Opinion of Lady Smith
in the case of
Gerard Crossan as Legal Representative of
Declan Crossan (AP) v South
Lanarkshire Council
14 February 2006
Local authorities have a discretion not an
obligation to provide after and out of school care for children in need.
Gerard Crossan is the
father of a thirteen year old child, Declan, who has Down's Syndrome and
requires 24 hour supervision. He attends
school but requires supervision when not in school. After school care was provided for Declan by
the 'Kid's Club Network', until January 2000 when its director reached the view
that they could not continue to offer Declan the level of support that he
required. South Lanarkshire Council's social
work department assisted in helping to identify appropriate after school
provision for Declan, and carried out an assessment of Declan's needs in
February 2000. This concluded that after
school care be provided for Declan from 3.30 - 6.00pm.
Declan was thereafter
provided with a three week placement at the Cambuslang After School Care
Project ('the Project') by way of immediate respite, and Mr Crossan has elected
to retain Declan's place there, paying the fees himself. The Project is independently run and South
Lanarkshire Council do not provide any after or out of school care centres.
South Lanarkshire Council do, however, provide support, infrastructure and
advice to assist such service providers, including the Project, in accessing
sources of funding. A number of local
authorities in Scotland have adopted the same or
similar model.
Mr Crossan believes that
South Lanarkshire Council have a duty to provide out of and after school care
for Declan because a needs assessment had been carried out which included
it. It followed, he said, that the Council
were obliged to provide the care free of charge. South Lanarkshire Council denied that this was the case as the
duties incumbent on local authorities under the relevant sections of the
Children (Scotland) Act 1995 (the 1995 Act) were
general duties that did not give any rights to the individual child.
Summary of Lady Smith's Opinion
ท
The relevant provisions of the 1995 Act were not
concerned with the needs of individual children. Every local authority can be expected to have
a system for the provision of reasonable services to 'children in need' in such
a way that, as a generality, it can be said to be providing what is appropriate
for that class of children in their area to promote their welfare. Not everything that every child needs requires
to be provided for by the local authority (para.[20]).
ท
A local authority has a discretion not an
obligation when it comes to the question of whether or not it should itself
provide after and out of school care for children in need. Thus a local authority may decide that it is
inappropriate for them to make direct provision by way of a service they run
and administer because they are satisfied that there is adequate provision in
their area afforded by others, particularly where the local authority is giving
support to those organisations (whether in cash or in kind) (para.[22]).
ท
No inference arises that a local authority are
bound, once an individual child has been assessed as having a particular need,
to meet that need. This is not the
purpose of the assessment. Rather, it is to allow the local authority to
measure the nature and extent of the needs of children, including disabled
children in its area (para.[24]).
ท
Even if South Lanarkshire Council were to provide
after and out of school care for Declan directly, it would be open to them to
charge for doing so. There is nothing in
the 1995 Act which states that the local authority must provide after and out
of school care for children in need free of charge (para.[28]).
ท
The decision of South Lanarkshire Council was not
unreasonable, and there was no infringement of Article 8 of the European
Convention on Human Rights. Declan has a
placement at the project which his parents consider to be in his best interests
(para.[30]).
ท
The petition was raised by Declan's father in his
capacity as Declan's legal representative.
This meant that the petition was really Declan's petition. The question arose therefore whether Declan
had an interest in the present action because if he did not, he was not
entitled to sue. Lady Smith held that
Declan's interests, i.e. receiving the benefits of the project that his parents
have chosen for him, have been and are being provided for. The proceedings are, in truth, for the sole
benefit of Declan's parents. It is
Declan's parents who have the interest in whether South Lanarkshire Council
pays for his after and out of school care.
It is difficult to resist the conclusion that the petition has been
raised in Declan's name so as to secure Legal Aid funding (para.[36]).
ท
In the event, there was no need to determine the
delay argument. However, had Lady Smith
been required to do so, she would have decided that the plea be sustained but
only so as to restrict the effect of any order to the period from the date that
the present proceedings were raised (para.[38]).
NOTE
This summary is provided to
assist in understanding the Court's decision.
It does not form part of the reasons for that decision. The full report of the Court is the only
authoritative document.
