Royal Courts of Justice
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MACKIE QC
Between:
THE QUEEN ON THE APPLICATION OF W
Claimant
v
NORTH LINCOLNSHIRE COUNCIL
Defendant
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Jamie Burton (instructed by Fisher Meredith LLP) appeared on behalf of the Claimant
Peter Oldham (instructed by North Lincolnshire Council) appeared on behalf of the Defendant
J U D G M E N T
JUDGE MACKIE: This application is about a local authority's obligations to accommodate and support a 16-year-old, now 17-year-old, under section 17 and section 20 of the Children Act 1989. It is another case about the interaction between these two sections. As it is common ground that the claimant's current needs are being met, the dispute is in reality about what is to happen in the medium and longer term.
The case comes before the court following the order of Pitchford J dated 15th May 2008, when he made a series of directions which included, first, that the matter was fit for expedition, and also that the application be listed for hearing for permission, with a substantive hearing to follow immediately thereafter, should permission be granted. I was unable to give judgment on the spot at the end of the hearing last week because we ran out of time.
The unhappy facts are not in dispute. The claimant is just 17. His birthday was on 15th June 1991. Before his 16th birthday he was accommodated and supported by the defendant social service department for some 4 years. His father is an alcoholic, who is currently in custody. His mother is also a heavy drinker, who has in the past, it is said, contributed to the claimant's own criminal behaviour. Neither parent is able, nor has been for some time, to look after the claimant or provide him with any direct support.
On 6th December 2007 the claimant was sentenced to 10 months' detention and training. He was released from custody at Wetherby Young Offenders Institution on 6th May 2008, halfway through his sentence. He is currently subject to a licence with various conditions attached, including a requirement to attend regular supervision sessions with probation officer. He will be under licence until 6th October 2008. He is due to go back to court for breach of his licence conditions at the end of this month. He admits some of the alleged breaches relating to a failure to attend supervision sessions, but apparently denies the charges relating to alleged contravention of requirements about where he should and should not go.
On 30th April 2008 his solicitors wrote to the defendant, stating that the claimant's welfarewould be seriously prejudiced if no support and accommodation was identified for him on his release. Details were given of the claimant's circumstances, his past involvement with the defendant and why it was clear that he was a child in need under section 17 of the Children Act. That, so far, is common ground.
The letter went on to claim that the claimant is entitled to support and accommodation under section 20 of the Act, a matter that is in dispute. The letter sought an urgent assessment of the Claimant's needs, confirmation he would be accommodated under section 20 on his release and confirmation that, in light of his past involvement with the defendant, he was an "eligible child" and therefore entitled to a personal adviser and a pathway plan.]
The defendants put in a holding reply on 1st May 2008, seeking a two-week period to respond, and said that in the meantime the claimant would be provided with bed and breakfast accommodation, along with support on his release from custody; otherwise, no admissions were made.
The claimant left custody and was provided with bed and breakfast accommodation on his release. His probation officer has apparently also managed to secure a weekly payment from the defendant of £30. That has been paid since 9th May 2008.
A limited assessment was carried out on 5th May 2008 and its essence is set out in the analysis at paragraph 1.2.3 which concludes as follows:
"[The claimant] is clearly a child in need... by definition of the Children Act 1989, support offered by his family is limited and not entirely positive hence [the claimant] being in the care of the local authority as a child. [The claimant] is vulnerable as he is unsupported and has a tendency to become involved in criminal behaviour. He has issues with his anger which leads him into situations whereby he intimidates people and adoptsaggressive & potentially dangerous behaviour presenting a risk to both himself and the public, in particular professionals who work with him. This risk is heightened if [the claimant] doesn't get the result he anticipates.
I feel that [the claimant] requires some type of support and that could be offered bytwo means:
*by accommodating [the claimant] under S20 and providing him with services as a Leaving Care young Person
*Alternatively [the claimant] can be offered services under S17 which would provide necessary financial support until state welfare support is established & also provide [the claimant] with practical assistance.
Providing [the claimant] services under S17 would ensure [the claimant] is appropriately supported & safeguardedwhilst working within [the claimant's] own wishes & feelings as he does not wish to be in care."
That wish not to be in care is something which I will mention later. The analysis goes on:
"[The claimant] is able to access the Connexionsservices which could provide additional support for him by way of a personal advisor.
The agencies in attendance at the MAPPA meeting can represent in the CIN plan."
On 9th May 2008 the defendant wrote to the claimant's solicitors providing the letter which is the subject of this application for judicial review. The relevant parts of the letter, which of course must be read in context, read as follows:
"It is accepted that [the claimant] was accommodated under Section 20... by North Lincolnshire Council at various times prior to his sixteenth birthday.
