Neutral Citation Number: [2008] EWHC 1628 (Admin)

CO/3360/2008 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 12 June 2008

B e f o r e: 

MR JUSTICE IRWIN
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Between: 
(1) LL

and

(2) CL

(By her mother and Litigation Friend, LL) 
Claimants

v 

THE LONDON BOROUGH OF MERTON 
Defendant 
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Mr N Armstrong (instructed by Elder Rahim) appeared on behalf of the Claimants
Mr A Sharland and Mr C Butler (instructed by London Borough of Merton) appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE IRWIN:  In this case, which is a rolled‑up application for permission to apply for judicial review and judicial review itself, the claimants' claim is intended to compel the defendant to reconsider the decision taken about the future care of C, as I shall call her.  The review is intended to cover the care plan in general, but focuses particularly on the suggestion by C's family that she should be placed in residential education, for care reasons in addition to any educational consideration.  
2.	The background to the case can be summarised as follows, and I draw this summary from the report from the Child & Adolescent Mental Health Service of South West London ("CAMHS").  The report was dated 14 December 2007.   
"[C] was born at term but apparently several weeks after [Ms L's] waters broke.  She required intensive care for the first week of her life, cried constantly as an infant, and was diagnosed as failing to thrive.   
 [C's] milestones were considerably delayed.  At the age of two years a neurological assessment arranged by Dr Marian McGowan revealed that [C] had Arnold Chiari brain malformation.  This malformation involves the cerebellum and is known to cause a complexity of symptoms, including headaches, neck pain, loss of balance, ringing in the ears, difficulty swallowing, impaired motor skills, chronic fatigue, sleep apnea, tingling of the hands and feet.   
 [C] lives with her mother, her 13 year‑old sister, [M], and her 7 year‑old brother, [C].  Both these children have recently been registered as Children in Need.  There has been no regular contact with the children's father since 2006."  
3.	A little later the report continues as follows: 
"[C] has been know to this service since November 2003.  She has diagnoses of severe learning difficulties, hyperkinetic disorder (ADHD combined type), extreme incoordination/dyspraxia, and multiple autistic social communication impairments.  She also has a long‑term history of various severe allergies, bowel problems (including anal fissures), sleep difficulties and challenging behaviours." 
That is a helpful, accurate and up‑to‑date summary of the position so far as this child is concerned.  There are others in the papers, and I have adopted that one merely for convenience.  
4.	There is no doubt about the degree of difficulty and need that attends C.  The revised core assessment dated 1 April of this year, a document to which we will return, summarises her needs and the response to her needs by her mother, Mrs L.  Reciting the disability, Arnold Chiari malformation, the fact that C is on the autistic disorder spectrum and has attention deficit and hyperactivity disorder, with the associated difficulties I have summarised, this assessment goes on to say: 
"[Mrs L] is very attentive to [C's] needs and addresses any health issues in a timely manner.  She maintains contact with all health professionals involved with [C's] care and ensures that [C] attends all appointments."  
5.	Amongst other favourable references to Mrs L's care and support for her daughter, the assessment goes on to say this: 
"Despite [Mrs L's] continued efforts to establish a clear and structured bedtime routine for [C], she has not been able to manage [C's] sleep difficulties.  The lack of established bedtime routines means that [C] is often over tired, which leads to irritability and increased challenging behaviours.  [C's] disruptive sleep patterns and   aggressive behaviour greatly impacts on [Mrs L] and her other children leaving them exhausted, which in turns effects[sic] their ability to manage on a daily basis."  
6.	Further commenting on the difficulties that are thrown onto the family, this assessment recites that Mrs L ‑ 
"... states that [it] is very difficult to manage and it is impossible to stop [C's] difficult behaviour as she is unable to restrain [C] in any way as she is very strong and [Mrs L] worries that [C] may get hurt.  [Mrs L] stated that [C] has always been a very emotional child and can get distressed and agitated by the slightest thing.  [C] will hit out at family members for no apparent reason particularly siblings, this is very difficult to manage and her mother has great concerns for her other children's safety as [C] gets older and stronger."  
