S, R (on the application of) v London Borough of Sutton [2007] EWHC 1196 (Admin)

[2007] EWHC 1196 (Admin)

Case No CO/9680/2006

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18/05/2007

Before

MR JUSTICE STANLEY BURNTON

The Queen on the application of

Between

SClaimant

THE LONDON BOROUGH OF SUTTONDefendant

(Transcript of the Handed Down Judgment of

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Ian Wise (instructed by the Howard League for Penal Reform) for the Claimant

Stephen Bellamy QC (instructed by Sutton Legal Services) for Defendant

Hearing Hearing dates: 12 March; 10, 18 May 2007

Judgment

Stanley Burnton J :

[1]The Claimant is a 17-year-old girl, born on 26 July 1989. She has been referred to throughout as J, and notwithstanding the title to these proceedings I shall do so in this judgment.

[2]On 27 January 2006, following her plea of guilty to robbery, she was sentenced to a 24-month Detention and Training Order. She served her sentence at Medway Secure Training Centre. Under the sentencing regime, she would spend half that sentence in detention and the second half in the community under supervision. She was also eligible for early release under home detention curfew, provided she had an address to live at suitable for electronic monitoring.

[3]These proceedings were commenced on 16 November 2006. J was then seeking to compel the Defendant to provide suitable accommodation for her so as to enable her to be released from Medway STC on 24 November 2006. As will be seen, she was so released into accommodation, the suitability of which is no longer an issue. She now seeks judicial review of the following:(a) The refusal of the Defendant to accept that she had been accommodated by it for more than 13 weeks and that she was therefore an eligible child within the meaning of paragraph 19B of the Second Schedule to the Children Act 1989 (“the Act”) entitled to the benefits specified in the Act and Regulations;

(b) Its failure to make arrangements to accommodate her pursuant to section 20(1)(c) of the Act;

(c) Its alleged failure to carry out a lawful assessment of her needs in accordance with the “Framework for the Assessment of Children in Need and their Families” (“the Framework”).

[4]J seeks:(a) A declaration that she has been accommodated under section 20 of the Act since her release from custody on 24 November 2006; and

(b) An order requiring the Defendant to provide an assessment of her needs as required by the Framework.

[5]After distribution of my draft judgment, further written submissions were made on behalf of J, in particular on the questions that had arisen under section 20 of the Act, which led to the case being restored for further argument on 10 May 2007. Shortly before my revised judgment was to be handed down, Mr Wise brought to my attention the recent judgment of Holman J in H and others v London Borough of Wandsworth and others

[2007] EWHC 1082 (Admin)

, and requested further reconsideration. On 18 May 2007, I heard further short submissions. I express my gratitude to Holman J for his detailed and helpful exegesis of the legislative provisions. In the time available, I have regrettably been able to refer to his judgment only briefly.

[6]I confess having found this case troubling. I have sympathy with the positions of both parties. The interrelationship between sections 17 and 20 of the Act and the obligations of a local authority as a housing authority are not obvious. Clearly, local authorities should not be able to avoid their duty under section 20 inappropriately simply by offering accommodation under the Housing Act 1996. It is important that local authorities and those advising children claimants have so far as possible a clear understanding of the obligations of those authorities. It is for this reason that I have granted permission to appeal.

The facts

[7]At the times relevant to these proceedings, J was estranged from her mother, but not her father. They both had parental responsibility. J had an unfortunate history even before the events which are the subject of these proceedings. They begin with the robbery she committed in April 2005, when she was aged 15. On 2 August 2005, she appeared at Wimbledon Youth Court; she was committed to Kingston Crown Court, and remanded on bail. On 17 August, she appeared before Sutton Youth Court for an offence of assault occasioning actual bodily harm on her mother; she was remanded to local authority care. On 27 September, that Court varied the terms of her remand: she was permitted to reside with her father. On 27 October 2005, she appeared at Kingston Crown Court in respect of the robbery; she was remanded to secure accommodation. On 8 November 2005, the Crown Court granted her bail on condition that she lived at her father’s address in South Godstone in Surrey. In a letter to the Crown Court dated 10 November 2005, Sutton Youth Offending Team stated that the placement had failed, that within a matter of hours her father said that she was unable to stay with him, and: Members of Sutton YOT picked (J) up, and placed her with Pauline Williams at (an address in) Orchard Avenue, Mitcham, Surrey. Pauline is a family friend, and Jade’s father has now given permission for (J) to stay with Pauline. She has stayed with Pauline previously as part of her bail conditions. We are proposing that her bail conditions be varied to live as directed by Social Services, with her current address being with Ms Williams …

[8]Following receipt of this letter, on 11 November 2005 the Crown Court varied the conditions of her bail so as to require her to reside at Ms Williams’ address.