It is not accepted that [he] was returned by the Local Authority to live with his mother ten days before his sixteenth birthday. Neither is it accepted that the decision for [the claimant] to return to his mother was made by the Local Authority Social Worker. [The claimant] chose to reside with his mother refusing to accept any accommodation from the Local Authority or any assistance.
Prior to his sixteenth birthday [the claimant] was not living with his mother. On the 31 May 2007 he was bailed to reside at [an address]... At the time of his sixteenth birthday [he] was living in Belfast, Northern Ireland. On his return from Ireland [he] contacted Social Services by telephone on the 18 July to inform that he was living at his mother's home. He was offered support by the Local Authority but refused that support and was not accommodated by the Local Authority prior to his remand in custody...
[The claimant] was not made homeless upon his release from custody on the 6 May the Local Authority hav[ing] provided under Section 17, assistance to him in order that rent is paid on his bed and breakfast accommodation.
The Local Authority accept that [he] is a child in need for the purposes of Section 17... As such the Local Authority have undertaken an assessment of [the claimant]'s needs.
The Local Authority is clearly aware of its duties under Section 20... It is not accepted that [he] falls within Section 20(1)(c), however the Local Authority accepts that if by Section 20(3) every Local Authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the Authority consider is likely to be seriously prejudice[d] if they do not provide him with accommodation. (Sic).
In considering [the claimant]'s needs under both Section 17 and Section 20 the Local Authority must before providing accommodation so far as reasonably practical and consistent with the child's welfare;
Ascertain the child's wishes and feelings regarding the accommodation and:-
Give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
[The claimant]... has refused to stay in any accommodation provided by the Local Authority.
In the assessment conducted by [the individuals mentioned in the letter] it is recorded that [the claimant] states the only support he wants now is a property, money for clothing and regular financial assistance."
Reference is then made to Multi Agency Public Protection Arrangements being set up, consisting of the Young Persons Accommodation Team, Youth Offending Team and the Housing Department. The letter goes on:
"It is deemed by the Local Authority that these parties form a multi agency plan which can meet [the claimant]'s support needs.
The Local Authority have carried out the Local Authority have carried out an urgent Section 17 Assessment of [the claimant]. (sic) It was not carried out until after his release however the potential effects of his release as set out in your original letter were avoided by means of supporting [the claimant] obtaining accommodation.
The Local Authority will not accommodate [the claimant] under Section 20... The Local Authority believes that by doing so, in view of his previous reluctance to remain in accommodation and indeed in view of the offending patterns that he has whilst being looked after that [his] welfare is likely to be seriously prejudiced if the Local Authority do provide him with accommodation.
The Local Authority does not accept that it has failed in its duty to provide a child in need assessment for Section 20 accommodation following [the claimant]'s sixteenth birthday or indeed that he did in fact attend at Social Services shortly after his sixteenth birthday.
The Local Authority does not accept that the times [the claimant] has spent in bed and breakfast accommodation between July 2007 and December 2007 was in fact accommodation under Section 20...
The Local Authority do not accept [the claimant] is ineligible [which I think means 'eligible'] child for the purposes of Section 19 (b) of Schedule 2 of the Children Act 1989."
It adds:
"[The claimant] is neither a relevant nor an eligible child by definition."
It concludes it follows that he will be provided neither with a personal adviser nor with a pathway plan.
The court has been assisted by witness statements from several witnesses,particularly from Miss Browes, the case manager for the leaving care team of the council, by Mr Studdert, the claimant's solicitor, and by Mr Phillips, principal solicitor for North Lincolnshire Council.
Ms Browes exhibits various documents, including a chronology, recording a depressing lack of co-operation by the claimant with the council and the help it seeks to provide. She refers to her efforts in May to contact the claimant and his refusal to respond to calls or to meet. She refers to other efforts which she has made to meet the claimant or to persuade him to come into town, to have contact with him. She refers to a variety of efforts that she has made to provide him with the support that a person in that age group needs. She refers to arrangements for a GP and a dentist. She refers to the fact that on 20th May 2008, as a result of leavingvarious messages, she was able to speak to the claimant, who told her that he wasat Atkinson's Warren, a nature reserve to which young people go, not to discover nature but to hang out and drink. The claimantexplained that he was drinking and did not want to come and see Ms Browes. That is a flavour of the difficulties that these professionals had in persuading the claimant to deal with them. She produces other documents, including a plan by the local authority for the claimant's long-term accommodation.
