8.56R v North Yorkshire CC ex p William Hargreaves (1997–8) 1 CCLR 104, QBD
Account must be taken of the service user’s views even where they are difficult to ascertain, for whatever reason
Facts: a dispute arose between Mr Hargreaves and North Yorkshire as to what form suitable respite care ought to take for Mr Hargreaves’ intellectually impaired sister, Beryl Hargreaves. North Yorkshire had experienced great difficulty in communicating with Ms Hargreaves, exacerbated by Mr Hargreaves’ overly protective actions. However, Ms Hargeaves had demonstrated an ability to express preferences and there was some evidence that her preferences were not identical to her brother’s.
Judgment: paragraphs 3.15 and 3.25 of the statutory guidance at the time, the Policy Guidance, required local authorities to involve the individual service user in the assessment process and take account of their preferences. At 112H, Dyson J held that:
… the Respondent made its decision without taking into account the preferences of Miss Hargreaves on the issue in question. It must follow that the decision was unlawful in the sense that it was made in breach of paragraphs 3.16 and 3.25 of the Policy Guidance.
Comment: no doubt, had it been impossible or impracticable to ascertain Ms Hargreaves’ preferences, North Yorkshire’s failure to do so would have been lawful because it would have had a cogent reason for departure from the statutory guidance. However, under the current statutory scheme, the question would arise as to why the local authority had not appointed an independent advocate, or an IMCA, see:
•involvement/independent advocates/relevance of Mental Capacity Act 2005, above (para
7.53); and
•R (SG) v Haringey LBC [2015] EWHC 2579 (Admin), (2015) 18 CCLR 444 (see para
8.68 below), where an assessment was quashed owing to the local authority’s failure to appoint an independent advocate, in breach of section 67 of the Care Act 2014.