision to propose that [DB] be looked after separately from [ZB] alone in a foster placement.”
- Declarations that Croydon had been in continuing breach of its duty to secure lawful arrangements for the education of, and social care support for the children DB and ZB since they were housed in Croydon’s area in October 2020, or some subsequent date.
- A mandatory order that Croydon arrange for DB and ZB to be provided with a residential placement at the CTS.
- A mandatory order that Croydon provide a suitable care plan covering their transport to and from the CTS and ensuring that they could spend time in due course at weekends and during school holidays at the family home.
- A declaration and damages reflecting Croydon’s breach of the European Convention rights of DB and ZB under Article 8 ECHR (the right to respect for private and family life) and Article 2 of Protocol No. 1 to the ECHR (the right to education).
Deputy Judge Coppel stated “it can be seen that a principal objective of the present claim was to secure placement of DB and ZB at the CTS, a non-maintained special school in Tadworth, Surrey which supports children and young people aged 2-19 who have a wide range of special needs”. Croydon had refused this placement “essentially because of the cost of that education, and has maintained that they should attend Linden Lodge School (“LLS”) in Wandsworth, a community special school for children with visual and sensory impairments, as day pupils.”
Croydon subsequently agreed to accommodate DB shortly after proceedings were issued pursuant to s.20 of the Children Act 1989 at the Children’s Trust (“TCT”) and refer him for a residential placement, conditional upon the agreement of Ms Bell. TCT runs the CTS and is located on an adjacent site to the school; it offered care to children with special needs, including residential placements. Although it can make limited educational provision for children, TCT is not a school. The judge set out that Croydon’s view was TCT could be suitable for DB in the short term. However, in the longer term, its stance was still that DB should be educated at LLS and be transported daily to and from LLS, returning to live with Ms Bell, in suitable accommodation which Lambeth would provide.
The judge referred to a previous Order when Bennathan J., in granting judicial review on the 28th July 2022, also granted interim relief which required Croydon to also refer ZB for a short term placement at TCT, for 12 weeks or any lesser time, as agreed by Ms Bell. Following this both DB and ZB moved into TCT on the 2nd November 2022.
This matter was due to come back to the court, as further information was required.
Croydon had already agreed that they would not terminate the children’s placements until at the earliest the 8th February. However, during the hearing before this judge, it undertook not to terminate the placements until at least 14 days after he had given judgement. It was also confirmed that Ms Bell and her younger son would also be able to stay at TCT and whilst this was initially to settle DB and ZB, they also both remained there as Ms Bell had been evicted from the previous property at 388 Addiscombe Road and refused to move to the second property at 322 Norbury Avenue, which Croydon had proposed.
The judge set out that pursuant to s.37 of the Children and Families Act 2014, Croydon had compiled Education, Health and Care (EHC) plans for both children, in which LLS had been named as their place of education, with provision set out and on the basis that they would be living with Ms Bell. Ms Bell strongly objected to the EHC Plans and was seeking orders in this regard in the present hearing. Appeals in relation to the contents of the EHC plans were also lodged with the First Tier Tribunal (FTT) with those appeals due to be heard on the 20th and 21st March 2023.
The First-Tier Tribunal (FTT) proceedings
The Judge set out that pursuant to s.51 of the 2014 Act, Ms Bell had a right of appeal to the FTT against the contents of the EHC Plans. Appeals were in fact lodged against both plans on 13 June 2022, with Ms Bell appealing against the statement of special education needs (section B), the education, health and social care provision which was to be made (section F) and the identification of the school (section I), and with other possible consequential amendments being required to other sections of the Plans.
The Judge went on to clarify the position in relation to the power of the FTT to make decisions in relation to the relevant parts of the EHC Plans being appealed, setting out that FTT has the power to make binding orders with respect to the educational contents and provision, including the naming of the school. With respect to the health and social care provision, the FTT power only extends to making non-binding recommendations and therefore in this case the FTT can only make recommendations to Croydon as to the identification of the children’s health and social care needs and the provision which should be made to meet those needs.