7.	After repeating that Mrs L has found it difficult to establish clear routines to manage C's sleep and behavioural difficulties, the report notes that this is in contrast to C's school and to the Brightwell institution which has been giving respite care.  This assessment continues: 
"It is my opinion that this [that is to say Mrs L's inability to establish clear routines] is not due to a lack of willingness to implement strategies, but due to a number of factors: 1) [C] is not an only child, but one of three in a busy household, who all require [Mrs L's] time and attention.  [Mrs L] has spoken about the lack of time and attention she is able to give to her other children and the increasing support they are giving her.  [Mrs L] feels strongly that the other children are missing out on any childhood activities and experiences due to [C's] needs and behaviour.  
2) It could also be that it has not been possible to establish clear boundaries and routines as [Mrs L] is continually tired due to a lack of sleep most nights.  [Mrs L] feels that this affects her day to day functioning and leaves her with no energy to implement strategies.
3) Another factor is that [Mrs L] is the sole carer for [C] and her siblings and does not have any support networks in the local area." 
I should point out that the reference to support networks is to members of the extended family, rather than support provided by the defendant.
8.	In short, it is not disputed that C has very significant disabilities, presents very significant management problems, that Mrs L has consistently said she is finding it difficult to manage, and described how those problems impact upon her and upon the other siblings within the family.  All of those facts are essentially accepted without any important distinction by the defendant.  Further, it is not disputed that since late 2006 Mrs L has been saying, in perhaps increasingly firm terms, that she is finding it very hard to cope, and that she wishes for the provision of residential education to C.  Despite Mrs L having expressed that view for some time, it is clear that the defendant has disagreed.  Mrs L expressed that view in the course of the preparation of the CAMHS assessment of December 2007, to which I have already made reference by quotation.  It was crucially important for Mrs L to persuade, if she could, those making that assessment of the need for residential education, and she did to so.  
9.	Quoting again from the report of 14 December 2007 by CAMHS, their conclusions include the following: 
"The very high degree of structure, support and containment provided in the school environment is not something that can be provided in any home environment, especially for a child who so needs constant 1:1 attention.  In our opinion the current level of professional support provided which is necessary to maintain this family's functioning leads to an over‑complex and fragmented experience for [C], potentially exacerbating her emotional difficulties.  In that respect we would not expect a foster placement to meet [C's] complex needs.  In addition we suspect the demands made on any family would be highly likely to lead to breakdown of the placement.  
 [C's] positive response to the school environment, in terms of her relative calmness and her engagement in the learning process, suggest that an appropriate educational placement that provided a 24 hour curriculum would be extremely beneficial to her in all respects, particularly educationally and emotionally.  Of course close contact with her family should be maintained.  It is possible that with this intensive input [C] would be enabled to develop the vital daily living skills that she currently lacks." 
10.	The essence of the claimants' complaint is that the London Borough of Merton (the defendant) have never really taken on board the case for residential education based on care terms and based on the whole picture for this whole family, the whole family being within their contemplation, since all these children have been recognised as children in need.  
11.	The sequence of events before December 2007 need not be set out in full detail and has been sufficiently summarised already.  However, from December 2007 and from the writing of that report by CAMHS, it is helpful to look in a little more detail at the sequence of events and how this defendant reacted to the fresh fact that Mrs L's view, that C and indeed the family, required residential education for her in care terms was supported by or rejected by others engaged in the process.  
12.	On 7 January 2008, there was a children in need meeting in respect of all three children.  The report, properly filled out in pro‑forma style, recites that the defendant is engaged with all three children, and recites the level of support of respite care at 120 hours per year.  There is support at Cricket Green School, where C has one‑to‑one support during her education.  This report again recites the difficulties complained of by Mrs L.  So that it is clear the problems were well‑recorded and understood by those with responsibility on behalf of the defendant, I will introduce some further quotations from this report to demonstrate their knowledge and attention: 
"[Mrs L] has reported difficulties managing [C's] behaviour at home.  She is finding it difficult to cope and feels the current level of support and services are not meeting [C's] needs.  She said that [C's] behaviour is severely impacting on the well‑being and functioning of the family.  An Initial Assessment was carried out to include the whole family and to look at the impact that [C's] disabilities have on the other children.  The children were assessed as being children in need."  