[9]As mentioned above, on 27 January 2006, J was sentenced to a 24-month DTO for the robbery. On 31 January 2006 she was sentenced to a 12-month DTO for the assault, to be served concurrently.

[10]In its letter of 20 June 2006, the Defendant said that on her release she would be encouraged to return to live with her father on her release; otherwise she would be treated as a homeless person. In an email in reply of that same date, the Howard League, who acted on her behalf, said that she had little contact with her father and was unable to live with either of her parents on her release. They stated that they believed her to be a child in need (section 17 of the Children’s Act 1989) and required accommodation on her release under section 20 of that Act.

[11]In July 2006, J’s case was allocated to June Webb, a social worker in Sutton YOT. According to Ms Webb’s witness statement dated 7 February 2007, during her meetings with her J made it clear that she did not want to live in Sutton, nor to be accommodated by Sutton on her release.

[12]The Howard League wrote formally to the Defendant on 15 August 2006. They asked that the Defendant undertake an assessment of the claimant pursuant to section 17 of the Act and Local Authority Circular (2004)26. They said that she had a poor relationship with her father, who had a new partner and family; and the claimant did not get on with his new partner. Previous placements with him had failed. They said that the claimant was likely to be released on 24 November 2006. They said that they understood that she had been remanded to the care of the local authority under section 23 of the Children and Young Persons Act 1969, and placed at Oakhill Secure Training Centre for a period of 12 days, following which she had been placed, unsuccessfully, with her father. Their letter continued:

“Homeless team and housing legislation We note that your client is planning to refer our client to the homeless team. We urge your client to reconsider its position. Our client is a child who will be homeless and in need which imposes a duty on your client to engage with our client pursuant to s20 Children Act 1989. The homeless persons regulations preclude children for whom s20 CA 1989 is engaged. Please note we will vigorously resist any attempt by your client to evade its duties of accommodation and support to our client. Legal basis for this request We refer to local authority circular (2004)26. This is relevant as our client is in custody, is a child in need and will require suitable accommodation and support on release. As our client was “looked after” prior to being sentenced your client has a duty to maintain contact with her and make preparations for her release. This could include a core assessment and we ask that this is completed.”

Legal basis for this request

[13]On 23 August 2006, Sara Gardner, a social worker with Sutton, was appointed as J’s allocated social worker. On 1 September 2006, Ms Gardner completed J’s Initial Assessment. It confirmed that she did not want to live in Sutton on her discharge but near her father.

[14]Ms Gardner completed a core assessment on 19 October 2006. In her witness statement, Ms Gardner stated: (J’s) father was not able to offer accommodation to ‘J’ due to her difficult relationship with his partner. And: “During the assessment process J made the following matters very clear: … b. She did not want to live in the London Borough of Sutton on her release from Medway … c. She did not want to be accommodated by the London Borough of Sutton when she was released from Medway (the concept and meaning of accommodation under the Children Act 1989 was (sic) fully explained to her). d. She wanted to live near her father in the Godstone area of Surrey. e. She wanted her own 3 or 4 bedroom house. …. J was … not a child who required accommodation under section 20 of the Children Act 1989. She had parents with parental responsibility for her, she (had) not been lost or abandoned and no one appeared to be prevented from providing her with accommodation. The friend she had lived with had not on the information we had, been caring for her but merely providing accommodation for her during her remand period. It was apparent that if accommodation was available for J in the area where her father lived, which is what J wanted, her welfare would not be seriously prejudiced if we did not accommodate her under section 20 against her wishes.” b. She did not want to live in the London Borough of Sutton on her release from Medway … c. She did not want to be accommodated by the London Borough of Sutton when she was released from Medway (the concept and meaning of accommodation under the Children Act 1989 was (sic) fully explained to her). d. She wanted to live near her father in the Godstone area of Surrey. e. She wanted her own 3 or 4 bedroom house.

