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OPINION OF LADY SMITH

GERARD CROSSAN v SOUTH LANARKSHIRE COUNCIL

[2006] CSOH 2814 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 thatsome 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 thefamily with a much needed support. Respite would help to alleviate pressures

within the house."

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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 wayof 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 9^th 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;

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(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 taxcredit; or

(b) an income-based jobseeker's allowance payable under the Jobseekers Act

1996.

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

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(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

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(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 therespondents 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 ofMcGregor v South Lanarkshire Council

2001 SC 502 where it was held that a local authority were obliged to provide anelderly man with a place in a care home under and in terms of the provisions of the

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services were provided by a third party, a local authority was under no obligation

to pay any fees to such third party.

[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 BarnetLondon 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 ofMcGregorandRobertson, Mrs Scott submittedthat 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 ofAnufrijeva 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. Therewould 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 ofMackay-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 arefound is entitled: "Promotion of Children's Welfare by Local Authorities and by

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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. Theprovision 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 inR(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.

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[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 byway 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 ofR v Kensington and ChelseaRoyal London Borough Council, Ex 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 inR(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 fulfilthe 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 ofMcGregorandRobertson, on which the petitioner relied, do not, in

my view, assist. They both concerned the application of the provisions of the SocialWork (Scotland) Act 1968 relating to the provision of community care in the context

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of care of the elderly. The provisions relied on by Lord Hardie for his decision in

MacGregorwere 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 provideor 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 servicesas 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 ofRobertson, 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

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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' TaxCredit, 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 ofWednesbury

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 ofAnufrijeva 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 inAndersson 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 tostay 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 inBernardand we consider that it was open to Sullivan J to find that

article 8 was infringed on the facts of that case."

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[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 itis otherwise unreasonable for the respondents to have decided as they have.

.

The remainder of the judgement is concerned with discussion of the issues of delay

and title to sue.