AC-2025-LON-001008 - [2025] EWHC 2568 (Admin)

The claim before me is put on the basis of process irrationality, a concept explained by Chamberlain J in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs, and another [2025] EWHC 370 (Admin), at [55]-[56]:

“55.

In most contexts, rationality is the standard by which the common law measures the conduct of a public decision-maker where there has been no infringement of a legal right, no misdirection of law and no procedural unfairness. It encompasses both the process of reasoning by which a decision is reached (sometimes referred to as ‘process rationality’) and the outcome (‘outcome rationality’): see e.g. R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2019] 1 WLR 1649, [98] (Leggatt LJ and Carr J).

56.

Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that ‘does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic’: R v Parliamentary Commissioner for Administration ex p. Balchin [1998] 1 PLR 1, [13]. In similar vein, Saini J said that the court should ask, ‘does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?’: R (Wells) v Parole Board [2019] EWHC 2710 (Admin), at [33].”

Mr Persey also relied on the decision in R (KP) in support of his submission that the present case called for a high intensity of review by the court: see Chamberlain J’s judgment at [75]-[78]. I do not find the concept of highly intense review, or “anxious scrutiny” as it is often called, to be particularly helpful in the present case. R (KP) concerned a decision by the Home Secretary to refuse leave outside the rules to the claimant to enter the UK from Diego Garcia. The claimant challenged the decision on the grounds that it was irrational because it left him facing a serious risk to his health and life. The discussion of the standard review in Chamberlain J’s judgment begins at [58] and considers the line of authorities stemming from the decision of the House of Lords in Bugdaycay v Secretary of State for the Home Department [1987] AC 514. This is not the place to review the case-law on anxious scrutiny. But I note that the concept is usually invoked when interference with rights—typically legally protected human rights—is alleged. That, indeed, was the context in which the point was considered in R (KP): see [75]. Many administrative decisions have significant implications for individuals, but I should be suspicious of too promiscuous an invocation of the concept of anxious scrutiny. With reference to the present case, I make two observations. First, the intensity of review will depend on both the legal context (the nature of the right asserted) and the factual context (the subject matter impugned): see R (KP) at [63], citing R (Horeau) v Secretary of State for Foreign and Commonwealth Affairs [2020] EWCA Civ 1010, [2021] 1 WLR 472, at [154]. See also R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, per Laws LJ at [18]: “the intensity of review in a public law case will depend on the subject matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification.” Second, as regards anxious scrutiny, De Smith’s Judicial Review (9^th edition) makes the important point at para 6-061 (citations omitted):

“However, such heightened scrutiny is not the same as merits or ‘correctness’ review. The courts have urged a common sense approach. Thus, ‘the concern of the court ought to be substance not semantics’, so it is inappropriate to focus ‘on particular sentences’ in a decision-maker’s determination ‘and to subject them to the kind of legalistic scrutiny that might perhaps be appropriate in the case of a statutory instrument, charter party or trust deed’.”

In R (KM) v Cambridgeshire County Council [2012] UKSC 23, [2012] PTSR 1189, the Supreme Court explained the correct approach to decisions under section 2 of the Chronically Sick and Disabled Persons Act 1970. (The case concerned section 2(1) of that Act, but for present purposes what was said is equally applicable to section 2(4).) Lord Wilson JSC, with whom the other Justices agreed, said:

“15.

When a local authority is required to consider whether it is ‘necessary in order to meet the needs of that person for that authority to make arrangements for’ the provision of any of the matters on the service list [that is, the list of arrangements in section 2(1); in the present case the service list is in section 2(6)], it is required to ask itself three questions and should do so in three separate stages: (i) What are the needs of the disabled person? (ii) In order to meet the needs identified at (i), is it necessary for the authority to make arrangements for the provision of any of the listed services? (iii) If the answer to question (ii) is affirmative, what are the nature and extent of the listed services for the provision of which it is necessary for the authority to make arrangements? There is a fourth potential stage of the inquiry which I will identify in para 23 below.

…

21.

It is common ground that, once the second stage has been passed … by an identification of the requisite necessity and thus of the eligibility of the needs, the duty of the local authority to make provision for them in accordance with the third and fourth stages of the inquiry becomes absolute.

…

23.

[I]n cases like the present in which a disabled person qualifies for a direct payment in lieu of its own provision of services to him, the local authority is required to proceed to the fourth stage as follows: (iv) What is the reasonable cost of securing provision of the services which have been identified at (iii) as being those for the provision of which it is necessary for the authority to make arrangements?

…

36.

… I agree with Langstaff J in R (L) v Leeds City Council [2010] EWHC 3324 (Admin) at [59] that in community care cases the intensity of review will depend on the profundity of the impact of the determination. By reference to that yardstick, the necessary intensity of review in a case of this sort is high. Mr Wise also validly suggests that a local authority s failure to meet eligible needs may prove to be far less visible in circumstances in which it has provided the service-user with a global sum of money than in those in which it has provided him with services in kind. That point fortifies the need for close scrutiny of the lawfulness of a monetary offer. On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court; and some regard must be had to the court’s ignorance of the effect upon the ability of an authority to perform its other functions of any exacting demands made in relation to the manner of its presentation of its determination in a particular type of case. So the court has to strike a difficult, judicious, balance.”