[15]Also on 19 October 2006, Sutton’s Children and Families Panel, chaired by Lynda Crellin, considered J’s case. According to Ms Crellin, they discussed whether J was a child to whom both sections 17 and 20 of the Act applied, and whether she had been a looked after child. They concluded that she had not been in local authority care for the prescribed period of 13 weeks. According to the minutes of the meeting:

“On visiting (J) she does not wish to be accommodated under section 20 or placed in B&B. She would like supported accommodation in the Redhill area. … YOT are involved with (J) and would take her to HPU on discharge and she would be placed in B&B until vacancy at supported accommodation … … It was agreed that there would be no added benefit to (J) being Looked After but this should be discussed with her to obtain her views on whether or not she would like to be Looked After.”

[16]In relation to section 20, they concluded that since placement under section 20 was contrary to her expressed wishes, and she was unlikely to stay in it, her best interests would be served by accommodation near her father in Tandridge.

[17]There having been no substantive response to the letter of 15 August, on 20 October 2006 the Howard League sent a letter before claim, contending that there had been failures of the Defendant:

“1 to appoint a suitably qualified and experience social worker from the children’s services department, 2 to identify and provide suitable and appropriate accommodation to assist the proposed claimant’s two month early release on 24th November 2006 pursuant to s20 Children Act 1989 3 to comply with National Standards for Youth Justice Services, in particular Chapter 11, 4 to assess the proposed claimants needs consistent with “the Framework for the Assessment if Children In Need and Their Families” pursuant to S17 of the Children Act 1989 and prepare a care plan, and 5 to work with the Claimant to prepare for her early release pursuant to Local Authority Circular LAC (2004) 26.”

[18]On 23 October 2006, Ms Gardner sent J a copy of the Core Assessment.

[19]The Defendant responded to the letter before claim by its letter dated 25 October 2006. It stated that it had appointed a social worker (Sarah Gardner), who had visited J and produced 2 assessments that were enclosed. The Children and Families Panel had met (on 19 October 2006) to discuss J’s accommodation, and had decided that, although she was a child in need, she was not a Looked After Child, and so the local authority would not provide accommodation to her other than as a homeless person; she would be able to give the Homeless Persons Unit as her address for the purposes of her release.

[20]The Howard League sent a further letter before claim dated 1 November 2006, contending that the local authority had failed to comply with the Children (Leaving Care) Regulations 2001, to appoint a social worker and personal advisor, to prepare a Pathway Assessment of Needs, and to prepare a Pathway Plan. They asserted that J was a “qualifying child” for the purposes of the Regulations, on the basis that she had been “accommodated” by the Defendant pursuant to section 23 of the 1969 Act for the period from 25 August 2005 until her final sentence hearing on 27 January 2006, a period in excess of the 13 weeks required by the Regulations, and that she had been “looked after” on her 16th or 17th year. The letter continued:

“We refer your client to page 2 of the Core Assessment (bottom of page) where it is recorded that, “…29/9/05: Kingston Crown Court with bail conditions of:… (remanded to LAC).”

The relevance of this is that our client had been at this point in time in the care of the local authority. We had attempted to clarify the position with the Youth Offending Team however they have been instructed bizarrely (presumably by your department) not to discuss matters with us. We have contacted Wimbledon Magistrates Court who have confirmed that our client was in the care of the local authority according to court records on 25th August and 8th September 2005. It is concerning that your client has not disclosed this significant information to us voluntarily and is obstructing appropriate cooperation between the Defendant and the Claimant. We are alarmed that your client is not approaching this case with utmost transparency and cooperating with litigation protocol. We ask that your client address this matter with appropriate expedition. If our client is entitled to leaving care support then this provides to her a range of services and support until she is 21 years of age. It also places the additional burden upon your client to ensure that she is appropriately accommodated and supported upon release.” “…29/9/05: Kingston Crown Court with bail conditions of:… (remanded to LAC).”