The full opinion will be available on the Scottish
Courts website from 12.00 noon today at this location: http://www.scotcourts.gov.uk/opinionsApp/supreme.asp
|
OUTER HOUSE, COURT OF SESSION
[2006] CSOH NUMBER28
|
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P1818/03
|
OPINION
OF LADY SMITH
in the petition of
GERARD CROSSAN as
Legal Representative of DECLAN CROSSAN (AP)
Petitioner:
against
SOUTH
LANARKSHIRE COUNCIL
Respondents:
for
JUDICIAL REVIEW
ญญญญญญญญญญญญญญญญญ________________
|
Petitioners: Kelly;
Drummond Miller, WS
Respondents: Scott; Simpson & Marwick
14
February 2006
Introduction
[1] The
petitioner is the father of a thirteen year old child, Declan, who has Down's
Syndrome. Declan's impairments arising
from his condition are such that he requires 24 hour supervision. He attends school but requires supervision
when not in school. His mother works
and, until November 2004 when he retired on grounds of ill-health, the
petitioner worked. Since August 2000,
Declan has been attending the Cambuslang After School Care Project ('the
Project') after school and during school holidays. Fees are charged by the Project for his
attendance there and these fees have been paid by the petitioner. The fees would be higher if it were not for
the fact that some financial assistance from Children in Need was secured by
the Project under reference to Declan's particular requirements. The Project is independently run . It is not
an organisation of the respondents . The respondents do not run any after or
out of school care centres.
[2] The
respondents do, however , provide assistance to the Project. To date, the respondents have not considered
it appropriate to set up direct provision of out of or after school care. There are various external providers of such
services in their area and they have, thus far, decided not to compete with
them. They do, however, provide support,
infrastructure and advice to those providers to assist them in accessing
sources of funding which can include Council funding but will also include
funding by charities, such as Children in Need.
This is an approach which has been adopted in the context of a system
which provides parents with funds to meet fees for such child care via the
Working Tax Credit ('WTC'). Broadly
speaking, working parents will qualify for WTC if they meet the means
requirements for its payment.
[3] The respondents
are not alone in their approach . It is evident from the Scottish Executive
document, 'School's Out' (No. 7/5 of process) that a number of other local
authorities in Scotland
have adopted the same or a similar model.
Factual Background
[4] Until 20
January 2000, after school care was provided for Declan by the 'Kids Clubs
Network'. Its director reached the view
that they could not continue to offer the level of support that Declan
required, on that date. The respondents'
social work department assisted in helping to identify appropriate after school
provision for Declan thereafter. They
carried out an assessment of Declan's needs, in February 2000. The Community Care Assessment Form that was
completed at that time is dated 22 February 2000 and contains the following
summary:
"Mr and Mrs Crossan are
obviously under a great deal of pressure. It is becoming more and more difficult for the
couple to meet Declan's need for after school care. A suitable after school care provision would
provide the family with a much needed support. Respite would help to alleviate pressures
within the house."
and the first of his assessed needs is recorded as :
"After School Care be provided
for Declan from 3.30 - 6.00".
[5] Declan was
thereafter provided with a three week placement at the Project by way of
immediate respite. The petitioner
elected to retain his place there and has, since then, repeatedly sought to
have the respondents undertake responsibility for the payment of the fees due. The respondents consider that they are not
obliged to pay them. The family's
circumstances have been monitored since 2000.
The matter of after and out of school care for Declan was raised by the
petitioner at a Community Care Review on 9th June 2004 but it could
not be addressed at that meeting. It is
recorded in No. 6/11 of process that it was acknowledged that that matter was
being dealt with in a different forum.
The petitioner has raised the issue of payment of these fees with his
local councillor, his Member of the Scottish Parliament and his Member of
Parliament in the period since the year 2000.
The Petition
[6] The
present petition seeks to have
judicially reviewed the respondents' refusal to pay Declan's fees for after and
out of school care, to have it declared that the respondents are under a duty
to fund such a place for Declan and to
have the respondents ordered to secure that such care for Declan throughout the
year is funded by them.
The Law
The relevant duties of a local
authority to children are set out in sections 22, 23 and 27 of the Children ( Scotland)
Act 1995 ('the 1995 Act'). They provide:
"Promotion of welfare of children in need
22.-(1) A
local authority shall -
(a) safeguard and promote the
welfare of children in their area who are in
need; and
(b) so far as is consistent
with that duty, promote the upbringing of such children by their families,
by providing a range and level of services appropriate to the children's
needs.
......
(3) Without prejudice to the generality of
subsection (1) above -
(a) a service may be provided under that
subsection -
(i) for a
particular child;
(ii) if
provided with a view to safeguarding or promoting his welfare, for his family;
or
(iii) if
provided with such a view, for any other member of his family; and
(b) the services mentioned in that subsection
may include giving
assistance in
kind or, in exceptional circumstances in cash.
(4)
Assistance such as is mentioned in subsection (3)(b) above may be
given unconditionally or subject to conditions as to the repayment, in whole or
in part, of it or of
its value; but before giving it, or
imposing such conditions, the local authority shall have regard to the means of
the child concerned and of his parents and no condition shall require repayment
by a person at any time in receipt of -
(a) income support or working families' Tax
Credit payable under the Social Security Contributions and Benefits Act 1992;
(aa) any
element of child tax credit other than the family element or
working tax credit; or
(b) an
income-based jobseeker's allowance payable under the Jobseekers
Act 19965.
