This section, therefore, creates a positive duty to arrange for recreational and ‘gateway’ educational facilities for disabled persons. It is, counsel agree, a duty owed to the individual and not simply a target duty. I will come later to the question of its legal ambit and content. It introduces in turn section 7(1) of the Local Authority Social Services Act 1970:

(By an amendment introduced into the statute, section 7A requires local authorities to exercise their social services functions in accordance with any such directions as may be given to them by the Secretary of State.)

What is the meaning and effect of the obligation to ‘act under the general guidance of the Secretary of State’? Clearly guidance is less than direction, and the word ‘general’ emphasises the non-prescriptive nature of what is envisaged. Mr McCarthy, for the local authority, submits that such guidance is no more than one of the many factors to which the local authority is to have regard. Miss Richards submits that, in order to give effect to the words ‘shall act’, a local authority must follow such guidance unless it has and can articulate a good reason for departing from it. In my judgment Parliament in enacting section 7(1) did not intend local authorities to whom ministerial guidance was given to be free, having considered it, to take it or leave it. Such a construction would put this kind of statutory guidance on a par with the many forms of non-statutory guidance issued by departments of state. While guidance and direction are semantically and legally different things, and while ‘guidance does not compel any particular decision’ (Laker Airways Ltd v Department of Trade [1967] QB 643, 714 per Roskill LJ), especially when prefaced by the word ‘general’, in my view Parliament by section 7(1) has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.

A failure to comply with the statutory policy guidance is unlawful and can be corrected by means of judicial review: R v North Yorkshire County Council ex p Hargreaves (1997–98) 1 CCLR 104 (Dyson J, 30 September 1994). Beyond this, there will always be a variety of factors which the local authority is required on basic public law principles to take into account. Prominent among these will be any recommendations made in the particular case by a review panel: R v Avon County Council ex p M [1994] 2 FLR 1006 (Henry J). In contradistinction to statutory policy guidance, a failure to comply with a review panel’s recommendations is not by itself a breach of the law; but the greater the departure, the greater the need for cogent articulated reasons if the court is not to infer that the panel’s recommendations have been overlooked.

A second source of considerations which manifestly must be taken into account in coming to a decision is the practice guidance issued by the Department of Health. This currently takes the form of a Practitioners’ Guide entitled ‘Care Management and Assessment’, which sets out ‘a set of principles’ derived from ‘current views of practice’. The guidance breaks care management down into a series of stages, moving through communication and assessment to assembly of a care plan, and then on to the implementation, monitoring and periodic review of the plan.

…

The care plan, as Mr McCarthy readily admits, does not comply either with the policy guidance or the practice guidance issued by central government. There has been a failure to comply with the guidance contained in paragraph 3.24 of the policy document to the effect that following assessment of need, the objectives of social services intervention as well as the services to be provided or arranged should be agreed in the form of a care plan. For the reasons which I have given, if this statutory guidance is to be departed from it must be with good reason, articulated in the course of some identifiable decision-making process even if not in the care plan itself. In the absence of any such considered decision, the deviation from the statutory guidance is in my judgment a breach of the law; and so afortiori is the reduction of the Flexiteam service from 3 hours as originally agreed, whatever the activity, to 3 hours swimming or 1½ hours at home. I cannot accept Mr McCarthy’s submission that the universal knowledge that no day centre care was available for Jonathan was so plainly the backdrop of the section 2 decision that there was no need to say so. It is one thing for it to have been a backdrop in the sense of a relevant factor, but another for it to have been treated as an immoveable object. The want of any visible consideration of it disables the respondent from showing that it was taken into account in the way spelt out in the Gloucestershire case. I do, however, accept Mr McCarthy’s submission that Miss Richards’ further contention that the respondent has failed to consider alternatives to day centre care for Jonathan comes so late that there has been no opportunity to file evidence about it. Further, the whole situation in relation to day centre provision is about to change, making this element marginal save perhaps by way of fallback.

The care plan also fails at a number of points to comply with the practice guidance on, for example, the contents of a care plan, the specification of its objectives, the achievement of agreement on implementation on all those involved, leeway for contingencies and the identification and feeding back of assessed but still unmet need. While such guidance lacks the status accorded by section 7 of [Local Authority Social Services Act 1970], it is, as I have said, something to which regard must be had in carrying out the statutory functions. While the occasional lacuna would not furnish evidence of such a disregard, the series of lacunae which I have mentioned does, in my view, suggest that the statutory guidance has been overlooked.

In such a situation I am unable to accede to Mr McCarthy’s submission that the failures to follow the policy guidance and practice guidance are beyond the purview of the court. What he can, I think, legitimately complain of is the fact that both of these submissions, in their present formulation, have emerged for the first time in the presentation of the applicant’s case in court and were not adumbrated earlier. While he has not suggested that the lateness of the points has prevented material evidence from being placed before the court, Mr McCarthy may be entitled to rely on it in resisting any consequential relief, and I will hear him in due course on this.