[21]In its letter of 3 November, the Defendant disputed that J was a Looked After Child. It asserted that she had been remanded into local authority care for only 42 days, not the requisite 13 weeks; and it was therefore not necessary for the local authority to prepare a pathway plan. The Defendant continued to accept that she was a child in need, and would assist her, but stated that she did not wish to reside in the area of Sutton, but wanted to be in the borough of Tandridge in order to be near her father.

[22]On 8 November 2006, June Webb visited J at Medway to discuss her accommodation. J completed a housing application form for Tandridge Borough Council which was sent to that authority.

[23]On 9 November 2006, the Defendant was informed that J had been cleared to leave Medway STC on 24 November.

[24]The Howard League sent a final letter before claim dated 14 November 2006. The claims put forward which remain live were as follows:(a) The Defendant had failed to construe correctly s 17 and s 20 of the Children Act 1989, since she was in need and satisfied the requirement of section 20(1)(c).

(b) The Initial Assessment of 1 September 2006 was unlawful and did not comply with the Framework for the Assessment of Children in Need and their Families: it had not been signed by J or seen by her, did not address her needs on her release from custody, did not assess her father’s parenting capacity or the dynamics of his family. The Initial Assessment failed adequately to assess J and its conclusions were fatally flawed.

[25]The local authority replied by letter dated 16 November. It stated that J did not wish to be accommodated, and was in agreement with the local authority plan. It added that if it were to accommodate J under section 20 of the Act, it would be necessary to place her in approved accommodation, i.e. foster or residential care; and owing to the electronic tag the local authority would have difficulty in placing her in either Sutton or Tandridge. On the same date, Tandridge Housing Department informed Ms Webb that a place had been identified for J at Wayside Hostel in Redhill, near her father.

[26]These proceedings were begun on 17 November 2006, seeking relief based on the allegations that the defendant had failed to make proper arrangements for J to be accommodated on her release from custody, contrary to section 20(1)(c) and/or section 20(3) of the Act and had failed to conduct a lawful assessment of her needs.

[27]In her witness statement dated 22 November 2006, J said that she had stayed in the past with “a family friend called Pauline Williams (37 years) who has four children”, and who was now unable to look after her “as she has no room at the home and is unable to cope with my needs in addition to her own children”. J confirmed that she did not want to return to Sutton, but that Tandridge was ideal for her, but she could not live in bed and breakfast or hostel accommodation; she wanted her own flat. She disagreed with the local authority’s statement that she did not want to be accommodated by it.

[28]Nonetheless, on 23 November 2006 J reluctantly accepted the accommodation at Wayside.

[29]J was released from Medway STC on 24 November 2006. Ms Webb collected her and took her to the accommodation at Wayside. J signed her licence agreement with Wayside, and was given money for subsistence and advance rent by Ms Webb, who had received it from social services. She was referred to Surrey YOT.

[30]On the same date the Defendant filed its summary grounds for contesting the claim. In paragraph 3, it accepted that it had a duty and a responsibility under section 20. It has resiled from that admission. It asserted that it had carried out assessments in accordance with the Framework; that Wayside was suitable accommodation; and that the Children (Leaving Care) Regulations did not apply because she had not been “looked after” for the requisite period of 13 weeks.

[31]In her witness statement dated 7 December 2006, Lynda Crellin, the Executive Head of Children and Families Service of Sutton, said that J had been assessed as being a child in need, and in priority need under section 189 of the Housing Act 1996, but it was not felt that her welfare would be seriously prejudiced if she was not provided with accommodation, and therefore did not require accommodation under section 20 of the Children Act. She had told the local authority that she did not want to be a looked after child.

[32]On 11 December 2006, J was evicted from Wayside. She was placed in bed and breakfast accommodation as a homeless person. On 13 December she was placed at Whyteleafe Hostel, near Purley, where she remains.

[33]On 7 February 2007, June Webb, the social worker with Sutton’s YOT, signed a witness statement in which she said that on 11 November 2005 J had been “bailed to live as directed by Social Services which was with a friend of the family; this was agreed by J’s father”. The friend of the family referred to was of course Pauline Williams. This statement was the basis of the contention that between 11 Nov 2005 and 27 January 2006 J was in the care of the local authority.

