SJ & Anor, R (on the application of) v Surrey County Council

These judicial review proceedings are concerned with care and support services provided by the Defendant local authority to two children, brother and sister, since 2010. The siblings are referred to respectively as LJ and SJ to protect their anonymity. When the proceedings were commenced in November 2011, seeking urgent interim relief, the children were aged 16 and 15. The proceedings have a long and convoluted history. By the time of the hearing before me on 20 February 2014, LJ had attained adulthood. SJ is now 17. The main issue which remains to be decided is, to put it in broad terms, whether SJ’s present circumstances are such as to render her a “child in need” within the meaning of section 17 of the Children Act 1989.

In order to understand the arguments, it necessary to set out something of the history of the family and of the proceedings.

LJ was born on 28 May 1995. SJ was born on 13 November 1996.

Following the separation of their parents, both children lived with their mother in Wolverhampton prior to 2008. In 2008 LJ was sent to Jamaica to live with his uncle or maternal grandmother. SJ continued to live with her mother in Wolverhampton.

In January 2010 SJ fell out with her mother and went to stay briefly with JO, her adult sister, who lives in Epsom. After a fortnight or so, SJ then moved in with her father, who shared accommodation with his new wife and her teenage daughter in Islington. The mother moved to Jamaica in about March or April 2010.

In July 2010, as a result of tensions between SJ and her step-mother, SJ went to live with JO in Epsom. She was then a little over 13½. JO was at that time aged 26 and working as a probation officer in South London. She had twin boys, then aged 8 and a daughter then aged 2, by different fathers, neither of whom was living with her. The family lived in a three bedroom housing association accommodation. SJ shared a bedroom with her niece in a single box room, which was described as very cramped.

In August 2010, the Claimants’ mother MC was with LJ in Jamaica when she disappeared. LJ returned from Jamaica and went to live with JO in Epsom. He shared a bedroom with his twin nephews. The Defendant subsequently described the whole accommodation as cramped and having no space. From about August 2010 there was no contact with the mother in Jamaica, who was described as “missing” until she reappeared over two years later in about October 2012.

In October 2010 JO notified the Defendant that LJ and SJ were living with her and of their circumstances and asked for assistance. There was an initial assessment of SJ and LJ by the Defendant which concluded they did not constitute children in need within the meaning of the statutory definition.

Further assessments were carried out on 21 April 2011 following a call from JO that she was on the verge of a breakdown and ready to put LJ and SJ in foster care. The initial assessment concluded that each child was a child in need. The primary problems identified were JO’s instability, the cramped nature of the accommodation and the debt problems of JO who had got into rent arrears so as to disable her from bidding for a larger home from her housing association. Support was provided by the Defendant providing food vouchers to her in June 2011, initially for £50 per week and then £60 after the first month and by the Defendant paying off her rent arrears of £2,703 in August 2011. Other payments were provided or procured by the Defendant for particular purposes, including £400 from charitable sources towards the cost of school uniforms and supplies for all five children.

In September 2011 JO issued an application for a residence order in respect of the children in the Guildford County Court pursuant to s.8 of the Children Act 1989. This was not ultimately pursued by her.

In October 2011 the Defendant carried out a core assessment of LJ and SJ which was concluded on 28 October 2011. It treated both as a child in need for whom the Defendant would continue to provide support by the weekly food vouchers and liaising with the family and professionals to monitor the need for support. It concluded that JO had a good bond with the children and wanted what was in their best interests. There did not appear to be any significant concerns raised by any professionals involved with the children, who were doing well in school and were having their health needs met to an adequate standard. The children had been offered emotional support from the school counselling services which they had previously used. The assessment recorded that lack of finances and the housing situation were the main issues for the family, but that JO was receiving support from relevant agencies and would be eligible to apply for transfer to a bigger property with her rent arrears paid off. The biggest risk to the children was identified as the uncertainty of the placement with JO, and the desirability of stability in a placement until they reached 18. Such stability was threatened by JO’s erratic mood swings resulting in her sometimes asking for the children to be taken into care; by her stated desire to move to Jamaica with her partner; and her reluctance to pursue her application for a residence order because she did not want to take on parental responsibility.