13.	A little later, the writer notes that M, the older child, is not going to school; that school attendances have gone down to 69 per cent; that [C] is tearful about school, is wetting the bed; and that relations with the claimant, his sister, are difficult.  The report goes on to recite: 
"[C] has spent some time at Brightwell each week and 2 weekends a month.  The staff at Brightwell feel that [C] is confused about her stay at Brightwell and finds it difficult to manage emotionally.  They feel that for [C] it is almost like a dual life.  However they do not have problems with her sleeping habits at Brightwell.  Through policy it is not possible to [give] [C] any more hours at Brightwell without her becoming a looked after child.  [Mrs L] is currently going through a Tribunal at the moment with regard to [C's] schooling and securing a place for [C] at a residential school." 
14.	It will be evident that, in January 2008, Mrs L was saying all the same things in a clearly articulate way to Merton's staff, who were conducting the review, and that they were aware of the nature and extent of the problems as she saw them.  On 27 February 2008, there was a "Looking after children ‑ review of arrangements", where again the whole family was considered.  There is a pro‑forma report of this discussion, no doubt reflecting procedures intended to ensure that decisions of these meetings are structured decisions, and that all relevant decisions are attended to.  In the course of that, it is noted: 
"[C] has settled well since her transfer to Cricket Green School in September 2007.  
See report attached.  
 [The head mistress] informed the review that she believes [C] is benefiting from the environment in school."  
Towards the end of this report appears the following in a sequence of questions and answers: 
"K.  What else still needs to happen before the plan for this child/young person can be achieved? 
 [C] continues to attend Brightwell for periods of respite care, which has been increased to the maximum of 120 days per year to provide [Mrs L] with support.  
CIN [child in need] Review was held on 11 February 2008 when it was decided that a referral would be made to the OT re bathing aids/facilities and assistance with toilet training; 1‑1 worker for [C] in the home during school holidays.  
L.  Could the child/young person now live permanently with a parent/person with parental responsibility/relative or friend, if additional resources were provided?  
 [C] lives at home with her family and is accommodated under section 20 Children Act 1989 for the purpose of respite care.  
M.  Should a decision be made to change the long‑term plan for this child/young person? 
No." 
15.	At letter N is recited yet again the concerns from Mrs L as to the potential for family breakdown, the difficulty with which she was finding it to deal with C at home, and we see also this: 
"Heather Skinner [one of the social workers involved] ... advised that if there were a family breakdown, social care would identify a foster placement for [C]." 
16.	A little further on it says this: 
"[Mrs L] said that her views about [C's] educational needs are well documented.  [C] now travels to school in a taxi with an escort.  [Mrs L] acknowledged that the extra support she has received from Brightwell has helped her spend more time with her other two children, but that [C] is very demanding and continues to need a lot of attention." 
It is clear that she was at this stage also making once more the well‑known points to the local authority.  
17.	There is an important side issue in this case concerning the question of whether or not there was an effective maximum allocation or provision of 120 respite days per year available to be provided; that is to say, was there a cap at that level on what the defendant local authority could provide by way of respite care?  I will return later in this judgment to the interpretation of the regulations, and to the correctness of that view.  However, it is clear on the evidence, part of which I have just recited, that the defendant believed there was such a maximum and conformed to such a maximum guidance.  As a matter of historic fact, in my judgment that is beyond doubt.  
18.	Later, on 27 February, there was an interim review of educational progress.  It was, in practice, a continuation of the same meeting, quotations from the report of which I have just given.  There was a single change in personnel between the two.  After reciting that the interim review of education followed the child in need meeting, the report then recited once more some of the difficulties faced by C and problems associated with outreach care.  Then there was a review of the statement of educational need, where the report recites as follows: 
"We went on to refer to the statement to see if any changes were needed.  [C] is in receipt of OT, SALT and 1:1.  Visual prompts are used and [C] has access to social skills and life skills lessons.  
No changes to the statement were felt to be needed."  
19.	Under the heading "Further comments", Mrs L was asked for her comments on the educational position: 
"... recognising that L is currently pursuing a Tribunal with a view to an alternative placement for [C].  Mrs L feels that if [C] were in a residential provision that:
• More staff would be available to meet [C's] needs.  
• She would have [more time] for her other children. 
