In JS v Cardiff City Council  EWHC 707 (Admin), Mrs Justice Steyn issued a stark reminder to public bodies that Court Orders were not “targets to be aimed at” but orders that are required to be complied with. As the Judge said, “the order imposed an obligation of result, not merely an obligation to make reasonable efforts to comply”. Hence a public body that finds itself unable to comply with a Court Order must apply to the Court to vary the order. It cannot just rely on an argument that it has done its best in difficult circumstances but has been unable to do what the court ordered.
In this case, the Judge found Cardiff City Council (“the Council”) in contempt of court for its repeated and multiple failures to comply with mandatory court orders. The orders set dates for the completion of the future placement planning and production of a care and support plan for the disabled Claimant by the Council. The Council failed to comply with the steps set out in the timetable.
The background was that Judicial Review proceedings were brought against the Council by the Claimant’s parents for a breach of its duties to meet the needs of the Claimant under sections 35 and 54 of the Social Services and Well-being (Wales) Act (“the 2014 Act”). The Court found the Council was so clearly in breach of duty that it granted an interim injunction against the Council, emphasising the urgency of the Council taking steps to comply with its legal duties to meet the Claimant’s needs. It then granted final injunctions in largely the same form, with a strict timetable to identify alternative placements.
The Council failed to complete the future placement planning and the care and support plan by the set dates, asked for an extension to the deadline specified in the Order. Reluctantly, the court granted an extended deadline with a view to achieving the practical outcome of having a care and support plan and future placement planning for the Claimant but emphasised that the injunction obliged the Council to achieve the outcome within the timeframe specified.
The Council finally produced a care and support plan by the extended deadline date but failed to complete future placement planning for the Claimant. That breached the mandatory order and the Judge found amounted to a contempt of court.
Mrs Justice Steyn rejected the Council’s submission that identifying and approaching two providers, who confirmed that they could meet the Claimant’s needs, amounted to a ‘completion’ of future placement planning. As the transition planning and assessments by the providers remained outstanding, and the Claimant’s parents did not find the suggested providers agreeable, the provider for learning disability residential placement remained unnamed in the Care and Support Plan submitted by the Council. In the absence of any application to the court to vary the terms of the injunction, or submission of evidence from the senior officer of the Council, the Council was held in contempt of court and publicly named to shame it for its failure to take the court orders seriously.
The message from this case for public bodies is to ensure that, when a Mandatory Court Order has been granted, there is a proper governance system in place to make sure that the public body’s officers have the time and resources needed to take the steps required to comply with the order, and that they are supervised to ensure compliance. Leaving everything to an individual social worker is not sufficient. It is the Council’s reputation that is on the line if a Court Order is breached and the Council should have put systems in place to make sure that its staff took the steps needed to comply with the order.
David Lock QC is a barrister, has co-authored NHS Law and Practice with Hannah Gibbs and is a visiting professor in practice at the London School of Economics.
Faryal Shafi is a public law researcher at Landmark Chambers and assistant editor of Health and Social Care Insight newsletter.