The judge also stated that shortly before the hearing before him, it had been accepted by the Claimants that the Administrative Court was not the right setting for disputes in relation to the contents of EHC plans which was in accordance with the ruling of Kerr J in R (Q) v Staffordshire CC [2021] EWHC 3486 (Admin). He went on to set out his reasons for the FTT being the appropriate forum stating “The FTT is the specialist forum for the disputes as to which school they should attend, and other disputes regarding appropriate health and social care provision for them, and will hear factual evidence in order to resolve those disputes. The FTT can only make non-binding recommendations in relation to health and social care provision but it was not suggested that this should make any difference to the priority to be afforded to the FTT proceedings, not least because the appropriate health and social care provision for the children is entirely dependent upon whether they are to be educated at CTS or at LLS…” He also went on to set out his reasons for why he would have refused to grant the quashing orders and mandatory relief, which had originally been sought in these proceedings.
Referring to some of the declarations being sought by the Claimants he stated some concerned historic alleged failings of Croydon which had either been superseded as a result of the children being placed in TCT or by fresh decisions and fresh provision following the ruling of the FTT. Making reference to the recent case of R (AA) v NHS Commissioning Board [2023] EWHC 43 (Admin), as Chamberlain J stated “…it is important to bear in mind that judicial review remedies are, in general, forward-looking. They are appropriate where the public authority cannot or will not remedy the breach itself. As Woolf LJ emphasised in R v ILEA ex p. Ali, the function of judicial review is not, generally, to conduct inquests into whether an authority is culpable for an admittedly unsatisfactory situation. I say “generally” because, when a judicial review claimant also claims a compensatory remedy, it may be necessary to conduct a backward-looking analysis.”
He went on to set out his reasoning for not granting relief on the other declarations sought and in relation to the compensatory remedy being sought by the Claimants he said, “a backward-looking analysis will be necessary when I come to consider that claim.”
The matters left before the court for determination were therefore:
- A claim for an order that Croydon maintain the placements of DB and ZB at TCT pending the outcome of the FTT proceedings. This had not been pleaded in the original claim but later added by Mr Presland at the hearing without objection from Mr Harrop-Griffiths for Croydon (although he did object to the making of such an order).
- The Claimants’ claims for breach of their Convention rights.
Convention rights claims
In considering the Convention rights claim the judge referred to Article 2 of the First Protocol (‘A2P1’) which provides “No person shall be denied the right to education.” He also considered a number of decided cases and made reference to a number of judgments within his reasoning.
He went on to say “decided claims for breach of A2P1 are few and far between and the outcome of those cases is instructive. But every care is different, and I must apply the “highly pragmatic” test to the specific facts of the present case.” The Judge concluded that Croydon had been informed on the 2nd December 2020 by Lambeth, that the Claimants had moved into Croydon’s area and “according to the team leader in Croydon’s Special Educational Needs Department, they had forthwith accepted responsibility for them under s.24 of the Children’s and Families 2014 Act.” Croydon had received from Lambeth their EHC Plans, which stated they were enrolled at LLS. Although Croydon’s social worker was aware that the children had not been to school for some time, the social worker went ahead and proceeded on the basis that they would attend LLS once Croydon and (as it was their responsibility) had arranged transport.
The judge went on to set out a detailed timeline of subsequent events concluding that “as of 19th April 2022, more than 16 months after they moved into Croydon’s area, the children were still unable to attend LLS for lack of adequate transport and accompanying escort arrangements.” …
”Croydon had refused to make any educational provision for the children because they were enrolled at LLS, whilst not taking the steps necessary to ensure that they could actually attend LLS…It is little short of heart-breaking to contemplate the plight of the children during this period, when they were housebound – and in DB’s case confined to his bedroom for weeks, if not months on end.”
Whilst the judge did not hold Croydon solely responsible, and set out Lambeth’s role in providing wholly unsuitable accommodation, he stated that contrary to Croydon’s submissions “that fact does not absolve it of its own duties under A2P1.” And whilst some delays in relation to the transport were of Ms Bell’s making, he concluded that once Croydon became aware that the children were not attending school “Croydon had a primary responsibility to ensure that they did so, or at the very least that they were able to do so.”