Children affected by disability
23.-(1) Without
prejudice to the generality of subsection (1) of section 22 of this Act,
services provided by a local authority under that subsection shall be designed
-
(a) to
minimise the effect on any -
(i) disabled child who is within the authority's
area, of his disability; and
(ii) child
who is within that area and is affected adversely by the disability of any
other person in his family, of that other person's disability; and
(b) to
give those children the opportunity to lead lives which are as normal as
possible.
(3) Where requested to do so by a child's
parent or guardian a local authority shall, for the purpose of facilitating the
discharge of such duties as the authority may have under section 22(1) of this
Act (whether or not by virtue of subsection (1) above) as respects the child,
carry out an assessment of the child, or of any other person in the child's
family, to determine the needs of the child in so far as attributable to his
disability or to that of the other person.
......
Day care for pre-school and other children.
27.-(1) Each
local authority shall provide such day care for children in need within their
area who -
(a) are aged five or under; and
(b) have not yet commenced attendance at a
school,
as
is appropriate and they may provide such day care for children within their
area who satisfy the conditions mentioned in paragraphs (a) and (b) but are not
in need.
(2) A
local authority may provide facilities (including training, advice, guidance
and counselling) for those -
(a) caring for children in day care; and
(b) who at any time accompany such children while
they are in day care.
(3) Each
local authority shall provide for children in need within their area who are in
attendance at a school such care -
(a) outside school hours; or
(b) during school holidays,
as
is appropriate; and they may provide
such care for children within their area who are in such attendance but are not
in need......".
It is also relevant to note the
provisions of the corresponding English legislation . They are contained in the
Children Act 1989 sections 17 and 18 :
"17. Provision of services for
children in need , their families and others
(1) It shall be the general duty of every local authority ( in
addition to the other duties imposed on them by this Part) -
(a) to safeguard and promote the welfare of
children within their area who are in need;
by providing a
range and level of services appropriate to those children's needs.
18.
Day care for pre- school and other children
(1) Every local authority shall provide such day care for
children in need within their area who are -
(a) aged five or under ; and
(b) not yet attending schools,
as is
appropriate .
......
(5) Every local authority shall provide for
children in need within their area who are attending any school such care or
supervised activities as is appropriate -
(a) outside school hours ; or
(b) during school holidays."
[7] It
is also relevant to note the following provisions of the Education (Scotland)
Act 1980:
"3. (1) Subject to the provisions of subsections (2) to
(5) below , school education and compulsory further education provided by a
local authority shall be provided without payment of fees.
11. (1) An education authority shall provide free of
charge for all pupils belonging to their area who are given free education, books,
writing materials, stationery, mathematical instruments, practice material and
other articles which are necessary to enable the pupils to take full advantage
of the education provided; and the
authority may make similar provision, with or without charge for other pupils
resident in their area and attending any school or other educational establishment."
Submissions for the Petitioner
Title to Sue:
[8] Mr
Kelly submitted that the petitioner, as Declan's father had a general title to act as his legal
representative. Further, Declan had an
interest in the present proceedings because if it became the case that his
parents could no longer afford to pay the fees for the Project, then he would
suffer. He referred, for support for his
submission, to the case of Sinclair v Scottish Legal Aid Board a judgment of Sheriff Principal A L
Stewart's, unrepd 15 June 2005.
The Respondents' Obligations:
[9] Regarding
the substantive aspects of the petition, Mr Kelly submitted that the
respondents had a duty to provide out of and after school care for Declan
because a needs assessment had been carried out which included it. It followed, he said, that the respondents
were obliged to provide the care free of charge. Section 22(4) of the 1995 Act required them to
do so as did section 27(3). He drew
attention to Professor Norrie's commentary to the statutory provisions
(Thomson/W Green) and his comment that the aim of a needs assessment carried
out by a local authority will be for them to identify the services 'that they
have to provide to the child to fulfil their obligations'. The fact that it was being provided by the
Project meant that the respondents were not providing care for Declan at all
since they were neither providing it directly nor had they undertaken to fund
it. It appeared that the respondents had
declined to fund the requisite care on account of budgetary constraints but,
assuming that that was so, he did not seem to challenge the existence of such
constraints as a matter of fact. He
added that the respondents had not investigated the matter of Declan's parents'
ability to pay the fees but ultimately, that reference did not seem to become a
submission that they had a duty to make any such investigation.