The issues

[34]The issues at the hearing of this claim were as follows:(a) Was J a child to whom section 20 applied before she was sentenced on 27 January 2006?

(b) Was she such a child when she was released on 24 November 2006?

(d) Did the Defendant fulfil its duty to carry out a proper assessment of J under section 17 of the Act?

The relevant statutory provisions

[35]Sections 17, 20, 22, 23, 23A and 23B of the Act, so far as is relevant, are as follows: Provision of services for children in need, their families and others 17(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.

(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. … (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-- (a) ascertain the child's wishes and feelings regarding the provision of those services; and (b) 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. (5) Every local authority-- (a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23, 23B to 23D, 24A or 24B; and (b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service. (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 exceptional circumstances, in cash. … (10) 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. Provision of accommodation for children: general 20 (1) 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-- (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) 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. (2) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within-- (a) three months of being notified in writing that the child is being provided with accommodation; or (b) such other longer period as may be prescribed.

(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 prejudiced if they do not provide him with accommodation.

(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.

(5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare-- (a) ascertain the child's wishes and feelings regarding the provision of accommodation; and (b) 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.

(7) A local authority may not provide accommodation under this section for any child if any person who-- (a) has parental responsibility for him; and (b) is willing and able to-- (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, objects.

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. … (11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section. 22 General duty of local authority in relation to children looked after by them (1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is-- (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B. (2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours. (3) It shall be the duty of a local authority looking after any child-- (a) to safeguard and promote his welfare; and (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case. (3A) The duty of a local authority under subsection (3)(a) to safeguard and promote the welfare of a child looked after by them includes in particular a duty to promote the child's educational achievement. (4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of-- (a) the child; (b) his parents; (c) any person who is not a parent of his but who has parental responsibility for him; and (d) any other person whose wishes and feelings the authority consider to be relevant, regarding the matter to be decided. (5) In making any such decision a local authority shall give due consideration-- (a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain; (b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and (c) to the child's religious persuasion, racial origin and cultural and linguistic background. … Provision of services for children in need, their families and others (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, (a) ascertain the child's wishes and feelings regarding the provision of those services; and (b) 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. (a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23, 23B to 23D, 24A or 24B; and (b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service. (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, "development" means physical, intellectual, emotional, social or behavioural development; and "health" means physical or mental health. Provision of accommodation for children: general Provision of accommodation for children: general (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) 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. (a) ascertain the child's wishes and feelings regarding the provision of accommodation; and (b) 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. (a) has parental responsibility for him; and (b) is willing and able to-- (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, (a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B. (a) to safeguard and promote his welfare; and (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case. (a) the child; (b) his parents; (c) any person who is not a parent of his but who has parental responsibility for him; and (d) any other person whose wishes and feelings the authority consider to be relevant, (a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain; (b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain; and (c) to the child's religious persuasion, racial origin and cultural and linguistic background. Provision of accommodation and maintenance by local authority for children whom they are looking after 23 (1) It shall be the duty of any local authority looking after a child-- (a) when he is in their care, to provide accommodation for him; and (b) to maintain him in other respects apart from providing accommodation for him. (2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by-- (a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with-- (i) a family; (ii) a relative of his; or (iii) any other suitable person, on such terms as to payment by the authority and otherwise as the authority may determine (subject to section 49 of the Children Act 2004); (aa) maintaining him in an appropriate children's home; or (f) making such other arrangements as-- (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State. (2A) Where under subsection (2)(aa) a local authority maintains a child in a home provided, equipped and maintained by the Secretary of State under section 82(5), it shall do so on such terms as the Secretary of State may from time to time determine. (3) Any person with whom a child has been placed under subsection (2)(a) is referred to in this Act as a local authority foster parent unless he falls within subsection (4). (4) A person falls within this subsection if he is-- (a) a parent of the child; (b) a person who is not a parent of the child but who has parental responsibility for him; or (c) where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made. (5) Where a child is in the care of a local authority, the authority may only allow him to live with a person who falls within subsection (4) in accordance with regulations made by the Secretary of State. (5A) For the purposes of subsection (5) a child shall be regarded as living with a person if he stays with that person for a continuous period of more than 24 hours. (6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with-- (a) a person falling within subsection (4); or (b) a relative, friend or other person connected with him, unless that would not be reasonably practicable or consistent with his welfare. (7) Where a local authority provide accommodation for a child whom they are looking after, they shall, subject to the provisions of this Part and so far as is reasonably practicable and consistent with his welfare, secure that-- (a) the accommodation is near his home; and (b) where the authority are also providing accommodation for a sibling of his, they are accommodated together. (8) Where a local authority provide accommodation for a child whom they are looking after and who is disabled, they shall, so far as is reasonably practicable, secure that the accommodation is not unsuitable to his particular needs.