There are two witness statements from Mr Studdert. In the second statement he refers to the difficulties he had in obtaining instructions from the claimant, due, he understands, to the fact that the claimant is living in a flat without a landline and had a broken mobile telephone.
The difficulties which are identifiedby Ms Browes are answered by Mr Studdert by saying that they illustrate just why it is that his client requires the level of support that section 20 provides. He says this:
"I have taken instructionsfrom the claimant by telephone on 16th June. I have discussed the contents of the defendant's grounds of resistance and the statement of Phyllis Browes too. The claimant agrees that his priorities are accommodation and financial support and he acknowledges that he is likely to need further support from the social services. He would very much like to know the support that the adviser set out in the support plan and the local authority's availability to provide him with that specified identified support when it is required. He sees great benefits in a pathwayplan, setting out in particular contingency plans should any problems arise."
(Quotation not checked).
Mr Phillips brings matters up to date in terms of the claimant's activities and records that there has been some better co-operation, particularly so far as accommodation is concerned. He says that the local authority had been clear with the claimant as to what "section 20" means, and that he has repeated, as indeed is repeated in Mr Studdert's first witness statement, that his wishand his priorities are accommodation and financial support. He adds this:
"It is not accepted by the local authority that the claimant's failure to fully co-operate and is an example of why he requires the level of support that section 20 would afford him. The levels of support the local authority are providing to the claimant are at a level that would be given under section 20. However, the stated wishes of the claimant, insofar as the local authority are concerned, have always been and remain that he does not wish to be a 'looked after' child. The local authority also accept that there has been an improvement within the co-operation of the claimant. However, he clearly wishes to abandon it."
(Quotation not checked).
There is no dispute between the parties about the quality of the support being offered to the claimant in practical, day-to-day terms. The concern is about the future. The reason why this case is being proceeded with becomes clear when one looks at the relevant legislation. Section 17 is headed "Provision of services for children in need, their families and others". It provides in relevant part:
It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
to safeguard and promote the welfare of children within their area who are in need; and --
so far as is consistent with that duty, to promote the upbringing of such children by their families by providing a range and level of services appropriate to those children’s needs.
...
(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare--
ascertain the child's wishes and feelings regarding the provision of those services; and
give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
...
The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash."
17(10) provides that a child should be taken to be in need if:
he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
he is disabled..."
I think it is common ground that the claimant is a child in need.
Section 20 is headed "Provision of accommodation for children: general" and provides in relevant part:
Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
there being no person who has parental responsibility for him;
his being lost or having been abandoned; or
the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
Subject to any controversy about the ambit of the word "it", there seems little doubt the claimant qualifies under section 1(c). 20(3) provides:
Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation."
...
Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
ascertain the child's wishes and feelings regarding the provision of accommodation; and
give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain."
There is, though Local Authority Circular, guidance from the Department of Health in LAC(2003)13. This has to be read in context, but my attention has been drawn, in particular, to paragraphs headed "Amendment to section 17" and "Framework for the Assessment of Children in Need and their Families". The first section deals with the amendment of section 17 to introduce 17(6), which I have read out. Under the second heading the Circular reads as follows:
"The amendment to section 17 did not affect the duties and powers of local authorities to provide
Accommodation for lone children under section 20 of the Children Act 1989, or under a care order. Accordingly, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families. However, there may be cases where a lone child who needs help with accommodation, but does not need to be looked after might appropriately be assisted under section 17."
There is then a paragraph in which the Circular refers to the obligation of the local authority to undertake an assessment. The Circular urges that the findings of that assessment should then be used to take account of the wishes and feelings of the child as the basis for any decision under section 20. It has two further paragraphs upon which emphasis has been placed:
"For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after, unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate. While the needs assessment is being carried out, he should be cared for under section 20."
It is therefore pointed out on behalf of the claimant that the period of assessment should count as a period of section 20 care. The reason for that will become clear shortly. The next paragraph states:
"Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful means of support in this country."
After a couple more sentences the circular adds:
"In such circumstances it [the local authority] would not need to assume the whole responsibility for accommodating him under section 20 (and thereby taking him into the looked after system). In such cases section 17 may be used for support, including help with accommodation, without making the child a looked after child."
That is a part of the provision relied upon by the defendant.
The distinction between section 17 and section 20 is important because if the child is provided with accommodation under section 20 he falls within the definition of a looked after child, but he does not if that accommodation is provided under section 17.