[10] Mr Kelly placed reliance on the case of McGregor v South Lanarkshire
Council 2001 SC 502 where it was
held that a local authority were obliged to provide an elderly man with a place
in a care home under and in terms of the provisions of the Social Work (Scotland) Act
1968 . He also relied on the case of Robertson v Fife Council 2002 SC 145.
Reasonableness:
[11] Separately, Mr Kelly submitted that the respondents' policy
regarding the funding of such after and out of school care as Declan required
was unreasonable in the Wednesbury sense.
In considering their approach, the
respondents reasonably required to take account of the Declan's family's rights
under Article 8 of the European Convention on Human Rights. Whilst it was accepted that the provisions of
the 1995 Act covered those rights, it required, he submitted, to be recognised
that the provision of after and out of school care preserved family life
because of the assistance provided thereby. The respondents were in breach of article 8.
Delay:
[12] Finally, Mr Kelly resisted the suggestion that there had been
undue delay by the petitioner. The
present petition was lodged on 9 December 2003. He had made his position plain prior to that
time. He had sought help in various
quarters, as was evident from the documents lodged. In any event, even if it were thought that he
had delayed, delay alone would not be enough for a plea in bar: Scottish
Water v The Scottish Ministers 2004
SLT 495.
Submissions for the Respondents
Title:
[13] Title was not the principal submission advanced for the
respondents. However, whilst accepting
that the appropriate test was that of whether or not the child had an interest,
it was said that it was not at all clear that it was Declan's interests that
were being advanced. The question of in
whose interest the litigation was being pursued required to be asked: R v Local Borough of Richmond ex parte JC [2001] ELR 21, R (on the application of B) v Alperton Community School
[2001] ELR 359 , and R (WB and KA) v Leeds School Organisation Committee [2003]
ELR 67. Was it Declan's interests or the
petitioner's own interests that were at the heart of the case? The issue raised was a dispute between parents
and a local authority in respect of who should bear the cost of Declan's out of
and after school care. Declan was, as a
matter of fact, receiving the care that his parents considered to be best for
him.
The Respondents' Obligations:
[15] In support
of these submissions, Mrs Scott relied on a careful analysis of the terms of
the relevant sections of the 1995 Act and several English decisions regarding
the interpretation of the comparable provisions of the Children Act 1989: R v Barnet London Borough Council [2004] 2 AC 208 , R v Inner London EA ex parte Ali [1990] 2 Admin LR 822, R v Kensington and Chelsea Royal London Borough
Council ex parte Kujtim [1999] 4 AER 161,
R v London Borough of Barnet ex parte
B [1994] ELR 357, R v
Gloucester County Council ex parte Barry [1997] AC 584. She also referred to House of Lords Hansard vol 564 for a discussion in which the
relevant provisions of the Children (Scotland) Bill were being considered and
the limitation of local authority resources in the context of out of and after
school care provision was commented on. She submitted that the approach taken in
England should be followed. It would be
surprising if the 1995 Act imposed duties on Scottish local authorities that
were more onerous than those imposed on their English counterparts. Regarding the petitioner's reliance on the
cases of McGregor and Robertson, Mrs Scott submitted that they could be
distinguished from the present case both on their facts and on the legal issues
considered. Further, if Parliament had
intended that local authorities should be obliged to provide such child care
services, free of charge, it could have said so. Express provision requiring the free provision
of services was made in a similar context, in the Education Scotland) Act 1980 sections 3 and 11, and in the Local
Government ( Scotland) Act 2003 sections 20 and 22. The absence of express provision in respect of
after and out of school child care was indicative of it not being intended that
there should be free provision.
Reasonableness:
[16] Mrs Scott
submitted that the respondents were not acting unreasonably. The petitioner's averments did not begin to
meet the requisite test. Reference was
made in support of that submission to the case of Anufrijeva v Southwark London
Borough Council [2004] 2 WLR 603.
Delay:
[17] Delay was
referred to not as a plea wholly in bar but as a reason why, if any order were
to be pronounced in favour of the petitioner, its effect should not be
backdated. Whatever efforts were being
made by the petitioner to advance his cause directly with the social work department and through
politicians, he did not bring his interpretation of the respondents' statutory
duties to court until late in the day. There
would be prejudice to good administration if the respondents were now forced to
fund something for which, at the time, they were not aware that the petitioner
was advancing a formal claim. Reference
was made in support of that submission to the case of Mackay-Ludgate v Lord Advocate 2002 SCLR 109.