On 30 November 2011 the judicial review application was issued. There were broadly two aspects to the extensive grounds. One was that the Defendant ought to have treated the children as falling within section 20 of the Children Act 1989 such that it had an obligation to accommodate them; and that this accommodation obligation should be fulfilled by placing them in their current accommodation with JO, with the effect, it was said, of triggering a higher payment to JO as a kinship foster carer. The second aspect was simply that as children in need under s. 17 the Defendant was providing inadequate financial support to meet their needs. In addition interim relief was sought that the Defendants should pay the National Minimum Foster Care Allowance rate to JO to support the children.

Permission and interim relief was refused on paper. Following an oral renewal application, on 15 May 2012 Lang J refused permission in relation to the s.20 grounds but granted permission in respect of the challenge to the support provided by the Defendant pursuant to section 17. She ordered an expedited hearing. In the event it was arranged for 13 December 2012.

On 1 October 2012 LJ was admitted to Springfield Hospital under s.2 of the Mental Health Act 1983. He was discharged about three weeks later on 23 October 2012 and returned to live with JO.

At about this time the children’s mother, who had been missing in Jamaica since the summer of 2010 reappeared in the UK.

The final hearing on 13 December 2012 was adjourned by consent in order for further assessments to be made, with liberty to restore thereafter.

Shortly thereafter, on 17 December 2012 LJ was readmitted to Springfield Hospital as a mental health patient and remained as an inpatient until 12 February 2013.

Meanwhile on 19 or 21 December 2012 further assessments of SJ and LJ were carried out. These concluded that neither was a child in need.

On 13 January 2013 the Claimants served Supplementary Grounds challenging the decision that they were no longer children in need under s. 17 and seeking to revive the grounds under s.20 in the light of the changed circumstances. This changed the landscape of the Claimants’ challenge by reference to decisions subsequent to the original issue of proceedings. It led to an order of HHJ Sycamore QC on 12 February 2013, which provided that a date be set for the final hearing of (a) the existing challenge to the level of support under s. 17 for which Lang J had granted permission and (b) a rolled up hearing in respect of the matters raised in the Supplementary Grounds. The order recorded the Defendant’s agreement that subject to any significant change of circumstances it would continue to provide living assistance for SJ in the form of food vouchers in the sum of £30. LJ was due to be discharged from Springfield Hospital the following day. The order also recorded that the Defendant was arranging for LJ on his discharge to move to supported lodgings. This occurred on 13 February 2013: LJ was discharged from hospital and accommodation was provided in supported lodgings in Dorking by way of foster care. It is accepted by the Defendant that these were provided pursuant to a duty under s. 20 with the consequences which follow. He remains living there with foster care, but sees a good deal of SJ, and sometimes stays for the weekend at JO’s. His mental health problems appear to be behind him and he is doing well.

The effect of LJ moving into foster care was to alleviate to some extent the pressures on both space and finances in JO’s household. The food vouchers provided by the Defendant to JO were reduced from £60 per week to £30.

On 7 March 2013 the Defendant carried out a further assessment of SJ, which found that she was not a child in need.

On 28 May 2013 LJ attained the age of 18.

The hearing ordered by HHJ Sycamore QC (part substantive, part rolled up) was due to take place on 6 June 2013. Through no fault of the parties it was not possible to list the matter for a substantive hearing on that day. His Honour Judge Thornton QC made an order which recorded amongst other things that without accepting that SJ was a child in need, the Defendant would consider at a forthcoming meeting any further support which SJ might seek, and would support SJ in a referral to its Youth Support Services. The proceedings were adjourned generally and were to stand dismissed unless by 5 September 2013 the Claimant gave notice to reinstate proceedings and sought directions.