The Children (Leaving Care) Act 2000 amended the Children Act 1989 so as to include a code for comprehensive aftercare services for children who have been "looked after" by a local authority to help ease their passage into adulthood. In particular, the authority owes specific duties to "eligible children". An eligible child is defined in paragraph 19B Schedule 2 of the Children Act as follows:
"'eligible child' means, subject to sub-paragraph (3), a child who—
(a)is aged sixteen or seventeen; and
(b)has been looked after by a local authority for a prescribed period, or periods amounting in all to a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen."
The prescribed period is 13 weeks. The prescribed age is 14. The issue was helpfully summarised by Holman J in the case of R (H and another) v Wandsworth Council and another [2007] EWHC 1082 (Admin), which I shall return to, as follows:
These provisions have the effect that a child who has been looked after for more than a prescribed period of 13 weeks when he attains the age of 18 becomes on that date a 'former relevant child'. The local authority then have a range of powers and duties under the leaving care provisions to prepare a pathway plan and appoint a personal adviser for him, and to provide a range of services and support, including accommodation for him until the age of 21 or, in some cases (see section 24B), 24. It is those services, or some of them, that two of these claimants seek to access. Their key to doing so is to establish that they were, immediately before they attained the age of 18, 'looked after' children pursuant to section 22(1)(b) because they were being provided with accommodation by the relevant local authority in the exercise of social services (but not housing) functions, in particular those under the Act. However, section 22(1)(b) excludes functions under section 17, and accordingly the claimants have to establish that they were provided with accommodation in exercise of functions under, and pursuant to the duty in, section 20(1)."
The position of the claimant is that he is qualified to be looked after and to fall within that regime, either because he falls within section 20 and should be treated as such, despite what the defendant says or, even if he does not, because he qualifies, if one includes within the section 20 qualifying calculation, the period while he was being assessed.
The interaction between these two sections has recently been given attention by the House of Lords, the Court of Appeal and by Holman J in this court.
In the case of R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, the House of Lords was concerned with an issue not directly before me. The issue in that caseis described by Baroness Hale as follows:
"4... This case is about the respective responsibilities of local authority children's and housing services towards children aged 16 and 17 who are unable to live with their families. In the end, it comes down to a short point of construction: what is meant by 'a child who is looked after by a local authority', as defined in section 22(1) of the Children Act 1989? But the clear intention of the legislation is that these children need more than a roof over their heads and that local children's services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities."
Baroness Hale says the following at paragraph 4 (which I mention, albeit that it was not cited by counsel in this case):
Any parent of teenagers aged 16 and 17 knows how difficult they can be. But they also know that, however much those teenagers are struggling to discover their own identities and lead independent lives, they also depend upon the love and the support of their parents..."
She then quotes from a Green Paper as follows:
"For most young people the idea of being left unsupported at that age would be alien. They have a sense of security and know that their parents will always be there for them. Few young people ever really 'leave' the care of their parents. They may leave home, and on average do so at the age of 24, but they know that their families are only ever a phone call away and stand ready to offer financial support and advice, or a place to stay if they need it."
In paragraph 17 Baroness Hale refers to the nature of the accommodation in section 20 and its origin, and to the obligation on the local authority, should there be one under section 20, so far as practicable and consistent with the child's welfare, to ascertain the child's wishes. At paragraphs 39 and 40 Baroness Hale refers to the case of H, which I have mentioned, and the decision of the Court of Appeal in R (S) v Sutton London Borough Council [2007] EWCA Civ 790, which I shall also mention. She refers to the fact that in that case the Court of Appeal "found help" from H. So there is no doubt that those cases were before the House of Lords at the time M was heard and decided.
In paragraph 42 Baroness Hale says this:
It is not necessary, for the purpose of deciding this appeal, to express a view on whether any or all of these cases [that includes the two that I mentioned] were rightly decided. For my part, I am entirely sympathetic to the proposition that where a local children's services authority provide or arrange accommodation for a child, and the circumstances are such that they should have taken action under section 20... they cannot side-step the further obligations which result from that duty by recording or arguing that they were in fact acting under section 17 or some other legislation. The label which they choose to put upon what they have done cannot be the end of the matter. But in most of these cases that proposition was not controversial."
She then adds at 43 some observations that are not directly relevant to this case and goes on:
"43... On the other hand, as will also be obvious from what has gone before, I have reservations about the narrow approach of Stanley Burnton J in the Sutton case to the significance of the child's wishes under section 20(6), on which the Court of Appeal declined to express a concluded view. It seems to me that there may well be cases in which there is a choice between section 17 and section 20, where the wishes of the child, at least of an older child who is fully informed of the consequences of the choices before her, may determine the matter. It is most unlikely that section 20 was intended to operate compulsorily against a child who is competent to decide for herself. The whole object of the 1989 Act was to draw a clear distinction between voluntary and compulsory powers and to require that compulsion could only be used after due process of law."