Discussion
The Respondents'
Obligations:
[18] The Children
(Scotland) Act 1995 makes comprehensive provision for the interests and needs
of children in Scotland in both the public and private law context. The part of the Act in which the provisions
that are relevant for the present case are found is entitled: "Promotion of Children's Welfare by Local
Authorities and by Children's Hearings etc." and the particular sections under
consideration are headed: "Provision of Services". In short, they are contained in a part of the
Act that sets out the nature and extent of a local authority's powers and
duties in respect of the provision of services for children in their area. Children affected by disability, such as
Declan, are specifically referred to in section 23. A local authority must carry out an assessment
of such a child's needs if requested to do so by the child's parents. The provision of services for children,
including day care for children in need, is covered by sections 22 and 27.
[19] The
question that arises is, in essence, the same as was addressed by their
Lordships in R(G) v Barnet LBC, namely does a local
authority require to meet, free of charge, every one of a child's needs that
has been identified by assessment?
Inherent in the petitioner's approach to that question is the
proposition that the duties set out in sections 22 and 27 of the 1995 Act are
owed to each child in need individually and are enforceable against the relevant
local authority by or on behalf of each child as an individual. Does the statutory wording and context support
such an approach?
[20] I am not
satisfied that it does. On the contrary,
these two sections do not whether alone, together or in conjunction with
section 23, read so as to evince any
intention that absolute rights be conferred on individuals or duties be imposed
in respect of them. The word "general" may not, as in the
comparable English legislation, be used, but it seems clear that these sections
provide only for general duties to provide services with the detailed nature
and extent of those services being left to the authority's discretion. In providing, in section 22(1), that a local
authority has a duty to 'safeguard and promote the welfare of children in their
area who are in need' by 'providing a range and level of services appropriate
to the children's needs', Parliament has chosen to use the language of
generality. The subsection is not
concerned with the needs of individual children. It refers only to a class, 'children in need',
and not to the needs of the individuals within that class, which are liable to
vary and may conflict. The use of the
word 'appropriate' clearly confers discretion on the local authority. The same comments can be made in respect of
the relevant provisions of section 27.
The import of the statutory provisions is that every local authority can
be expected to have a system for the provision of reasonable services to
children in need in such a way that, as a generality, it can be said to be
providing what is appropriate for that class of children in their area to
promote their welfare. Not everything
that every child needs requires to be provided for by the local authority.
[21] Further, if
it were the case that Parliament had intended that section 22(1) would oblige
local authorities to provide services to individual children in respect of
their individual needs , there would have been no need for subsection (3) of
section 22. That subsection, after having
made reference to the 'generality' of subsection (1), confers a discretion on a
local authority to provide a service that falls within the description set out
in subsection (1) 'for a particular child'. It reinforces the clear impression that
section 22(1) sets out duties of a general character only which are intended to
be for the benefit of children in need in general. A local authority may thus decide to provide
for a particular need of a particular child but it is not obliged to do so.
[22] It also
seems clear to me from the terms of section 27(3) that the local authority have
a discretion not an obligation when it comes to the question of whether or not
it should itself provide after and out of school care for children in need. The care that they require to provide for that
class of children requires to be such care as is 'appropriate'. The use of that word implies a discretion of
some width. Thus, a local authority may
decide that it is not appropriate for them to make direct provision by way of a
service that they run and administer because they are satisfied that there is
adequate provision in their area being afforded by others, particularly in
circumstances where the local authority is giving support to those
organisations (whether in cash or in kind) and where working families of
limited means can obtain assistance with the cost of such care through the tax
credit system to which I have referred.
[23] The
petitioner's approach is to say that since Declan was, in 2000, assessed by the
respondents as having a need for after school care, the respondents were and
are required to provide it for him and, further, to provide it free of charge. It is the same argument that was advanced in
England, in the case of R v Kensington and Chelsea Royal London Borough
Council, Ex Pex parte Kujtim where a person had been
assessed as under section 47 of the National Health Service and Community Care
Act 1990 as being in urgent need of care and attention so as to satisfy the
criteria set down in section 21(1) (a) of the National Assistance Act 1948 and
the Court of Appeal held that the local authority were under a duty to provide
him with accommodation so long as his needs remained unchanged. That was because the local authority had
assessed his needs as meeting the requisite criteria. Assessment of need had 'crystallised' the
duty. However, the statutory language
that was relevant to that application is different from that contained in the Children
Act 1989 and in R(G) v Barnet, the House
of Lords found that the differences were such as to make the notion of
crystallisation of duty upon assessment of need inapplicable in the context of
the latter legislation. Even Lord
Nicholls, who dissented, observed that the relevant provisions of the Children Act 1989 were such
as to infer that a local authority had considerable latitude as to the means by
which they were to achieve the objectives provided for.
