Case No: CO/6429/2009
Neutral Citation Number: [2009] EWHC 3412 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Leeds Combined Court
The Courthouse
1 Oxford Row
Leeds LS1 3BG

Date: 22nd December 2009

Before :

HIS HONOUR JUDGE S P GRENFELL
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Between :

	THE QUEEN on the application of
HENRYK STOJAK	Claimant	
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	SHEFFIELD CITY COUNCIL	Defendant	

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Mr Stephen Cragg (instructed by Essential Rights Legal Practice) for the claimant 
Mr Sam Grodzinski (instructed by Sheffield City Council) for the defendant

Hearing date: 20th October 2009 supplementary written submissions received by 17th November 2009
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JUDGMENT
His Honour Judge Grenfell: 
1.	Mrs Stella Stojak, the claimant Mr Stojak’s mother, had been detained in hospital under section 3 Mental Health Act 1983 in June 1991.  In November 1991 she was discharged from hospital to a nursing home where she lived till she died on the 12th December 2003.  Under section 117 the Local Authority, Sheffield City Council (“Sheffield”), had a duty to provide after-care services to such a person.  It was not until the 1999 decision of Sullivan J in ex parte Watson [2000] LGR 318 ultimately affirmed by the House of Lords under the name of R v Manchester CC ex p Stennett [2002] 2 AC 112, that the law became clear that the duty under section 117 was a free standing duty to provide after-care services and that the Local Authority was not entitled to charge for them.
2.	Following this clarification of the law, but after Mrs Stojak had died and not until 2006 her family sought reimbursement of funds that had over the years since November 1991 been spent on providing after-care services for her, including in particular, the sale of her house to pay for care accommodation.  The family accepted the Local Authority’s offer of £8,509.48 in respect of the provision of after-care services after April 2002 and without prejudice to any action in respect of the provision before then.  This had been achieved using the services of a Mr Bateman, an advocate who specialised in ‘welfare rights and social policy.’  By January 2007 Sheffield made their position clear.  The Local Government Ombudsman for the region had advised them that Local Authorities were not responsible for the refund of charges in respect of people with preserved rights under Section 26A National Assistance Act 1948 (contained in section 43 of the NHS and Community Care Act 1990).
3.	In my view, it would be arguable in principle whether Sheffield had been under a duty to finance Mrs Stojak’s after care services in the period between 1991 and 2002.
4.	However, it is clear that this claim and application for judicial review has been brought long after the 3 month time limit for bringing such an application had expired.  In order to have permission to proceed Mr Stojak has to make out a case to seek the court’s discretion to extend time, if the justice of the case allows it.
5.	When this matter came before His Honour Judge Kaye QC as an application on paper, he directed an oral hearing to consider, in particular, the reasons for delay, because the position appeared somewhat complex.  It is to that position that I now turn.
6.	Following the Local Government Ombudsman’s report in 2003 there was a trawl for people who had been caught by the earlier interpretation of section 117, but that did not in fact reach Mrs Stojak.  It is clear that it was not until a chance discussion with Mr Bateman in 2006 revealed that Mrs Stojak might well have been entitled to free services after her discharge in 1991 that Mr Stojak, her son, had any idea that a claim could be brought in respect of any failure on the part of the Local Authority.
7.	Sheffield’s initial response on the 18th August 2006 was to accept that Mrs Stojak had been recorded as detained under section 3 Mental Health Act 1983; that she went into care as a ‘self funder’ and had become one of their ‘preserved rights’ clients entitled to a higher rate of income support, which status ended on the 8th April 2002 when financial responsibility for such clients passed to Sheffield; that she had been charged under community care legislation only, because any entitlement under section 117 had not been known in at that time; that a sum plus interest was offered to cover the period 8th April 2002 to her death; that Mr Stojak was advised to contact the Pension Service in respect of the period 1991 to 2002 ‘as your mother was their financial responsibility at that time.’  In the result, therefore, reimbursement prior to 2002 was refused.  That was the decision which, it is now argued, was wrong.  
8.	With the assistance of Mr Bateman Sheffield’s complaint procedure was then followed:  stage 1 was completed by the 26th October 2006; stage 2, which included hearing evidence from Mr Stojak, by 26th January 2007 when a formal decision letter was sent to him; a review panel was held on the 12th March 2007 when the ‘section 117 complaint’ was recommended not to be upheld on the basis of the advice received from the Local Government Ombudsman.  The recommendations were confirmed by the Director of Adult Services on the 3rd April 2007.
9.	Mr Stojak then pursued the matter by making a formal complaint to the Local Government Ombudsman.  For a number of reasons including resource problems, the response was not received until the 6th June 2008.  It was to the effect that she could not investigate the complaint, because any fault was before Sheffield had responsibility for payment.  Mr Stojak’s solicitor then responded on the 25th June making the point that “the Council was responsible for the unlawful decision to charge Mrs Stojak for her care home accommodation from November 1991 in breach of the provisions of s.117 Mental Health Act.    …. the estate should be put into the position it would have been in had the unlawful decision to charge for s.117 accommodation not been made.”  The Ombudsman wrote on the 8th October apologising for the delay in replying and again on the 12th January 2009 with a detailed reiteration of her position.  She offered time for consideration of this letter until the 3rd February, suggesting that the solicitor let them know if he needed more time.  He made his detailed response on the 16th February followed by the Ombudsman’s final decision dated 3rd March 2009 that there was “insufficient evidence of maladministration” in the ways that Sheffield had reached its decisions; that the “passage of time makes it impracticable to investigate the events of 1991 …”  The solicitor wrote the pre action protocol letter to Sheffield some 8 weeks later on the 28th April to which Sheffield responded in detail on the 26th May.  The Claim was lodged on the 23rd June 2009.