I should also refer briefly to the London Borough of Sutton case, where the issue was the duties of a local authority under section 23, on the one hand, which are care and foster duties towards a relevant child, and under section 20. The Court of Appeal, on the facts of that case, had referred to what it found to be the respondent"seeking to 'side step' its duties under section 20(1)" and at 52 Hooper LJ, with whom the rest of the court agreed, in the context of thefacts of that case, said this:
"52... I have no doubt that the choices offered were not the only choices which the appellant should have been offered and that the whole process was undermined by the assumption that J could and should be suitably accommodated by the Homeless Persons Team. As Mr Bellamy fairly and properly conceded during the course of argument before us, there was no evidence before the judge that the respondent could not have placed the appellant at Wayside [that is a refuge] pursuant to section 23(2). She was not offered that choice."
The Lord Justice adds:
I should add that I have found help in reaching my conclusions in the judgment of Holman J in H..."
In her judgment, Arden LJ places emphasis at paragraph 65 upon one aspect of the guidance which I have mentioned, saying this:
"I do not consider that the Guidance is suggesting that the child's wishes can be used to displace a duty otherwise arising. As the Guidance states, the assessment will simply take account of the child's wishes and feelings."
I then turn to the decision of Holman J in H. The learned judge dealt with three different cases heard together which involved a common question of law which is, as he puts it in paragraph 1:
"1... can a local authority who do provide accommodation to a lone child in need determine or specify that they do so in exercise of a power under section 17 of the Children Act 1989... when, on the facts of the case, they are also under a duty to do so under section 20 of that Act?"
Paragraph 4 helpfully summarises the statutory framework.
The judge gives careful consideration to the facts of the particular cases and counsel for the claimant has placed some emphasis on what I will call the "Wandsworth case" and counsel for the defendant the "Islington case".
The judge says this at paragraphs 53 and 54:
"53... The whole issue is, as I said at the very outset, whether the local authority can determine or specify that they did so in exercise of the power under section 17 when, on the facts of the case, they were also under a duty to do so under section 20(1). In my view, supported as I understand it by the submission of Mr Kovats on behalf of the Secretary of State, they cannot.
I agree with Mr Sheldon that before a local authority are under the duty under section 20(1), a number of judgments have to be made, as identified by Mr Sheldon. Those judgments are, in the first instance, for the local authority themselves to make, although in the event of challenge they might fall to be made by a court. However, in making the judgments the local authority must act rationally and cannot distort their judgments so as to squeeze out the operation of section 20(1)."
The judge sets out his conclusions in more detail in paragraphs 55-58:
The duty under section 20(1) is not expressed to be subject to sub-section (6). Sub-section (6) itself contains both a duty (' ... shall ... ascertain ... and give due consideration ...') and a discretion. (Much of the language of sub-section (6) imports discretions -- 'so far as is reasonably practical', 'consistent with the child's welfare', 'due consideration).' But sub-section (6) operates as a prior step 'before providing accommodation', not before the duty under sub-section (1) to do so arises. In my view, sub-section (6) is obviously and primarily directed to the form and manner in which accommodation is provided, and has a tie-in with the wide discretion under section 23(2). So it is at least primarily directed to such issues as whether the child is accommodated with a family or any other suitable person; or in an appropriate children's home; or, within the very wide discretion under section 23(2)(f) in bed and breakfast accommodation or a flat, alone or sharing etc. But I accept that sub-section (6) is wide enough also to include the child's wishes and feelings as to whether he wishes to be provided with accommodation at all. If he says he does not, then the local authority may conclude that in fact he does not 'require' accommodation, and in any event cannot force him into accommodation if he does not want it.
In my view, the separate reliance on sub-section (11) adds nothing to the argument. Sub-section (11) has the sole, but very important, effect that whereas a local authority cannot accommodate a child under 16 under section 20 against the will of any person with parental responsibility for him, once a child has reached 16 his agreement effectively overrides any objection by the parent. It is not an aid to wider issues of construction.
In my view, the approach of the majority of the House of Lords in G v Barnet in the various passages which I have already quoted does require and have the effect that, if a local authority do provide accommodation for a child in need, and if on the facts a duty to do so did arise under section 20, then the local authority must be regarded as providing that accommodation under section 20 and not under section 17. This seems to me necessarily to follow from Lord Hope saying at paragraph 85 that section 17 contains a general duty owed to all children who are in need within their area 'and not to each child individually', and from his agreement at paragraph 91 with Auld J's distinction between duties which are general and duties 'which are particular' and 'governed by individual circumstances'. It follows, too, from the distinction drawn by Lord Scott of Foscote at paragraph 114 between overarching or framework duties and specific duties owed to specific children.