[24] The
language of the relevant provisions of the Children (Scotland) Act 1995 does
not either expressly or impliedly support the proposition that once a child's
needs have been assessed, a duty crystallises so as to oblige the local
authority to meet those needs. The terms
of section 23 are not such as to suggest that that is the purpose of
assessment. The purpose of assessment is
stated to be so as to enable the local authority to fulfil its section 22(1)
duties which are general duties. Clearly,
to fulfil the general duty and make appropriate decisions in the light of that
duty, a local authority requires to know the nature and extent of the needs of
children, including disabled children, in its area. The needs assessment carried out under section
23 should be of assistance in that regard.
It will also be of assistance in a case where the local authority, in
the exercise of the discretion available to it under section 22(3) decides that
it wishes to provide a service for a particular child. No inference arises, however, that a local
authority are bound, once an individual child has been assessed as having a
particular need, to meet that need.
[25] The cases
of McGregor and Robertson, on which the petitioner relied, do not, in my view,
assist. They both concerned the
application of the provisions of the Social
Work (Scotland) Act 1968 relating to the provision of
community care in the context of care of the elderly. The provisions relied on by Lord Hardie for
his decision in MacGregor were those
contained in sections 12 and 12A, and include:
"12.-(1) It shall be the duty of every local
authority to promote social welfare by making available advice, guidance and
assistance on such a scale as may be appropriate for their area, and in that
behalf to make arrangements and to provide or secure the provision of such
facilities (including the provision or arranging for the provision of
residential and other establishments) as they may consider suitable and
adequate, and such assistance may, subject to subsections (3) to (5) of this
section, be given in kind or in cash to, or in respect of, any relevant person.
....
12A.-(1) Subject to the provisions of this
section, where it appears to a local authority that any person for whom they
are under a duty or have a power to provide, or to secure the provision of,
community care services may be in need of any such services. The authority -
(a) shall make an assessment of the needs of
that person for those
services; and
(b) shall then decide, having regard to the
results of that
assessment, and taking account -
(i) where it appears to them that a person
('the carer') provides a substantial amount of care on a regular basis for that
person, of such care as is being so provided; and
(ii) in so far as it is reasonable and
practicable to do so, both of the views of the person whose needs are being
assessed and of the views of the carer (provided that, in either case, there is
a wish, or as the case may be a capacity, to express a view),
Whether the needs of the person
being assessed call for the provision of any such services."
[26] Section
12(1) may be compared to section 22(1) of the Children (Scotland) Act in respect that they both use the
language of generality in the context of the promotion of welfare and both
appear to confer a discretion on the local authority regarding the provision of
assistance. Section 12A(1) may be compared to the provisions of section 23(3)
of the Children (Scotland)
Act in respect that it imposes a duty to assess
need on the local authority. However, it
goes further than section 23(3). Section
12A(b) requires the local authority, having carried out its assessment, to make
a decision as to whether or not the needs of the person assessed call for the
provision of such services as they have a duty or power to provide. It seems clear from Lord Hardie's reasoning
that the requirements of section 12A(b) formed an intrinsic part of his
decision. Accordingly, I do not see that
the fact that he decided, in that case, that the local authority, having
assessed the petitioner's needs and having decided that he required the
provision of nursing care in a secure environment, were not entitled to refuse
to provide a place in a nursing home for him, is relevant to the circumstances
of the present case.
[27] As regards
the case of Robertson, the point at
issue there was whether the local authority had been entitled to take account
of the appellant's means when assessing her needs under and in terms of the Social
Work (Scotland) Act 1968 sections 12,12A,13A and 87. The determination of that
issue in that case is of no moment as regards the issue that arises here.
[28] Turning to
the matter of payment for services which the local authority does decide to
give, the effect of the provisions of section 22(4) is such that, in certain
circumstances, including where a family is not in receipt of working families'
Tax Credit, the local authority can impose charges. I note that there is no averment, nor was it
suggested, that the petitioner's family is in receipt of working families' Tax
Credit. Further, section 27 does not
state that the local authority must provide after and out of school care for
children in need free of charge. The
comparison that was drawn by the respondents with sections 3 and 11 of the Education
(Scotland) Act is apt. The absence of an express provision to the
effect that local authorities are obliged to provide the services covered by
section 27(3) free of charge is clearly indicative of it being within their
discretion to charge fees. In these
circumstances, even if the respondents were providing after and out of school
care for Declan directly, it would be open to them to charge for doing so.