On 17 June 2013 there was a meeting between SJ, a volunteer youth advocate representing her interests, and members of the Defendant’s Child Services Team, pursuant to the agreement reached when proceedings were adjourned on 6 June 2013. This was in effect a further assessment during which SJ articulated her wishes, needs and concerns. The Defendant agreed to provide practical help to SJ in response to a number of specific requests, but did not accept that she was a child in need under s.17.

From early August 2013 SJ has ceased to be dealt with by the Defendant’s Child Services Team but has received further support from the Defendant’s Youth Support Services who continued contact with her at least until September 2013. As a result at about that time the £30 food vouchers to JO ceased.

Notice was given by the Claimants to reactivate the judicial review proceedings, and on 5 September 2013 the Claimants served comprehensive revised grounds headed Further Detailed Grounds. These inevitably sought to tailor the challenges so as to include events subsequent to the Supplementary Grounds served in January. This was the second shift in a moving target. The Further Detailed Grounds helpfully sought to identify what was left of the original grounds of challenge and what grounds of challenge it was desired to introduce in relation to more recent events. There were responsive pleadings, but unfortunately no directions hearing or further order before the matter came before me as the final hearing on 20 February 2014. This took the parties by surprise and led to a late exchange of evidence as to the current position, about which I make no criticism.

At the beginning of the hearing and with the assistance of counsel, it was possible to identify the remaining issues which fell to be determined. All those relating to LJ fell away. Despite the moving target, the Defendants were content for the Court to address SJ’s current circumstances in order to address the real issues in dispute. On her behalf it was confirmed that no section 20 point was being pursued. Paragraph 95 of the Further Detailed Grounds had identified the relief which was still being sought as of September 2013. It included the following:

“Relief

95.

The Court is respectfully requested to

a.

Declare that at all material times each of the Claimants SJ and LJ (who became an adult on 28 May 2013) was a child in need;

b.

Quash the present assessment of SJ on the basis that she is a child in need;

c.

Require the Defendant to undertake a lawful assessment of SJ within 21 days, and in the interim to provide a lawful level of support for her [It is submitted that a fair and lawful level of support would be not less than that which would be paid to a foster carer for her] …

d.

………”

It was recognised that there was insufficient hearing time to conduct a historical analysis of the kind apparently sought by paragraph 95(a) as to the lawfulness of the section 17 decisions made or not made in the past, and that in any event such a historical investigation might have little if any practical utility. Accordingly Mr Presland confirmed on behalf of the Claimants at the end of the hearing, with conspicuous good sense, that such relief would not be pursued, without prejudice to his submissions that the previous history of decision making constituted important evidence and context for the issue of whether SJ is currently a child in need.

Section 17 of the Children Act 1989 provides:

“(1)

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—

(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

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.

…….

(3)

Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.

(6)

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 cash.

For the purposes of this Part a child shall be taken to be in need if -

(a)

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;

(b)

his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c)

he is disabled,

and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

(11)

……………..in this Part—

“development” means physical, intellectual, emotional, social or behavioural development; and

“health” means physical or mental health.”

The meaning of “child in need” was considered by Lord Nicholls in R(G) v Barnet LBC [2004] AC at [30] in the following terms:

“30.

…. The “needs” of a child for services is itself an inherently imprecise concept. “Needs” are open-ended. Some limit can be placed on what are to be regarded as the needs of a child for the purposes of this legislation if the legislation is read, as it should be, as a reference to reasonable needs. Even so, this leaves much scope for differing views. Questions of degree will often arise. Likewise, the statutory obligation to provide a range and level of services “appropriate” to the needs of children in need gives a local authority considerable latitude in determining what is “appropriate” in an individual case in all the circumstances. In some cases the type and level of service provided may properly fall short of meeting all the child’s needs as assessed. The extent of the latitude in each case depends upon the circumstances, prominent among which are the nature of the service in question and the nature and extent of the needs of the child. Cost is also an element which may properly be taken into account in deciding what is “appropriate” in a particular case. The extent to which cost, and hence the resources of a local authority, may be taken into account depends upon all the circumstances including how basic is the assessed need, the ease or difficulty with which it may be met, and the consequences of not meeting it. In a word, despite this latitude the council must act reasonably.”