As in the case of R v London Borough of Bexley ex parte B, a local authority cannot finesse away their specific or particular duty by claiming merely to act under a general one. Still less, in my view, can a local authority, when they are under a duty, finesse the duty away by claiming merely to exercise a power."
It is against that background that I turn to the competing submissions of the parties. The claimant makes an attack on the quality of the assessment carried out in the case. That has been overtaken by events. So far as the decisionof 9th May 2008 is concerned, the claimant says, in precisely the way identified by the House of Lords and the Court of Appeal in M and Sutton, that the defendant has sought to sidestep its obligations to the claimant under section 20. The letter of 9th May 2008 is criticised on several grounds. First it is contended that it fails entirely to justify the determination that the claimant does not meet the criteria under 21(c). The defendant is awareof what the claimant says, that neither of the relevant parents is willing or able to look after the claimant, and that the local authority's historical involvement with the claimant is based on this very state of affairs. To have met any engagement with that issue in the context of that knowledge is startling and renders any determination under the section 20 criteria wholly defective.
Secondly, it is contended that the letter contains a conclusion so fundamentally unreasonable as to be perverse: that the provision of section 20 support to the claimant would seriously prejudice his welfare so that it should not be provided pursuant to section 23. As with many children looked after by local authorities, the claimant had problems with accommodation provided to him. To argue that to provide accommodation under section 20, as opposed to some other source, would of itself threaten his wellbeing is so illogical as to be Wednesbury unreasonable. The claimant therefore submits that the accommodation provided to him since his release has been provided to himin exercise of the section 20 duty, not under section 17. The nature of his relationship with his mother means that she is prevented from providing him with accommodation, his father is in custody and it is plain that his welfare would be seriously provided without the provision of support under section 20.
The claimant also submits that, having been accommodated by the defendant under section 20 in the past (before his 16th birthday), the consequences of him having received, even for a brief period, the section 20 accommodation means that he will become an eligible child and entitled to the personal adviser andpathway plan.
Thecouncil accepts that the child is a child in need, and explains that that is why it is making provision for him under section 17,but contends that the claimant does not "appear" to fall within the scope of section 20. They point out that the question of whether someone is or is not within a section is for the local authority to determine and place emphasise on the phrase "appears to them". They submit that the phrase also underlines the breadth of the authority's discretion in making that decision. Only if the decision is irrational can it be quashed.
The defendant's decision is not irrational for various reasons. First, they submit there are no fixed categories of case which do or do not fall within the scope of section 20. Not all children whodo not have a carer fall within its scope, and they refer to the example of asylum-seeking children in the Circular I mentioned earlier. They seek support for that by the observations made by Baroness Hale in M in consequence of what she said about thewishes of the child, albeit a child who is "fully informed of the consequences of the choices". They submit that:
The Circular and M are predicated on the assumption that not all children need and respond appropriately to care, whether by way of the direct provision of accommodation or otherwise. It is a judgment for the local authority to make in this case. The judgment that was made was that the claimant does not fall within the terms of section 20. They rely upon the claimant's refusal in the past to stay in accommodation provided.
The wishes expressed in the assessment that the claimant wants his own place and some money and the only support he wants now is property, money for clothing and regular financial assessment. They rely upon the case notes, which are in similar terms. They rely upon the fact that they intended to arrange more suitable accommodation for the claimant. Despite reminders, the defendant has failed to attend. They rely upon the evidence of when this arose, some of which I have referred to. They emphasise that it was not a lack of care by the authority, and I think that is common ground. What it is is that, on their case, there is a support plan pursuant to section 17. It proposes a detailed set of support arrangements across a wide range of fields and the authority was rationally able to come to a conclusion not to provide accommodation for the claimant under section 20.
The position, as I see it, is as follows. First, this is, of course, a judicial review. It is for the local authority to determine whether an individual "appears" to fall within section 21(c). It is not for the court to substitute its own judgment.
The council is providing what is conceded to be in practice appropriate support, as described under section 17. But, as Mr Phillips put it, provided "at a level that would be given under section 20". The existence of this extensive support and its equivalence to what is provided under section 20 is perhaps a pointer to the fact that this support is indeed being provided under section 20.]
In the ordinary way section 17 applies more naturally to children with families, but not those living alone, as one sees from the Circular.
I have regard to the general observations, which seem to me to be significant, made by Baroness Hale.