Reasonableness:
[29] I readily
conclude that the petitioner has not made out a case of Wednesbury unreasonableness whether by reference to article 8 of
the European Convention on Human Rights or otherwise. As regards the submission that the respondent's' refusal to pay for
Declan's place at the project amounted to a breach of article 8, I agree with
counsel for the petitioner that it is appropriate to consider the recent
decision of the Court of Appeal in the case of Anufrijeva where article 8 was considered in the context of the
provision of financial assistance to families by public bodies. At paragraph 20, it is stated:
"Clayton & Tomlinson, vol 1, para 13.120 comment that the
positive obligations on the state to respect family life will rarely go so far
as to require financial or other practical support. Thus in Andersson
and Kullman v Sweden (1986) 46 DR
251 the Commission held inadmissible an application that Sweden had infringed
article 8 by failing to provide a mother with financial assistance that would
have allowed her to stay at home to look after her children, rather than
placing them in a creche and going out to work. The Commission observed, at p.253:
'the Convention does not as
such guarantee the right to public assistance either in the form of financial
support to maintain a certain standard of living or in the form of supplying
day home care places. Nor does the right
under article 8 of the Convention to respect for family life extend so far as
to impose on states a general obligation to provide for financial assistance to
individuals in order to enable one of two parents to stay at home to take care
of children.'"
an approach which is reinforced in the conclusions at
paragraph 43:
"...We find it hard to conceive,
however, of a situation in which the predicament of an individual will be such
as that article 8 requires him to be provided with welfare support where his
predicament is not sufficiently severe to engage article 3. ........Family life was
seriously inhibited by the hideous conditions prevailing in the claimants' home
in Bernard and we consider that it
was open to Sullivan J to find that article 8 was infringed on the facts of
that case."
[30] I cannot
see that on the facts of the present case, article 8 is infringed. Declan has the placement at the project which
his parents consider to be in his interests. They want him to be there. Certainly, they are paying for it but that
fact does not mean that article 8 is engaged. The submission was, essentially, that a time
might come when they can no longer afford it. I do not see that that would obviously involve
the engagement of article 8 either. Nor
am I persuaded that there is any respect in which it is otherwise unreasonable
for the respondents to have decided as they have.
Title to sue:
[31] The
petition is raised not by Declan's father as an individual but by him in his
capacity as Declan's legal representative. It is not in doubt that, in terms of section
2(1)(d) of the Children (Scotland)
Act 1995, he is entitled to act as his son's legal representative, Declan being
under sixteen years of age. This is,
accordingly, Declan's petition. The
question that arises is that of whether Declan has an interest in the present
action since if he does not, he lacks the requisite title to sue.
[32] Mr Kelly
placed reliance on an unreported decision of Sheriff Principal A L Stewart QC
in the case of Sinclair v Scottish Legal Aid Board dated 15 June 2005. In that case, the Sheriff Principal determined
that legal aid should be afforded to both a child and its parents in a case
where judicial review of the Board's refusal to grant legal aid to appeal
against an education authority's refusal of a placing request was sought. Legal aid had been refused not on the merits
but because it had been maintained on behalf of the child that it was his and
not his parents means which ought to be taken into account when assessing
eligibility for legal aid. The Sheriff
Principal was satisfied that there was probabilis
causa litigandi regarding the case against the Board since it was not, he
thought, inconsistent with the principle that a child should be educated in
accordance with the parents' wishes that the parent should pursue an action in
respect thereof as the child's representative: it was the child's education which was the
matter for concern. He did not, however,
determine the issue. It would have been
inappropriate for him to do so in the context of the application that was
before him.
[33] No other
authority was relied on by the petitioner. The authorities referred to by the
respondents, however, demonstrate a real concern on the part of the courts in
England that the ability of a parent to sue in a representative capacity can be
used so as to perpetrate an abuse of legal aid funding. The case of R v London Borough of
Richmond ex parte JC concerned the refusal by a local authority of a
request by parents that their child be placed at a particular primary school. Proceedings were issued in the name of the
child. The Court of Appeal determined
that any challenge to a local authority's handling of a placing request was one
which ought to have been mounted by the parents. At paragraph 31, Kennedy LJ said:
"I am satisfied that where a
parent wishes to challenge a local education authority or an appeals committee
in relation to the handling of a parent's expression of preference as to the
school at which his or her child should attend it is the parent and not the
child who should mount the challenge. I
accept that the child may have sufficient interest to mount a challenge, and in
some exceptional cases it may be appropriate for the child to make the
application for permission to apply for judicial review, but normally, as it
seems to me, the only reason why the application is made in the name of the
child is to obtain legal aid, and to enable the parents to protect themselves
in relation to costs. That I regard as
an abuse. Our legal system works on the
basis that those who seek a remedy should expose themselves in relation to
costs. If the device is used in future,
permission to apply for judicial review may well be refused on that ground."
At paragraph 67 -69 , Ward LJ said :
"(67) The following material
questions which may not be Mr Engleman's questions arise:
(68)(1) Whose appeal?