This was a minority speech in relation to the duty to meet needs. The majority held that the duty in section 17 was a “target” duty which gives rise to a specific duty on the part of a local authority to assess a child’s needs but no specific right to provision of the assessed services. Nevertheless it remains an authoritative statement that determining a child’s statutory “needs” is not an exercise in applying objective criteria to a simple binary test. “Needs” are an elastic concept on which the value judgment of different persons may legitimately differ to a considerable extent.

In R (VC & others) v Newcastle City Council [2012] PTSR 546 Munby LJ explained:

“29.

The final words in sections 17(10) (a) and (b) are important. The duties of a local authority do not extend to all children who might be said to be “in need”. Apart from a child who is “disabled” in the statutory sense, they apply only to a child who “without the provision for him of services by [the] local authority” will fall within one or other of the statutory criteria. As the Court of Appeal put it in R (P) v Secretary of State for the Home Department [2001] 1 WLR 2002, paras 95 and 97:

“95... the distinguishing feature of a ‘child in need’ for this purpose is not that he has needs—all children have needs which others must supply until they are old enough to look after themselves—but that those needs will not be properly be (sic) met without the provision of local authority social services.”

“97… The local social services authority do not have the duty, or even the power, to make a global assessment of a child’s needs, still less to determine what would be in the best interests of any individual child. The authority have the duty to assess the child’s need for their own services.”

30.

It follows that a child who in the colloquial sense is in need may not be in need in the statutory sense if his relevant needs are being met by some third party, for example, by a family member, by a charitable or other third sector agency or by another statutory body.

………..

32.

Consistently with this, section 17(8) provides that “Before giving any assistance . . . a local authority shall have regard to the means of the child concerned and of each of his parents”.”

The question whether SJ is a child in need in the statutory sense is not, in the first instance, a matter for judicial determination at all. Parliament has conferred the decision-making function upon the local authority and it is not for the judges to usurp a function imposed by Parliament on others. The judicial function is limited to judicial review, and then only on recognised grounds of public law challenge.

The recognised grounds of public law challenge relied on in this case are unreasonableness in the Wednesbury sense and apparent bias. As to the former, there are a number of different formulations of this well-known and oft-applied test; a common modern formulation is that the decision must be outside the range of reasonable responses open to the decision maker (see e.g. Boddington v British Transport Police [1992] 2 AC 143 at 175H per Lord Steyn). This is a high threshold in any case, but especially so in this case where the very concept of a “need” is loaded with a value judgement on which views may differ widely. It is moreover a qualitative evaluation vested by Parliament in the local authority, whose staff are well equipped to make it by training, experience and expertise in child welfare. It would require a clear case for the Court to be confident that it should substitute its own value judgment for that of the experts whom Parliament has trusted with making it.

As to apparent bias, the test is whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision maker was biased: see e.g. Magill v Porter [2001] 2 AC 357 at [103].

The main issue which remains for determination may therefore be formulated more precisely as whether the Defendant’s current failure to treat SJ as a child in need within the meaning of s. 17 is outside the range of reasonable responses which are open to the Defendant, or is tainted by apparent bias. If it is, it is appropriate for a further assessment to be made, which would engage the second and subsidiary issue as to whether an order should be made as to the level of financial provision pending the making of such assessment (Further Detailed Grounds paragraph 95(c)).

SJ’s current circumstances were dealt with in a witness statement from her solicitor, Ms Knowles, and a responsive statement from Ms Fearn, a social worker in the South East Child in Need Team who has been responsible for dealing with the family throughout until July/August 2013 when LJ was referred to another team and SJ was referred to Youth Support Services. The Claimants also provided an unsigned budget sheet from JO summarising her weekly expenditure and principal debts. The evidence may be summarised as follows.

SJ still resides with JO and her three children in the same accommodation in Epsom. This is now a stable placement and there is no reason to think it will not continue at least until she reaches the age of 18. She attends a 6^th form college, at which she is studying for three AS levels. A report from the Sixth Form Student Manager speaks of her in glowing terms as polite, positive, hardworking and “very well turned out”. The school has not expressed any concerns about her welfare.