The background of the claimant appears to be an almost classic fit for section 20. Neither parent will or can look after him, he has in the past been dependent upon his local authority and is now again dependent upon their care.
It is important to emphasise that the obligation under section 26, so far as the child's wishes are concerned, is to take account of them, and I re-emphasise the passage that I have referred to in the judgment of Arden LJ. Furthermore, as Holman J points out, subsection 6 operates as a step before providing accommodation, not before the subsection 1 duty arises. The views of the child are not determinative; they have to be taken into account in the way that the section provides.
In a sense there is a conflict of evidence about the wishes of the claimant at this stage, when one has regard to them. These views are expressed by a wayward teenager with, on the current evidence, little wisdom and little insight. It would appear from what has been communicated to the defendant that he wants a place to live, a phone and pocket money and to be left on his own. It is unsurprising that those should be his wishes and many of his age would share them. It also appears from the council's documentation that he does not want to be in care. No doubt that is a misunderstanding by him, to the extent that it is recorded, of the section 20 provision. The fact of his application to this court, and what is said by the solicitor, indicates that his considered view, to the extent it is relevant, is that he wants section 20 assistance, not that he wants section 17.
Having regard to the evidence which I have mentioned, I reach the conclusion that the local authority has indeed, with the best of intentions, done precisely what Holman J decided was unlawful in H. It has sought to fulfil a duty under section 17, when one is also owed under section 20.
It is difficult to see how, given the wording of the section, the local authority can reasonably reach the view that it believes that by accommodating the claimant under section 20 (and I quote from the letter [of 9th May 2008]):
"... in view of his previous reluctance to remain in accommodation and indeed in view of the offending patterns that he has whilst being looked after that [his] welfare is likely to be seriously prejudiced if the Local Authority do provide him with accommodation."
That does not seem to me to be a sustainable position. Moreover, the difficulties which the claimant presents are to some extent an illustration of why more extensive rather than less extensive provisions are desirable. As Munby J put it in the case of R (J) v Caerphilly County Borough Council [2005] EWHC 586 (Admin):
"56... The fact that a child is unco-operative and unwilling to engage, or even refuses to engage, is no reason for the local authority not to carry out its obligations under the [Children] Act and the Regulations. After all, a disturbed child's unwillingness to engage with those who are trying to help is often merely a part of the overall problems which justified the local authority's statutory intervention in the first place."
While the letter of that observation is not relevant to this case, I suggest that its spirit is.
In all the circumstances of the case, it does not seem to me that the local authority can legitimately have declined to afford provision under section 20, and that this is a case where the section 17 route has been taken when, on the facts, the local authority was obliged to follow section 20. It is difficult to think that it would be open to serious argument that section 20 did not apply, for example, if section 17 was not there in the first place. In those circumstances, there will be judgment for the claimant.
Do you want me to rise for a couple of minutes?
MR BURTON: If you might, my Lord. I am most grateful for that. It is just for questions about relief.
JUDGE MACKIE: All right. Let me know when you are ready. I think that the authority is likely to comply with the outcome of the court and I am not disposed to make swingeing orders.
MR BURTON: My Lord, I understand.
JUDGE MACKIE: Particularly given what has been the assiduous and professional attention the council has given to the wellbeing of the claimant.
MR BURTON: My Lord, I understand.
(A short adjournment)
MR BURTON: My Lord, I am most grateful for the very detailed judgment in this case. It falls to me to request the following relief, but I stress I ask for no mandatory orders at all. All I do ask for is a quashing and two declarations. First of all, I think it is inevitably that the decision of 9th May must be quashed in the circumstances. I do not really add much more to that because that is really the principle substance of the claim. However, I do ask for two declarations. The first follows on naturally from the quashing of the decision of 9th May -- and this is all listed in the relief which is included at page 3 of the claim form -- and is that there be an order declaring that the claimant has been accommodated by the defendant pursuant to section 20 of the Children Act 1989 since 6th May 2008. I would also ask, just for the sake of clarity, and because we are all clear now that W has surpassed the prescribed period of being looked after to become an eligible child, that there be a declaration that he is indeed an eligible child for the purposes of the Children Act 1989.
My Lord, the other aspects of relief: there is already an order pursuant to CPR 39.2, preventing --
JUDGE MACKIE: -- identification.