In its defence, although Croydon had very little to say, its principal argument had been that they were doing their best for the children in trying circumstances. This was not accepted by the judge who said, “I do not accept that Croydon’s efforts to ensure that the children could attend school represented “its best”; if they did, then its best was not good enough to satisfy the requirements of A2P1.”
Article 8
In considering the claim under Article 8 ECHR and the right to respect for private and family life, the Judge stated “There is undoubtedly force in their central contention that the conditions in which they were living at 388 Lower Addiscombe Road, as described by Jill J and set out above, fell below the minimum standards required by Article 8 … and that a public authority or authorities bore legal responsibility for that.. The difficulty lies in establishing that liability should lie with Croydon rather than with, in particular Lambeth, who placed the family in unsuitable accommodation and who are not before the Court…”
The Judge went on to set out that the Claimants had chosen not to claim against Lambeth in the proceedings before him, nor had they provided any evidence or argument as to why Croydon as opposed to Lambeth bore primary responsibility (when Croydon had made submissions that it was the housing provided by Lambeth, which had caused the difficulties). The Judge concluded he could not find Lambeth bore primary responsibility when they were not before the Court, and he dismissed the Article 8 claim on the grounds that the Claimants had not established that Croydon was primarily responsible for any breach of their Article 8 rights.
Just satisfaction
Turning to just satisfaction, the Claimants had submitted that a payment of damages was necessary to afford them just satisfaction for a breach of their A2P1 rights to education. Croydon relied on the same reasoning/submissions that it had asserted, regarding its liability under A2P1 and disputed this. The judge stated in response “neither of those submissions was sufficient to avoid liability for breach of A2P1 and they have no greater force as submissions against the award of damages.”
The Claimants had sought a quantum of damages in line with the payments recommended by the Local Government and Social Care Ombudsman (“Ombudsman”) that were applied in cases of maladministration which had resulted in a child missing out on education.
Croydon had not made any submissions in relation to the quantum of just satisfaction which would in their view have been appropriate. The judge set out as at January 2021, the Ombudsman had usually recommended a payment of between £200-£600 per month of missed education, which would have taken into account any relevant factors including the child’s needs, any educational provision made during the relevant time (eg some part time education provision being provided by the Council), whether or not any additional provision would be able to remedy some or all of the loss of education and whether the period of time was at a significant time in the child’s career.
The judge stated he did not have all of the evidence which he would ideally have liked to have before considering the question of quantum of damages. He set out that there had not been detailed evidence with respect to the severity and impact on the loss of education to the children; nor whether that could be remedied in whole or part by any future educational provision. He had considered referring the assessment for damages to a High Court Master who would be able to make directions for the filing of further evidence in this regard. However, since no party had suggested that course – and since that would be a disproportionate step given the sum of damages involved and the Ombudsman guidance that was available, he considered he had a plausible basis for calculating the compensatory award.
He set out that he considered £10,000 an appropriate figure for each child, which represented £600 per month between December 2020 and 19 April 2022, a period of 16.5 months. He based this at the higher end of the scale on the basis of an absence of any significant educational provision during that period and the likely severity of the impact that this would have had on the children, based on their very limited social contact which they would otherwise have had.
The Claimants had also requested an order prohibiting Croydon from moving the children from their placements at TCT before the conclusion of the proceedings at the FTT proceedings. The judge refused to make a mandatory order in this regard.
Setting out his reasoning in his judgment, he stated that Croydon had not indicated any intention to move the children and if they did choose to do so, such a decision would be judged on the circumstances at that time. It was within Croydon’s knowledge that they would need a powerful justification for causing any further disruption to the children’s lives in this interim period. He also stated he could not say whether any such move in the future would be considered unlawful, taking into account the uncertainty as to when those proceedings could be concluded and the possibility of an appeal against those proceedings in the FTT.