• That there would be more activities to keep [C] occupied.  
 [Mrs L] spoke about the strain of fighting for resources for [C] and the ongoing strain on her health.  She is finding the fight exhausting.  More outreach has helped but the lack of sleep is exhausting." 
20.	Then the headteacher, Mrs Dawson, spoke about the professionals recognising that:  
"... [C's] needs are complex and that there are a large number of adults in her life (home, Brightwell, school, outreach and now a new carer).  Whilst the professionals are positive about small steps, that is what we look for in our professional roles.  We recognise the situation for families can be very different." 
21.	I have deliberately selected reasonably full quotations from that report also, so as to demonstrate once more that Mrs L was making her position extremely clear and in an obviously articulate way; that the problems were evident, were being considered, and were explicitly in the minds of any who were present at the two meetings, or were able to read the two reports.
22.	In relation to these two meetings on 27 February, the claimant says that there is no evidence there was direct consideration given to the revised change of view by the CAMHS professionals, set out in the report of 14 December, whereby those professionals gave explicit support for the first time to Mrs L's desire for residential educational provision.  The defendant says that it is clear that those concerned were considering the question of proposed residential education, and that they were aware, and must have been aware, of the background support for it, although there is no direct analysis of the report of December from CAMHS.  
23.	On 28 February, the day following these two meetings, the claimants' solicitors wrote to the defendant a letter received by the legal department.  The letter is very full, and it is not necessary to set it out in anything like its full extent, but it is helpful to make two or three short quotations from this letter.  After introducing concern as to the situation of the family, the letter reads as follows: 
"The authority is failing to ask itself whether there is a case for a residential school placement when taking into account both education and care considerations together.  Given the strength of the evidence available, and in particular the reports from CAMHS, it appears that it is very difficult for the authority to conclude rationally that there is no such case." 
24.	Later in the letter, the solicitors write as follows: 
"In many respects the matter came to a head yesterday, 27 February, when our client contacted us in enormous distress because she was told that, since residential care is not available, any breakdown in the family arrangement would be met by taking [C] into foster care.  We would observe in passing that it appears that, in making that statement, your representative was ignoring, or had not read, the CAMHS report pointing out that a foster care placement is inherently unsustainable."  
25.	A little later, the letter goes on: 
"We cannot deal with these issues through the SENDIST [being a reference to the educational tribunal for those with special needs] process because that is only concerned with educational needs, not education and care needs; in any event, at this stage SENDIST is only dealing with the refusal to carry out a reassessment..." 
This makes it clear that those within the local authority were having their attention drawn very specifically to these problems, and to the CAMHS report, and that issue was raised by the claimants as early as February 2008.  
26.	At one stage it was suggested by the claimants that the response to the complaints in the course of this litigation had not come from the correct people.  When one begins to look at where the response was formulated, whether in reply to that letter or subsequently, it is clear that the Children's Social Care Team are the group within the defendant local authority giving instructions to the legal department, and indeed giving evidence through the medium of the witnesses, whose names and evidence I will refer to later.  
27.	In considering the criticism that no explicit recital of the CAMHS report was given, counsel for the local authority conceded that there is no such direct reference, but made it clear that his submission was this report must have been, and indeed was, considered by the defendant local authority.  
28.	How did they respond to the letter of 28 February?  On 14 March of this year, a letter in reply was sent from the legal department of Merton to the solicitors for the claimants.  Again, I will quote only part of the letter, which was full in its response: 
"You repeat your request for a 'common assessment' of [C].  The Common Assessment Framework aims to help early identification of needs, leading to a co‑ordinated provision of services.  However, it is not appropriate for every child who may have additional needs, and in particular is not appropriate where specialist assessment is needed.  [C] has complex needs and has already been assessed by a number of specialists, including for her statement of special educational needs, by CAMHS and through her core assessment.  The CAF is a generic assessment that provides an initial assessment of a child's needs for extra services and is not appropriate or useful for [C].  
It is recognised that [C's] core assessment should be kept under review." 
So there we have it clearly stated that the CAMHS report was reviewed by the defendant. 