(9) Part II of Schedule 2 shall have effect for the purposes of making further provision as to children looked after by local authorities and in particular as to the regulations that may be made under subsections (2)(a) and (f) and (5).

(10) In this Act-- "appropriate children's home" means a children's home in respect of which a person is registered under Part II of the Care Standards Act 2000; and "children's home" has the same meaning as in that Act. The responsible authority and relevant children 23A (1) The responsible local authority shall have the functions set out in section 23B in respect of a relevant child. (2) In subsection (1) “relevant child” means (subject to subsection (3)) a child who— (a) is not being looked after by any local authority; (b) was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and (c) is aged sixteen or seventeen. (3) The Secretary of State may prescribe— (a) additional categories of relevant children; and (b) categories of children who are not to be relevant children despite falling within subsection (2). (4) In subsection (1) the “responsible local authority” is the one which last looked after the child. (5) If under subsection (3)(a) the Secretary of State prescribes a category of relevant children which includes children who do not fall within subsection (2)(b) (for example, because they were being looked after by a local authority in Scotland), he may in the regulations also provide for which local authority is to be the responsible local authority for those children. Additional functions of the responsible authority in respect of relevant children 23B (1) It is the duty of each local authority to take reasonable steps to keep in touch with a relevant child for whom they are the responsible authority, whether he is within their area or not. (2) It is the duty of each local authority to appoint a personal adviser for each relevant child (if they have not already done so under paragraph 19C of Schedule 2). (3) It is the duty of each local authority, in relation to any relevant child who does not already have a pathway plan prepared for the purposes of paragraph 19B of Schedule 2— (a) to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and (b) to prepare a pathway plan for him. (4) The local authority may carry out such an assessment at the same time as any assessment of his needs is made under any enactment referred to in sub-paragraphs (a) to (c) of paragraph 3 of Schedule 2, or under any other enactment. (5) The Secretary of State may by regulations make provision as to assessments for the purposes of subsection (3). (6) The regulations may in particular make provision about— (a) who is to be consulted in relation to an assessment; (b) the way in which an assessment is to be carried out, by whom and when; (c) the recording of the results of an assessment; (d) the considerations to which the local authority are to have regard in carrying out an assessment. (7) The authority shall keep the pathway plan under regular review. (8) The responsible local authority shall safeguard and promote the child's welfare and, unless they are satisfied that his welfare does not require it, support him by— (a) maintaining him; (b) providing him with or maintaining him in suitable accommodation; and (c) providing support of such other descriptions as may be prescribed. (9) Support under subsection (8) may be in cash. (10) The Secretary of State may by regulations make provision about the meaning of “suitable accommodation” and in particular about the suitability of landlords or other providers of accommodation.

(11) If the local authority have lost touch with a relevant child, despite taking reasonable steps to keep in touch, they must without delay— (a) consider how to re-establish contact; and (b) take reasonable steps to do so, and while the child is still a relevant child must continue to take such steps until they succeed.

(12) Subsections (7) to (9) of section 17 apply in relation to support given under this section as they apply in relation to assistance given under that section.