Concluding, the judge set out that Croydon had breached the Claimants’ A2P1 rights between 2 December 2020 and 19 April 2022 and made an award of just satisfaction for £10,000 to each of the children and dismissed the remainder of the claims.
Comment
There is precedent for quantifying a financial award for just satisfaction in line with the recommended amounts set out by the Local Government and Social Care Ombudsman’s (“the Ombudsman”) guidance/tariff for its approach to compensation. It would seem from the facts of the case that an equivalent award of a financial remedy for loss of a non-monetary benefit, here the loss of educational provision, would have been available considering the guidelines set by the ombudsman. These being as follows: –
“Where fault has resulted in a loss of education provision, we will usually recommend a remedy payment of between £200 and £600 a month to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as: the severity of the child’s SEN; any educational provision – full time or part time, without some or all of the specified support – that was made during the period; whether additional provision now can remedy some or all of the loss; whether the period affected was a significant one in a child’s school career – for example the first year of compulsory education, the transfer to secondary school or the period preparing for public exams.”
The likely logic for the Court’s approach is that it does not want to incentivise recourse to court for matters that should go via an alternative remedy. That was certainly the stance in Bernard v Enfield LBC, many years ago for an article 8 breach, sounding in damages.
The irony is, however, that a complaint to the Ombudsman can only be taken on if the person has used the underlying complaints system, and yet one might think that a complaint that is actually underpinned by such rank illegality should go to the Monitoring Officer under s5(2) of the Local Government Act 1989.
If the matter were before the ombudsman it would be a matter for that organisation to consider what weight should be given to the evidence presented. It is good to know that the remedy which was sought in the court in this case, in relation to damages for affording just satisfaction to the claimants for the loss that had been suffered, could also have been achieved via the ombudsman. We think a judicial review for people entitled to legal aid is a much better route to go, but we would want to know more about whether the legal aid agency’s charge bit on the damages settlement or whether that had been avoided too, by dint of Croydon having to pay all the costs on what’s called an inter partes basis.
Whilst there is a distinction in the jurisdiction and powers of the LGSCO and that of a SEND Tribunal, (most recently explored in Milburn, R (On the Application Of) v Local Government and Social Care Ombudsman – concerning the respective jurisdictions of the Ombudsman and the First-tier Tribunal) the Ombudsman may still be a good alternative recourse to a remedy in the context of EHC Plans.
The Ombudsman is able to investigate a complaint where a Local Authority has failed to provide for a child or young person’s agreed special educational needs in social care and education once it’s been put in a statement. They are also able to investigate a delay in assessing and issuing a EHC plan, failing to implement a plan or failing to carry out an annual review – the proviso however being that the Complainant should have first exhausted the Local Authority complaints procedure before making a complaint to the LGSCO.
If the matter is before the Tribunal, the usual position is that the LGSCO will want to know the outcome of the appeal before deciding on the complaint. They cannot run in parallel.
Another clear distinction is while the SEND Tribunal can decide on the type and amount of provision a child or young person requires, the LGSCO can only determine whether the specified provision is being made, and whether the Local Authority has acted in accordance with statutory requirements in developing a plan. The LGSCO can recommend that the LA provides the SEND provision described in an EHC plan and can state a financial remedy for provision not made. The LGSCO is also able to make financial recommendations to remedy injustice for the family and therefore is an avenue available to pursue when you consider the costs implications in appealing before the Courts, in preparing the cases and the potential delays in proceedings being heard.
The matters being referred to the SEND Tribunal continue to go up, resulting in significant delays in matters being heard, despite the Local Authority being unsuccessful in most of these.
What extended appeals have done (ie where the Special Educational Needs and Disability Tribunals can make non-binding recommendations about health and social care, as well as its standard binding orders), is to allow a single route for families and young persons to raise issues with respect to EHC Plans in a single place. Whether that will ultimately be successful will be dependent on whether Local Authorities implement the tribunal’s non-binding recommendations.
The full judgment in relation to this case can be found here: https://www.bailii.org/ew/cases/EWHC/Admin/2023/489.html