10.	Sheffield’s case on delay is that time ran from the House of Lords’ decision in Stennett in 2002 on the basis that Mr Stojak should be taken to know the position in law as at that time; that in any event Mr Stojak had actual knowledge on which to act by the time of Sheffield’s final communication of their decision in March 2007; that pursuing the matter with the Local Government Ombudsman is not an adequate reason for failing to pursue an application for judicial review.  That there is a need for legal advisers to remember, if contemplating judicial review proceedings, to take prompt action where the Local Government Ombudsman is being invited to take action, was made clear in R v Education Committee of Blackpool BC ex p Taylor [1999] ELR 237 at 240.  This was because, as the Court made clear, the Local Government Ombudsman has no power to set aside a decision, such as the decision made in the instant case.
11.	Mr Grodinski, counsel for Sheffield, also argues that delay has caused real prejudice as a result of the passage of time because, despite such documentation that exists, in the absence of the various people who would have been involved, it would be much harder to establish whether or not on the facts Sheffield’s duty under section 117 would have required it to accommodate Mrs Stojak rather than provide some other kind of after care service.  
12.	Mr Cragg, counsel for Mr Stojak, argues that the factual position as from November 1991 is sufficiently clear on which to base the argument that Sheffield’s decision in 2007 should have been different; that in effect the real point of argument was whether Sheffield had been wrong to reply on the Local Government Ombudsman’s advice that prior to 2002 Mrs Stojak had ‘preserved rights.’  He argues that the need for care was clear from the experts who had been involved; there was a care plan, a psychiatrist, start date and the clear need for accommodation.  In his supplementary submissions he argues that, because Sheffield was in a position to make a good record of the factual situation as at October 2002 in the form of an assessment at Northfield Nursing Home, therefore, there should be no prejudice in establishing the factual matrix.
13.	Mr Grodinski makes the point in response that an assessment made some 11 years after Mrs Stojak’s discharge in 1991 can only have limited evidential value; that the relevant officers, who had the responsibility for making decisions in her case, would not be able to assist.
14.	There is a further point.  The way in which Mr Stojak’s complaint to Sheffield and his application for judicial review have been framed gave the impression that what he was seeking on behalf of his mother’s estate was essentially a private law remedy of reimbursement.  Mr Cragg made at clear at the hearing and in his supplementary submissions that the objective of the claim was merely to seek a successful judicial review of Sheffield’s decision in 2007 with a declaration to the effect that it should reconsider the application of section 117 to the question of the Council’s duty between 1991 and 2002, in the hope that an appropriate offer would be forthcoming.  To that extent, therefore, a public law remedy only was being sought.  I accept that that is the claimant’s position now, although I am far from clear that that has been his position all along.
15.	In my judgment, it would be wrong to exercise my discretion in favour of extending time in this case.  Whilst I can understand why Mr Stojak decided to pursue his complaint with the Local Government Ombudsman, at no stage until the 28th April 2009 pre action protocol letter does it appear that a decision to seek judicial review was made.  If it was, however, then the mere fact the Ombudsman was delaying her decision, was not a good reason for delaying the issue of judicial review proceedings.  Where judicial review is sought it is essential that it is considered as close to the decision sought to be reviewed as possible.  The regime under Part 54 Civil Procedure Rules makes that clear.  In this case, Sheffield made its position clear in late 2008 and had nothing to add to its decision making process by April 2007.  It is true that Mr Stojak’s solicitor wrote to Sheffield on the 5th June saying that he had considered the possibility of applying for judicial review with his client; that Mr Stojak had decided at that stage to pursue a formal complaint to the Local Government Ombudsman; that they might revisit the question of judicial review at the conclusion of her investigation.  However, in my view, that was not sufficient to put Sheffield on notice that it would in fact face judicial review proceedings.
16.	It seems to me that the hope had been that the Local Government Ombudsman would accept that her advice to Sheffield in respect of ‘preserved rights’ had been wrong, thus leading to Sheffield reversing its decision.  It was only when that hope was dashed by the Ombudsman’s final decision in March of this year that Mr Stojak seems to have considered seeking judicial review.  However, that decision was merely reiterating the position that she had made clear as far back as October last year, 2008.  Even after the March decision, it took nearly 8 weeks for Sheffield to be told that it faced the possibility of judicial review proceedings.  Of course, Mr Stojak is not seeking the challenge the Ombudsman’s decision. 
17.	In my judgment, the time delay of itself is sufficient to defeat this claim for judicial review even though I consider that there might be an arguable case if delay point could have been overcome, but I should add that I accept Mr Grodinski’s submissions that Sheffield is unduly prejudiced in terms of meeting the factual case.  Moreover, whilst in private law terms it would have been important for Mr Stojak and his family to have Sheffield’s 2007 decision reviewed, in my view, it cannot be said to have raised a matter of such general importance to justify the bringing of judicial review proceedings so long after that decision.  See R v S (Application for Judicial Review) [1998] 1 FLR 798 at 795H).
18.	For all these reasons I accept Sheffield’s contention that permission to proceed should be refused on the ground of delay in bringing the claim for judicial review.  Accordingly I decline to exercise my discretion to extend the time for bringing the claim and refuse permission to proceed.