29.	Later in this letter, the solicitors point out that CAMHS have also been represented "at a number of network meetings organised by the Council to share information".  The letter goes on: 
"The Council has considered the reports of the meetings on 27 February 2008 and does not accept that there is a clear need for a residential school placement for [C].  A boarding school placement would be a prima facie interference with [C's] rights under Article 8 of the ECHR, and would need justification.  The Council does not consider that there is such justification or that such a placement would be in [C's] interests whilst she has a suitable educational placement in a local day school and social care support can be provided for the family to enable her to continue to live at home and within her community.  
 [C's] annual review and the interim review found that she was making progress at school and did not recommend amendment of her statement.
... 
The view of the Children's Social Care team is that every effort should be made to keep [C] at home rather than in institutional care.  She should be with her family if at all possible.  If [C] cannot stay at home, alternatives to an institutional residential placement would need to be considered before a residential school.  We have considered the reservations expressed by CAMHS about fostering but consider [C's] best interests demand that a respite foster placement should be explored.  It is not in [C's] best interests to experience more episodes of institutional care unless it is the last resort.  She, too, has a right to family life."  
30.	It will be evident from the last quotation that the views of CAMHS were considered in general terms by the defendant before this letter was written by their legal department.   
31.	I turn to the witness statements of two of the witnesses for the defendant, the first being Ms Elena Songui.  She is the team manager for the Children with Disabilities Team of London Borough of Merton.  She is a qualified social worker with eight years experience, and manages the team of specialist social workers engaged with the defendant's responsibilities for children.  The statement records the history and the use of fostering in the course of the story.  It also records Mrs L's reluctance to engage with fostering, in part perhaps because of Mrs L's own experience as a young person.  The statement goes on as follows: 
"I can confirm that it has never been the view of the Council's social care teams that [C] should have a residential care placement.  There is no record on [C's] file that a representative [that means a representative of the defendant's social care team] has expressed the view that [C] should be placed in a residential school.  Case records clearly state that the local authority's priority would be to keep [C] within her family environment with appropriate support.  For instance, on 11 February 2008, there was a discussion between [Mrs L] and Heather Skinner in reference to a residential school placement.  Case records indicate that [Mrs L] was informed of the procedures involved in requesting a residential school placement, and that social services priority would be to support [C] in her home environment." 
32.	A little later the witness statement goes on: 
"Given [C's] ability to respond positively to behaviour management within more than one environment, the Council disagrees with the CAMHS assessment that a foster placement would not be expected to meet [C's] complex needs.  [Mrs L] has expressed opposition to any fostering for any of her children, based on her own past experiences.  Although we can understand why she may be reluctant to consider the advantages that may be gained from foster care, it is the view of the local authority that the request for a residential placement for [Mrs L] is not based on [C's] needs."
33.	It follows from that evidence that not merely did the team at Merton consider generally the views of CAMHS: CAMHS' specific reservations about fostering must have been considered, because there is an explicit reference to such reservations in the letter.  That can only have come from the report of December.  It follows that, in my judgment, there is no basis for saying that the defendant was not aware of, or had not given its mind to, what CAMHS was saying in support of Mrs L.  It is plain, on the contrary, that they did.  The essence of what happened  here is that they disagreed with the view taken by Mrs L and by CAMHS. 
34.	Later in the witness statement, Ms Songui confirms that she had discussed [C's] case with her line manager, the Service Manager for Community Support.  There was also a discussion with the Special Educational Needs Manager, Mr Collins.  He confirmed that C's educational needs were being met at Cricket Green School.  At that point the statement goes on:  
"Ms Caslake [the Service Manager for Community Support] had informed Mr Collins that there would not be care advantages to [C] from a residential placement and that on the contrary there are advantages to her from being supported in her home environment or, insofar as this was not possible, in non‑institutionalised care.  The Council's position therefore is that a residential school placement is not necessary to meet [C's] educational or social care needs."
35.	The truth of that evidence is not challenged, and the substance of that evidence was confirmed by the evidence of Mr Collins.  In the end, this is simply a disagreement about the right answer to a very difficult problem.