(69) The answer admits of no argument. Section 423
of the Education Act 1996 in dealing with ' appeal arrangements' provides :
(1) A local education authority
shall make arrangements for enabling the parent of a child to appeal against -
(a) any decision made by or on behalf of the Authority as to the
school at which education is to be provided for the child.....' (emphasis added)
It is , therefore , the
parent's appeal , not the child's . The system is open to abuse if the child
applies for legal aid and that abuse must be curtailed."
[34] The matter
was also considered in two first instance cases in England
. In R (on the application of B) v Alperton Community School a child was
refused admission to a Roman Catholic school where his application had not been
supported by the signature of a priest. Proceedings were issued in the child's name. Newman J held that the application should
not have been submitted in the name of the child. Reference was made to Kennedy LJ in the R v
London Borough of Richmond which parties appear to have agreed governed the
issue. It was, however, argued for the
child that the circumstances were exceptional so as to make it appropriate to
bring proceedings in his name. At
paragraph 15, Newman J said:
" ....in my judgment neither are 'exceptional'
within the meaning of the judgment of Kennedy LJ. He accepted that a child may have a sufficient
interest, to which both Mr Rawlings' points go, but the rationale of the
judgment is that it is the parents' legal right and its enforcement by the
parents is sufficient to protect the child's interest. Exceptional circumstances will arise where the
child's interest is not protected by the action of the parents. The application should not have been issued in
the name of C."
[35] The issue
arose again subsequently, in the case of R
(WB and KA) v Leeds School Committee.
In that case, proceedings were
issued in the names of two children who had attended a school which the local
School Organisation Committee were proposing to close. The defendants contended that the proceedings
were an abuse of process since the children were not appropriate
claimants. The Richmond and Alperton cases were distinguished in
respect that they related to admissions challenges not to a school closure
proposal. Scott Baker J considered that
both parents and children had a sufficient interest to bring proceedings in a
school closure case. He did though
recognise that there were cases where it would be an abuse of process to raise
proceedings in the name of the child. At
paragraph 35, he commented:
"There may be cases where it is
an abuse of process and that permission should thus be refused for a parent to
bring proceedings in the name of the child. These will be cases where the proceedings are
indisputably those of the parent and he uses the child as claimant solely for
the purpose of obtaining public funding to which he would not otherwise be
entitled."
[36] Although
the present case was presented as a claim that the respondents had failed to
fulfil their statutory duty to provide services to Declan, the real question
was not whether or not Declan could or should receive those services but who
should pay for them. The fact is that he
has since 2000 and is at present receiving the benefit of the placement at the
project that his parents have chosen for him. His interests have been and are being provided
for. It seems to me that these
proceedings are, in truth, for the sole benefit of Declan's parents. It is they who have the interest in what is
sought, namely that the respondents pay for Declan's after and out of school
care, an alimentary responsibility which presently and, as a matter of law,
falls on them. It is difficult to resist
the conclusion that the petition has been raised in his name so as to secure
legal aid funding. I gave counsel for
the petitioner the opportunity to explain why the proceedings were raised in
Declan's name. The only response given
was that the instructions had come from Glasgow agents who had already obtained
legal aid for proceedings to be raised in their present form. That answer does not address the issue and
simply serves to fortify the impression that the reason was to ensure that
legal aid funding was secured in circumstances where it might not otherwise
have been. The petition must have been
drafted by counsel and lodged by the Edinburgh agents. The propriety of raising proceedings in
Declan's name in the foregoing circumstances was something that ought to have
been considered at that stage. I cannot
help but share the views expressed by the Court of Appeal in the Richmond case
and Newman J in the Alperton case that to raise proceedings in
Declan's name does appear to be an abuse.
[37] It is
entirely understandable in the circumstances that the respondents did not wish
to advance their title to sue argument as their principal submission in the
case. Their fundamental concerns were
clearly the question of the nature and extent of their obligations. However, the plea was properly taken in my
view and well founded.
Delay:
[38] In the
event, there is no need for me to determine the delay argument. Had I had to do so, I would have acceded to
the respondents' proposal that the plea be sustained but only so as to restrict
the effect of any order to the period from the date that the present
proceedings were raised. To do otherwise
would, I agree, have been contrary to the legitimate interests of the
respondents in good administration. Whatever
the state of their knowledge as to representations being made by the petitioner
prior thereto, it was only when the petition was served on them that they can
reasonably have been expected to be aware of the risk that they may have to
make provision for the liability at issue in this case. I agree with the views of Lord Philip in the
case of Mackay-Ludgate that such
considerations are relevant to the plea of mora.
Conclusion:
[39] I will,
accordingly, pronounce an order sustaining the respondents first and second
pleas-in-law and dismiss the petition.