MR BURTON: Quite, my Lord. I do not seek any other orders in terms of the natural consequences of the declarations I do seek, namely orders requiring the local authority to do that which the statute now does requires them to do. As my learned friend said, and indeed your Lordship has found, the local authority have thus far been active in their efforts to assess the claimant. Therefore, I also only ask for costs. Your Lordship's determination is unequivocal in findingin the claimant's favour without any reservations. The general tone of your Lordship's conclusions, especially towards the end of the judgment, are that the local authority's position, if not untenable, is very close to being untenable in its submissions to this court about the duties that it was acting under when assisting W since 6th May 2008 and so forth. In those circumstances, I also ask for costs.
MR OLDHAM: My Lord, on the question of relief, your Lordship may feel that, given the steps we have taken to date, there is nothing more needed other than the judgment your Lordship has given. That is all I can say. I understand why my learned friend seeks the limited relief he does, but we would suggest to your Lordship thateven that is not strictly necessarily.
Secondly, on the issue of costs, your Lordship may feel, particularly, perhaps, as my learned friend's client is legally aided, and particularly given the good faith and efforts shown by my client, this is not an appropriate case in which costs should be awarded. Therefore, I suggest to your Lordship the appropriate order would be no order as to costs, save obviously for an assessment of my learned friend's publicly funded costs.
My Lord, I do have an application, which I can make very briefly, for permission to appeal, the point of law being this, that the comments of Baroness Hale in the M case make it seriously arguable that the approach of the lower courts in the Sutton case and the Islington and Wandsworth cases, insofar as they took into account the relevance of the child's wishes, is no longer correct; and that that is an important point worthy of the Court of Appeal's attention. Unless I can help your Lordship further, that is all I have to say.
JUDGE MACKIE: No, thank you.
MR BURTON: My Lord, do you require anysubmissions on either of those?
JUDGE MACKIE: You might as well have a go, yes.
MR BURTON: In relation to costs, the courts have repeatedly stressed that the fact that a particular party is legally aided is no basis not to award them their costs. I do not think my learned friend has added much else, other than to say the local authority have been actively trying to support the claimant, but of course that is the principal reason why they have been found to be doing so under the (inaudible) that is, of course, being provided under. So I say that cannot possibly be a reason to avoid the natural consequences of losing litigation in the way that they have.
Just quickly, in relation to the issue of relief, I would like to stress that my instructing solicitor is particularly experienced in this area, he is taking referrals about this type of issue all of the time, and any clarity that can be added to the situation is to be favoured. Therefore, the declarations, in my submission, would assist in that regard, whilst not putting the local authority under any kind of onerous obligation, or indeed any obligation, other than those which they are under anyway.
On the issue of permission to appeal, I would be minded to agree with my learned friend, were it not for the fact that your Lordship has in essence found that the claimant was not making an informed choice in this case; there was a clear misunderstanding on his part about being in care and what that entails. Your Lordship has not gone so far as to explain why that misunderstanding might have occurred on the facts, but I do not say it is necessary to do so. All I say is it was clear that the claimant in this case was not making a fully-informed decision insofar as it can be said that he made a decision at all that supported the defendant's approach of the provision of services to him.
JUDGE MACKIE: Thank you. It seems to me that the claimant does not need a quashing order. I see that the claimant needs the declarations and the claimant may have them. The council fought the case and lost and they should pay the costs. I certainly had it in mind when I placed emphasis on the informed nature of the decision which Baroness Hale mentioned. I forget whether I specifically linked to it, but I certainly meant to.
So far as the question of permission to appeal is concerned, I would have had sympathy with that application but for the fact that Holman J's judgment, which is the one which I have followed most closely, has been favourably received by the Court of Appeal, and not adversely commented on in the House of Lords. On that basis, there is no real prospect and I refuse permission to appeal.
The one practical aspect, if you do want to pursue an appeal, is that we do not have the normal shorthand writer from the Admin Court and if you would like to get hold of a transcript it might be easier to start with my clerk, who can then get on to people in this building.
MR OLDHAM: That is very helpful, my Lord.
JUDGE MACKIE: Would you be wanting one anyway?
MR OLDHAM: What I might do, if I may -- I do not want to create work unnecessary -- I will talk to those instructing me and then perhaps contact your clerk.
JUDGE MACKIE: If you would not mind taking a sheet giving my clerk's e-mail details.
MR OLDHAM: Thank you.
JUDGE MACKIE: We will then it get if moving for you, because I am in this building all the time.
MR BURTON: Might I add that those who are representing the claimant might also make a similar request for some of the reasons I outlined a moment ago.
JUDGE MACKIE: Similarly, you too can have one of those.
MR BURTON: I will use the same one.
JUDGE MACKIE: There are normally more on the desk because I am here all the time. Here you are, one each.
MR BURTON: That is great. Thank you.
JUDGE MACKIE: Thank you for your help and sorry you were burdened for so long.