Mr Persey’s submissions to me may be summarised as follows. The defendant has not grappled with the issues, with the result that there is a critical gap in its reasoning: the decision does not add up but rests on a “leap of logic” or even a simple mistake. At the very least, it fails to give a rational explanation for the withdrawal of the direct payments and the subsequent failure to reinstate them, even though the social worker who conducted the latest CFA in June 2025 had expressly mentioned the need to explain to the claimant’s mother why the direct payments had stopped. The lack of a logical or evidential basis for the decision in March 2025 (and indeed the subsequent decision in June 2025) can be seen by considering a number of matters. First, the initial decision to stop the social care direct payments in September 2024 was the product not of any holistic assessment that the claimant did not need to have the social care but of piecemeal decisions by the three teams in the CSC, whereby each of them in turn decided that the claimant was not within its remit. This resulted in completely circular reasoning: as none of the teams was to be involved, there was “no one to monitor the package” (Ms Mazambani’s email mentioned in paragraph 21 above). Second, Mr Parsley himself clearly did not understand that a consequence of the several decisions by the individual teams was the termination of the social care direct payments. Third, even Ms Heritage’s witness statement, filed with the defendant’s detailed grounds, does not give a cogent explanation of the decision in September 2024. Fourth, the defendant has never directly addressed the question whether the social care package is needed by the claimant. It has identified what it says she does need, but the withholding of social care direct payments appears to be treated as a necessary consequence of the decision of each of the three CSC teams that the claimant is not within its remit. Consequently, both of the two latest CFAs are dependent on the decision taken in September 2024.

Fifth, the defendant’s policy document, 0-25 Disabilities Service – Levels of Need (September 2024), shows that, in cases not meriting the involvement of the Specialist 0-25 Disabilities Service, other assistance, including direct payments, may be appropriately given. At page 10, on “Understanding the Levels of Need”, the document states:

“Where children or young people are referred into Children’s Social Care as meeting three or more indicators that show they have a complex or severe disability, the referral team may signpost directly to the Specialist 0–25 Disabilities Service, who will undertake an assessment and determine what support is required or what relevant short breaks are required.

Many children or young people will be assessed as meeting the indicators of mild or moderate disability and will therefore receive an assessment that is from various Children’s Social Care Teams, Child and Adolescent Mental Health or from Early Help (all of whom can also signpost to relevant short breaks). Where those assessments show that the child or young person has indicators within the complex or severe categories, they may be referred into the Specialist 0–25 Disabilities Service.”

At page 17, the document sets out the support that is available at each level. The support available for Moderate disability is listed as follows: Local Offer; Universal provision – early years; Universal provision – youth and play; Parenting support; Parent Carer / Sibling carer assessment (as part of C&F assessment); Care Act Assessment; Direct Payments; Early Help; and Lambeth Contact – Parent Participation and Engagement. Thus direct payments were still available as a matter of discretion for a person, such as the claimant, with a moderate level of disability. Yet the defendant has not addressed this and, as is now apparent, appears to have disregarded it as a possibility.

Mr Persey does not contend that the decision not to reinstate the social care direct payments is itself irrational: this is not an outcome rationality challenge. But he submits that the process of consideration and reasoning that resulted in the decision—and in the later decision in June 2025—fails the test of process rationality.

For the defendant, Mr Harrop-Griffiths made two basic points. First, the claimant could only be entitled to direct payments if the defendant decided for the purposes of section 17 of the Children Act 1989 that her needs called for the provision by it of a service in exercise of its functions under section 17. Each of the three teams in CSC had decided, repeatedly, that the claimant was not eligible to receive services from it. It is not being argued that any of those decisions was wrong: it has never been contended that the claimant ought to have been receiving provision from the CWD team or the FSCP team, and it is no part of her case in these proceedings that she is or might be eligible for short breaks. Therefore there is no basis for the complaint about termination of the direct payments, because there is nothing to hang such payments on. Second, since the original decision in September 2024 the defendant has on two separate occasions carried out a fresh assessment. Each assessment was carried out with specific regard to the claimant’s social care needs, and on neither occasion did the defendant consider that the claimant required social care funded by direct payments. There is no proper basis for imputing to the defendant a desire to (so to speak) cover its back regarding any shortcomings in its decision in September 2024, and it is unjustified to imply that the defendant’s employees have not carried out the assessments with an open mind. In these circumstances, Mr Harrop-Griffiths submitted that there were no grounds for a finding of unlawfulness against the defendant. He also submitted that, if to the contrary there were any unlawfulness in the decision taken in March 2025, the further decision in June 2025 showed that the challenge was now redundant and that, if necessary, the court should refuse relief on the basis of section 31(2A) of the Senior Courts Act 1981. He also observed that Mr Persey was pursuing only declaratory relief, not a quashing order or a mandatory order, and that such relief was unwarranted on the facts of the case.