JO provides SJ with her basic care needs, food, clothing and transport, for which JO receives benefits. SJ has free school meals at the college which is within walking distance. In addition SJ herself receives £20 per week from her father and £25 per week as a bursary from the school. The JO budget itemises £40 per week for pocket money and school trips, although it is not clear what part of this, if any, goes to SJ rather than the other children. It would be open to SJ to do some part time work to supplement her pocket money and bursary.

Her last appointment with Ms Price of Youth Support Services in September 2013 recorded that she was experiencing less anxiety than formerly. She still needed someone to talk to, and was receiving counselling support from the school and knew how to access Heads Together, a free and confidential counselling service for young people aged 14 to 24. Ms Price advised her to seek support from her GP if she needed further help with managing anxiety or wanted to be referred to further counselling. Her GP records show that there has been no attendance since June 2013 when she sought help for hay fever. In particular, there has been no attendance at the GP reporting emotional distress or anxiety or any other psychological problem. She has weekly counselling with a Relate Counsellor via the school and is also part of the Nurture Group at the school.

Ms Knowles’ statement identified three areas in which it was suggested that SJ needed, and felt she needed, further support:

As to (1), the Defendant does not consider that this is a need under s. 17. She sees the school counsellor, as well as Nurture Group, and is aware of access to further counselling from Heads Together should she feel the need, which she apparently does not. She lives with JO and sees LJ regularly. She is in contact with her father who provides £20 per week. If she is not in contact with her mother she could be. There is an extended family, including uncles. None of the recent evidence suggests a severe emotional or psychological problem. The school reports paint a picture of a flourishing student and the medical records show that there has been no attendance since June 2013 for emotional distress, anxiety or any other psychological problem. Accordingly the Defendant’s conclusion is that SJ does not require an allocated social worker to speak to when she needs support. Her emotional needs are being met by these professionals and her family in the same way as those of any young person of a similar age. In my view this is plainly within the range of reasonable responses which is open to the Defendant, even if the views of others might differ.

As to (2), the Defendant’s view that SJ is adequately provided for financially. She has pocket money of £20 per week from her father and a bursary of £25 from the school to help with books and clothes. She could get part time work to supplement this. The desires she identified in the meeting of 17 June 2013, such as money for bespoke hair care products and treatment, and for “doing stuff” such as buying snacks, and lunch with her friends, are entirely understandable for a teenager in her position, but are better characterised as wants than as needs in the statutory sense.

So far as the household budget is concerned, JO has enough to provide for SJ’s food, clothing and transport and is doing so adequately. Whilst it is true that her latest budget suggests that she is running up further debt, there are items which could properly be curtailed to balance the budget. A child is not necessarily in need because the household finances are tight and allow only a modest standard of living without, for example, pet food and satellite television, which feature in JO’s budget. The Defendant has had to reach a judgment on the household finances without any information about contributions which are made or available to JO from either of the fathers of her children, or from her own mother. SJ’s father is in employment and the Defendant might reasonably assume that he is capable of a more substantial payment than the £20 which SJ says she receives from him. But even without such further contribution, the Defendant’s assessment is that household finances are tight but adequate to enable provision for SJ’s health and development needs within the constraints of the household income. In my view this is plainly within the range of reasonable responses which is open to the Defendant, even if the views of others might differ.

The gravamen of the evidence is not so much that financial constraints on the household budget have resulted in insufficient being spent on SJ, but rather that in order to be able to meet the required level of provision for SJ’s welfare, JO is spending more than she receives and can only make adequate provision by running up debt. But the Defendant is entitled to take the view that this could be cured by better management by JO of the household budget. Anxiety on the part of SJ that she is the cause of this is not in the circumstances of this case enough to make her a child in need, or at least a local authority might reasonably take that view on all the material about SJ’s mental state.

As to (3), SJ has been advised that although she would be entitled to Income Support as a 17 year old, the effect would be to reduce the child related benefits paid to JO in respect of her by a greater amount, so that it is not an attractive option.

