Independent Social Workers and judicial review

The High Court has provided a useful reminder of the limited role that an independent social worker report might play in judicial review community care proceedings.

Where there is a dispute as to the level of a person’s needs, or as to the provision that is required to meet those needs, it might be tempting to appeal to an independent social worker to try to show that the judgment of the local authority’s social worker was “wrong”.

In R(BUS) v West Berkshire County Council [2025] EWHC 2599 (Admin), a young man challenged the local authority’s decision to place him in supported living after ageing out of educational college at 25. He contended that his needs could only be met by a placement in a far more expensive, all-inclusive, care home environment. After almost a year of discussions, the dispute was not resolved. Finally, and after the local authority appeared to have made up its mind for good, the claimant sought out a report from an independent social worker, which he sent to the local authority. But the local authority did not change its mind. Within days, a judicial review claim was issued. Amongst other things, the claimant sought to argue that:

1. It was irrational for West Berkshire not to have changed its mind in light of the report from the ISW.
2. It was irrational for West Berkshire to decide to place the claimant in supported living, given the issues that existed as identified in the ISW report.
3. Placing the claimant in supported living was a breach of his Article 8 rights. The breach was proven by the facts outlined in the ISW report.

Admissibility

First, there was a question about whether the ISW report was admissible at all. Judicial review proceedings are about process, not merits. As such, an expert report of this kind is of limited if any relevance, given that the court is not being asked to retake the decision for itself. The Judge ruled that “The reports are admissible as documents generated during the course of the process of making the decisions under review, because in undertaking a judicial review the Court is concerned to survey the material available to the decision-maker. They are not admissible as opinion evidence upon which the Court could act.”

Contents of the report

But the judge’s criticism of the report did not stop there.

First, the report did not comply with the requirements of CPR Practice Direction 35, which governs the content and form of expert reports for the court. Those are not just technical, formal, requirements. Rather they require, for example, that a report has been prepared in accordance with the expert’s overriding duty to the court, and not as a hired gun to amplify their client’s instructions.

Second, the report did not contain the author’s CV, or indeed anything about her qualifications or experience other than that she was a “registered independent social worker”, had “over ten years of experience working with children, young people, adults and families within Local Authority safeguarding teams”; that she is “regularly instructed as an expert”, and that “a strength-based, trauma-informed and neuro-affirming approach underpins my work”. It is clear that the court found such vague descriptions to be virtually meaningless; they certainly gave the judge very little reassurance that the author was qualified to give a professional opinion on the matters covered in her report.

Third, the report commenced (as it ought) with a list of the documents that the author had read in preparing her report.  However, in the body of the report, the author did not then say which of the matters stated were from her own knowledge, and which from the documents she had read. It may sound laborious to have to set out a paper trail for every matter that is stated, but from a judge’s perspective it is absolutely crucial. Where, for example, the ISW had provided a complex medical diagnosis, it was impossible to know whether that came from a relevantly qualified clinician (who would have had the expertise to make such a diagnosis) or from the ISW herself (who, at least based on the qualifications set out in her report, would not). Failing to include a paper trail meant that the judge was able to place far less reliance on the opinions expressed in the report than he otherwise might have.

Fourth, the ISW appeared in her report unquestioningly to accept everything she had been told both about the claimant and about the merits of the placement that he preferred. About this, the judge observed that “her professional judgment does not seem to cause her to doubt or question anything she is told on his behalf”, and that part of her report “reads as though taken from the publicity material” of the placement in question.

Finally, at paragraph 37, the Judge observed that:

“The fact that Ms Cartlidge is an independent social worker means simply that, unlike Mr Taylor, she is not employed by a local authority and is free to take private clients. She is independent in the same way that a member of the independent Bar is independent; and, like a member of the Bar, she will assemble material and arguments to support a client’s case.  Her reports are advocacy. They are none the worse for being advocacy, but they are nothing more than that. And they are likely to add little or nothing of substance either to the facts appearing from the other evidence (save where a matter stated is clearly within the knowledge of the writer), or to the advocacy of the claimant’s parents on his behalf.”

There are some echoes of all of this in a similar case from the Supreme Court over a decade ago. In R(KM) v Cambridgeshire County Council [2012] UKSC 23, the Supreme Court observed that the ISW’s report in that case “was not an expert’s report: it was a presentation of what the appellant and his mother wanted”, including a two-week skiing holiday! No professional judgment was exercised anywhere in the report. The “uncritical endorsement” by the ISW of the claimant’s wishes “led him to believe that he had become entitled to provision of such magnitude”.

Conclusion

ISWs can play an important role, especially in jurisdictions where the court is making a decision about the merits, such as the Court of Protection, or special educational needs. But their role is far more limited in judicial review proceedings. Undue faith in them is apt to mislead a party about the strength of their case. And a party should beware, above all, of the report that sounds too good to be true. In the final analysis a more balanced report is likely to be of far greater assistance than the report that is no more than a megaphone for one party’s case.

Benjamin Tankel is a barrister at 39 Essex Chambers.