36.	The defendant, in my judgment, has properly considered all the evidence that has been set before it and its staff.  Unless a defendant fails to consider evidence or relevant information, or takes an irrational view when deciding what to do in the face of such evidence, then it is the defendant's responsibility, within the reasonable range of decisions, to decide the proper outcome.  Unless there is a failure to consider evidence, or unless the decision is irrational, courts must not intervene.  I find no basis in the evidence here for either contention, and it follows that there will be no order to quash the continuing decisions made by the defendant in this case.  
37.	For the sake of completeness, it may be helpful to return to the updated core assessment of April 2008.  Before addressing its conclusions, that core assessment involved Cathy Taylor, a principal speech and language therapist, and one of the signatories to the CAMHS report of December 2004.  So at this stage it is absolutely clear that CAMHS were represented in the discussion, because Cathy Taylor was one of the participants.  The conclusion reached on the key issue here was, as I have already indicated, that there was no need, for educational or care reasons, to put C into residential educational provision. 
38.	I turn now to the other question which I have described as a sub‑issue, but which may be of some importance; that is to say, whether or not there is a 120‑day maximum, by operation of law, on the provision of respite care.  I begin with the Arrangements for Placement of Children (General) Regulations 1991, which remain in force save for an important amendment which I will summarise.  These regulations impose various obligations as to the decision‑making concerning short‑term placements; the notification of such arrangements to various parties; health assessments before such placements can properly be made, all in relation to "a placement" or "the placement".  It follows that the regulations are intended to impose a reasonably significant administrative burden on local authorities bringing about respite care by relation to any single placement.  With that burden in mind, says counsel for the claimants (and here I agree with his interpretation), Regulation 13 reads as follows: 
"Application of Regulations to short‑term placements 
13(1)  This regulation applies where a responsible authority has arranged to place a child in a series of short‑term placements at the same place and the arrangement is such that no single placement is to last more than four weeks and the total duration of the placements is not to exceed 120 days in any period of 12 months. 
 (2) Any series of short‑term placements to which this regulation applies may be treated as a single placement for the purposes of these Regulations." 
39.	It seems to me correct that these regulations do not impose a maximum of 120 days on the provision of respite care.  All that the regulation does is to say that, where short‑term placements are at the same place, and no single placement lasts more than four weeks, and where the total duration of such placements does not exceed 120 days in any period of 12 months, then such placements may be treated as a single placement, reducing the administrative burden of the regulations.  
40.	The period was extended to 120 days by an amending regulation of August 1995 (SI 1995/2015).  However, all the amending regulation did was to extend the total of 90 days to a total of 120 days, without amending the sense and meaning of the underlying 1991 Regulations.  
41.	However, at the same time as the amending regulations were promulgated, the Department of Health issued guidance in the form of a Departmental Circular dated 9 August 1995, and entitled "RESPITE CARE: SERIES OF SHORT‑TERM PLACEMENTS OF CHILDREN".  The guidance begins by noting that: 
"Following the consultation detailed in LASSL(95)4 
Department of Health Ministers have decided to 
implement easements to the requirements governing 
respite care placements (that is a series of short‑term placements)."
42.	In the main body of the guidance itself, it is made clear that the changes to the regulations are modest: 
"The easements to the regulatory requirements address the frequency of reviews, the timing of the 
first visit, the number of placement days allowed in any 12 month period."
43.	At paragraph 2.2, the guidance recites: 
"In order to avoid an unnecessarily onerous degree of regulation, the Arrangements for Placement Regulations, the Foster Placement, the Placement of Children with Parents etc Regulations, and the Review of Children’s Cases Regulations all 
make provision for a series of short placements to be treated as one ... There has been no change to the requirement that all placements must be in the same place (that is, with the same foster carers or in the same residential unit) in order for a series of short‑term placements to be treated as one."
44.	So far, so good.  However, the guidance goes on to read as follows.  Under the sub‑heading, "THE NUMBER OF PLACEMENT DAYS ALLOWED", the text reads: 
"3.1  To provide greater flexibility in providing the short‑term accommodation service, the maximum number of days allowed in any twelve month period has been increased from 90 to 120 days.  Returns of statistical information to the Department of Health 
suggest that few children will be affected but the easement will allow a decrease in the regulatory requirements in specific instances. This is a maximum number of days and it is for local 
authorities to decide to what extent policy and practice in their respite care services should be revised. The relaxation of Regulations is not intended to encourage a range of respite care 
arrangements which may undermine the security, stability and consistent care which a child needs."