Although I see force in Mr Harrop-Griffiths’ submissions, I have come to the view that the claimant is correct to complain that the CFAs in both March and June 2025 are tainted by process irrationality. This is by no means to say that I consider that the conclusions of those assessments were wrong and that the claimant is entitled to reinstatement of direct payments for social care. Those are matters for the defendant to determine. But in my judgment its decisions hitherto have not been reached by a sufficient process of reasoning to withstand scrutiny.

The essential problem is that the termination of the social care direct payments was the result not of an assessment that the claimant did not need the provision of social care direct payments but rather of the decisions by each of the three teams within the CSC that the claimant did not qualify for its services. This is clear from the foregoing narrative in respect of the events of September 2024. The logic of that initial decision has clearly carried through into the CFAs in 2025: each begins by acknowledging that the assessment is required because of the dispute about the termination of direct payments for social care, but thereafter they do not actually address directly the question of direct payments but rather deal with it by not mentioning it as a potential option. This is not merely a matter of placing an interpretation on silence; though I regard the failure to address the matter expressly, with reasons, as a failure of process rationality in circumstances where a valuable service had been withdrawn from the claimant without explanation. I pressed Mr Harrop-Griffiths on this point, and his position—both initially and after I had risen to allow him to take instructions—was that, as the CWD team, the FSCP team and the Short Breaks team comprise the entirety of Lambeth’s CSC, and as the claimant had been assessed as ineligible for support from any of these teams, she could not be eligible for direct payments for social care pursuant to sections 17 and 17A of the Children Act 1989.

In my judgment, that cannot be right. The questions for the defendant were those identified by Lord Wilson in R (KM) v Cambridgeshire County Council at [15]. The starting point for the defendant must be to identify the claimant’s needs and then to ask whether it is necessary to make arrangements for the provision of any of the services listed in section 2(6) of the Chronically Sick and Disabled Persons Act 1970. The defendant’s approach, however, has been to ask, in effect, whether the claimant requires the particular services provided by the CWD team (which she does not, because she has only moderate but not severe disability) or by the FSCP team (which she does not, because there are no safeguarding concerns over her) or by the Short Breaks team (which she does not, because “short breaks are for young people who have profound and complex needs and require additional support in the community to complete day to day skills of daily living”: see para 19 above); and, when the answer to that question is negative, to conclude that the claimant has no social care needs (as distinct from needs that can be met by special educational provision or by mental health services). But what if, though not eligible for the services available for children with serious disability, the claimant needs a measure of social care funded by direct payments? The defendant’s approach simply precludes that question. The consequence is illustrated by the way in which direct payments were terminated in September 2024 (contrary, it seems, to the expectation of the social worker with responsibility for the claimant) and by the failure of the two recent CFAs to deal expressly with the question of direct payments.

The problem is thrown into further relief by the defendant’s policy document, 0-25 Disabilities Service – Levels of Need. As already mentioned, the policy lists “Direct Payments” as one of the kinds of support available for children with moderate disability. Such children will not qualify for support from the CWD team (now the 0-25 Disabilities Service), and there is nothing in the policy document to link the availability of direct payments for children with moderate disability to safeguarding concerns. Therefore, if the defendant’s position in these proceedings is correct, it is unclear why direct payments should be mentioned as an available means of support for children with moderate disability. When I pressed Mr Harrop-Griffiths on this, he could not explain the reference to direct payments for children with moderate disability and suggested that it might have been included by mistake. It seems to me that a far more likely explanation is that the policy document recognises that a child with only a moderate but not a severe disability might nevertheless have a need that requires to be met by the provision of social care direct payments. Whatever the explanation, the apparent decision to rule out ad limine the very support that the claimant was receiving until September 2024, although the defendant’s own policy confirms that support of that nature is in principle available, calls for proper justification.

I have full regard to the fact that the defendant has, in good faith as I accept, carried out two assessments this year and has not identified the provision of social care direct payments as necessary to meet the claimant’s needs. But for the reasons given above I regard both of those assessments as having been skewed by faulty reasoning and curtailed analysis. I repeat that this is not to say that a different conclusion ought necessarily to be reached as to the claimant’s needs and the arrangements necessary to meet them. But it is to say that, in the discharge of its ongoing duties to the claimant, the defendant must address the correct questions and not permit its own organisational arrangements to limit the scope of the available answers. If the defendant concludes that the claimant does not have a need for social care direct payments, it will have to say so in terms and give the reasons for that conclusion.

The claim form seeks a quashing order in respect of the CFA of 20 March 2025 and a mandatory order requiring the defendant to reassess the claimant’s needs. In submissions to me, Mr Persey did not pursue either of those remedies, because of the continuing nature of the defendant’s duties towards the claimant. Instead, he sought a declaration, the terms of which would be dependent on the terms of my judgment. My present view, however, is that, while the continuing nature of the defendant’s obligations makes a quashing order unnecessary, a declaration is neither necessary nor appropriate. I shall make a mandatory order for a reassessment to be carried out in accordance with the terms of this judgment. I am willing to hear counsel further on the question of any other appropriate relief, if they think it necessary.