There are two points at which, in my judgment, the respondent local authority has fallen below the requirements of the law. The first concerns the relationship of need to availability. The duty owed to the applicant personally by virtue of section 2(1) of the Chronically Sick and Disabled Persons Act 1970 includes the provision of recreational facilities outside the home to an extent which Islington accepts is greater than the care plan provides for. But the local authority has, it appears, simply taken the existing unavailability of further facilities as an insuperable obstacle to any further attempt to make provision. The lack of a day care centre has been treated, however reluctantly, as a complete answer to the question of provision for Jonathan’s recreational needs. As McCowan LJ explained in the Gloucestershire case, the section 2(1) exercise is needs-led and not resources-led. To say this is not to ignore the existing resources either in terms of regular voluntary care in the home or in budgetary terms. These, however, are balancing and not blocking factors. In the considerable volume of evidence which the local authority has provided, there is no indication that in reaching its decision on provision for Jonathan the local authority undertook anything resembling the exercise described in the Gloucestershire case of adjusting provision to need

It is Miss Richards’ first submission that in order to comply with the statutory duties, both personal and ‘target’, and to demonstrate that regard has been had to other relevant matters, the local authority must prepare a care plan which addresses the issues required by law and, where it deviates from the target, explains in legally acceptable terms why it is doing so. Mr McCarthy responds by pointing out first of all that nowhere in the legislation is a care plan, by that or any other name, required. This Miss Richards accepts, but she contends, in my judgment rightly, that she is entitled to look to the care plan (which is commended in the statutory policy guidance) as the best available evidence of whether and how the local authority has addressed Jonathan’s case in the light of its statutory obligations. If, of course, further evidential material bears on this question, it too is admissible in relation to the challenge before the court. In other words, as I think Mr McCarthy accepts, his submission that a care plan is nothing more than a clerical record of what has been decided and what is planned, far from marginalising the care plan, places it at the centre of any scrutiny of the local authority’s due discharge of its functions. As paragraph 3.24 of the policy guidance indicates, a care plan is the means by which the local authority assembles the relevant information and applies it to the statutory ends, and hence affords good evidence to any inquirer of the due discharge of its statutory duties. It cannot, however, be quashed as if it were a self-implementing document.

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 a fortiori 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.