In summary, the Defendant’s current assessment is that there are no current indications that SJ is unlikely to maintain a reasonable standard of health or development, or that her health or development is being, or is likely to be, significantly impaired without the provision of local authority services. That is a conclusion which the Defendant is reasonably entitled to reach on the available evidence of the position today.

Mr Presland’s attack on the reasonableness of the Defendant’s current decision not to treat SJ as a child in need also focussed on a historical analysis. He contended that the decision was irrational because the Council had accepted that she was a child in need between April 2011 and October 2012, and nothing had changed for the better since then.

There are two answers to this argument. The first is that it is incorrect to say that SJ’s circumstances have not changed for the better. Her placement in JO’s home is stable. JO is no longer suffering the emotional instability which led to the April 2011 assessment. The accommodation must at least to some extent be less cramped now that LJ is not living there. SJ is older, now 17, and doing well at school and socially. She is in contact with her father. Her mother is no longer missing: she is in this country and can be contacted by SJ if she wishes (LJ has contact with the mother). JO’s finances are not the same, and disclose a household budget on which she ought to be able to cope. All these matters call for fresh consideration. As is observed in paragraph 32 of the Government’s Working Together to Safeguard Children guide dated March 2013, assessment is a continuing process, not an event.

Secondly, the Defendant is entitled, indeed bound, to address SJ’s current circumstances as it finds them to be now, and taking into account its current resources. Even if the circumstances had not changed for the better since she was last assessed as a child in need, it does not follow that a current assessment that she is not a child in need is irrational. SJ’s case is at the margins of the potential need for local authority services support, where views may legitimately differ. What matters is the Wednesbury reasonableness of the current decision making process which I have addressed above. This is not a case where the challenge can properly be based on the principle of legitimate expectation.

It follows that the Wednesbury basis of challenge fails.

The matters referred to as showing apparent bias were:

In this last respect, the Defendant has been entitled to exercise a degree of scepticism when the Claimant’s solicitor has at various stages procured and provided financial information from JO but its form and content have raised a number of questions and doubts as to whether it provides a full and accurate picture. That can fairly be said of the unsigned budget from JO served very shortly before the hearing. Mr Presland submitted that it was the duty of the Defendant local authority to procure full information from JO, not an obligation which fell on the Claimant children. But this submission ignored the reality of the litigation, in which the Claimants had legal advice, and information was procured from JO and provided by their solicitor to the Defendant and the Court in order to seek to show the inadequacy of the household income. The local authority could properly expect such financial information to be full and frank. In what appeared to be an absence of full and frank information, the Defendant had to do the best it could in assessing SJ’s available support, and was entitled to exercise a degree of scepticism. That is not an indication of bias.

As to scepticism about potential support from others, the Defendant is bound to allocate its limited and stretched resources as effectively as possible. It is unrealistic to expect it to divert limited resources from front line care into financial investigations which are unlikely to be critical. In the absence of the ability to undertake limitless investigation, it must do the best it can, and proceed on the basis of reasonable probabilities, which may at times justify a degree of scepticism. The Defendant did not in this case proceed on the assumption that further financial support was in fact available from any of these sources, but rather that the financial income to the JO household which JO declared was adequate for SJ’s welfare. Its scepticism about the unavailability of further support is no indication of apparent bias.

As to the other aspects of the complaint, these are isolated matters in a long history of contact between the Defendant and LJ and SJ which has involved the Defendant making careful assessments and providing substantial support, both financial and emotional. No one who looked at the totality of the history of the Defendant’s contact with these children and their family would think that the Defendant had an animus against SJ or LJ. On the contrary the picture which emerges is that the Defendant devoted a great deal of time, energy, care and concern in seeking to support the family in many ways, financial and otherwise, and that it was diligently striving to fulfil its duties in the difficult circumstances imposed by numerous demands on limited resources. There is no apparent bias.

The applications (for substantive relief, insofar as Lang J gave permission, and otherwise for permission) will be dismissed.