45.	I am bound to observe that the generality of the language in the guidance seems to me to go beyond the effect of the wording of the regulations themselves.  It is not in the least surprising that local authorities reading the guidance might take the guidance as interpretation of the regulations, and so come to believe that there was in law a stipulation of a maximum number of days (formerly 90 days; now 120 days).  It does seem to me possible that drafters of the guidance themselves were under that mistake.  What is also clear is that the Department in truth was giving guidance to avoid more than that quantity of respite care.  So one ends with a degree of tension between the legal meaning of the regulations, where the maximum is only a maximum of the period which can be treated as once placement, intended to reduce the administrative burden associated with a series of such placements, through to the language of the guidance, which may itself be based on a misunderstanding of the regulation but certainly goes on to advise against too much or too extensive use of respite care.  
46.	My conclusions on this issue are as follows.  Firstly, the regulations do not set a maximum for respite care within any one year.  Secondly, the guidance is worded as if it does set such a maximum and it is not a surprise if local authorities read it in that way.  Thirdly, there clearly is a policy developed in the guidance against too much reliance on respite care, although of course in the absence of legal stipulation, it is for an individual local authority to form its own policy as to the right approach.
47.	I have already observed that the defendant in this case treated the 120 days as an absolute maximum.  I find that that did not affect the outcome here, for the reason advanced by counsel for the defendant.  Had Merton believed there was an opportunity of more than 120 days respite care, then it was more likely rather than less likely that they would have opted for increased respite care, rather than moving to residential educational provision.  That maximum, if it affected the decision at all, will have favoured the position sought by the claimants.  
48.	It follows that the misunderstanding as to the legal maximum, which as I have observed was understandable given the guidance, was not a material error and had no effect on the decision.  It cannot lead to a quashing of the continual repeated decisions about what was best for C.  
49.	For all those reasons, the application for permission to apply for judicial review is refused.
50.	MR ARMSTRONG:  I am grateful, Lord.  I rise very briefly for two matters.  Firstly, I am legally aided so I seek a legal aid assessment. 
51.	MR JUSTICE IRWIN:  Certainly.
52.	MR ARMSTRONG:  Secondly, I respectfully remind your Lordship that you indicated at the substantive hearing last week that this ought to be anonymised.  I am conscious that there are law reporters here. 
53.	MR JUSTICE IRWIN:  Yes, I made an order anonymising the case.  I have throughout done my best, although one sometimes makes a slip up, but you will understand that nothing should be reported that would identify this family.
54.	MR ARMSTRONG:  I am grateful.
55.	MR BUTLER:  My Lord, I take it then that there is no application for costs by the claimants.  Equally, the local authority seeks no order in that respect.  As to your Lordship's finding in respect of the regulations, I do formally ask for permission to appeal, noting of course what your Lordship said.  Your Lordship heard from Mr Sharland that this is an interpretation applied by a number of local authorities, not just this one, and so it follows that this is a matter of some general importance.  Further, I say that this is a short point of construction; it is an appropriate matter to be looked at by the Court of Appeal.
56.	MR JUSTICE IRWIN:  You will have to ask them.  I have some sympathy with your viewpoint, but it seems to me that probably the appropriate thing is for the Department to reconsider its own view and either reaffirm the guidance in distinction to the interpretation that I have reached or not.  At the moment it seems to me local authorities can be fully forgiven for thinking that there is such a maximum because of the guidance given, and it should be for the Department to reconsider and then make a decision one way or the other.
57.	MR BUTLER:  I am very grateful.  (pause)
58.	MR JUSTICE IRWIN:  Yes, it may be entirely academic, Mr Armstrong, but because it was a rolled‑up plea, there is a degree of ambiguity about how you resolve such a case.  I think it is fairer to say that this was an arguable challenge, to grant you permission, but to refuse judicial review.  I think in fact that better reflects the way the matter developed and the outcome.  It may be only technical, but I think that is a better way of putting it. 
59.	MR ARMSTRONG:  It may make a difference to the Legal Services Commission.
60.	MR JUSTICE IRWIN:  If so, you should certainly have that difference.
61.	MR ARMSTRONG:  I am grateful.