(13) Subsections (4) and (5) of section 22 apply in relation to any decision by a local authority for the purposes of this section as they apply in relation to the decisions referred to in that section. (a) when he is in their care, to provide accommodation for him; and (b) to maintain him in other respects apart from providing accommodation for him. (a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with-- (i) a family; (ii) a relative of his; or (iii) any other suitable person, on such terms as to payment by the authority and otherwise as the authority may determine (subject to section 49 of the Children Act 2004); (aa) maintaining him in an appropriate children's home; or (f) making such other arrangements as-- (i) seem appropriate to them; and (ii) comply with any regulations made by the Secretary of State. (a) a parent of the child; (b) a person who is not a parent of the child but who has parental responsibility for him; or (c) where the child is in care and there was a residence order in force with respect to him immediately before the care order was made, a person in whose favour the residence order was made. (a) the accommodation is near his home; and (b) where the authority are also providing accommodation for a sibling of his, they are accommodated together. "appropriate children's home" means a children's home in respect of which a person is registered under Part II of the Care Standards Act 2000; and "children's home" has the same meaning as in that Act. (a) is not being looked after by any local authority; (b) was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and (c) is aged sixteen or seventeen. (a) additional categories of relevant children; and (b) categories of children who are not to be relevant children despite falling within subsection (2). Additional functions of the responsible authority in respect of relevant children (a) to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and (b) to prepare a pathway plan for him. (a) who is to be consulted in relation to an assessment; (b) the way in which an assessment is to be carried out, by whom and when; (c) the recording of the results of an assessment; (d) the considerations to which the local authority are to have regard in carrying out an assessment. (a) maintaining him; (b) providing him with or maintaining him in suitable accommodation; and (c) providing support of such other descriptions as may be prescribed.

Additional functions of the responsible authority in respect of relevant children

(b) take reasonable steps to do so,

[36]Paragraph 19B of Schedule 2 to the Act provides, so far as material, that an eligible child is a child who is aged 16 or 17 and “has been looked after by a local authority for a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen. By regulation 3 of the Children (Leaving Care) (England) Regulations 2001, the prescribed period is 13 weeks and the prescribed age is 14.

Was J an eligible or looked after child?

[37]In its summary grounds for contesting this claim, Sutton stated that it had accepted that it had a duty and responsibility under section 20, which it asserted it had lawfully fulfilled. At the beginning of the hearing of this claim, Mr Bellamy QC resiled from that concession. Mr Wise did not suggest that the acceptance to which it referred was evidenced by any contemporaneous correspondence or internal document, and in these circumstances Sutton was permitted to resile from it and to argue the issue.

[38]It is common ground that this issue turns on whether, when she was accommodated by Ms Williams between 11 November 2005 and 27 January 2006, J was “looked after” by Sutton for the purposes of paragraph 19B of schedule 2 to the Act. If she was so looked after, the total period during which she was so looked after exceeded the specified 13 weeks; otherwise it amounted to only 42 days.

[39]A child is looked after by a local authority for these purposes if she is in their care or provided with accommodation by the authority in the exercise of its functions under, for present purposes, section 20.

[40]The question therefore arises whether J was subject to section 20 when her placement with her father failed on 10 November 2005. Sutton accept that she was a child in need. Section 20 distinguishes between caring and accommodation, but J had lived with and presumably been cared for by her father. Mr Bellamy QC disputed that her father was “prevented” from providing accommodation. Prevention undoubtedly involves an objective test. It is not satisfied if the facts are only that child does not want to live with someone who is willing to provide suitable accommodation. But circumstances do arise where people are so incompatible that they simply cannot live together. According to Ms Gardner’s witness statement, J’s father was unable to offer her accommodation on her release because of her difficult relationship with his partner. The fact that J’s placement with her father in November 2005 failed so speedily supports the conclusion that on 11 November 2005 he could not provide accommodation for her. In these circumstances, section 20(1)(c) was satisfied, and Sutton was under the duty imposed by that subsection.

[41]The next question is whether J’s placement with Ms Williams was effected by Sutton in performance of its section 20 duty or otherwise. In this connection, Mr Wise relied on the judgment of the Court of Appeal in London Borough of Southwark v D

[2007] EWCA Civ 182

. The facts of that case were not dissimilar to those of the present. There too the child, S, could not live with her father, in that case by reason of his violence, and the local authority arranged for her to live with ED, a lady with whom her father had had a previous relationship. The issue in D was whether ED was entitled to be paid by the local authority for her accommodation, care and maintenance of S. If the placement had been made under section 23(2), she was so entitled; if it was a private fostering relationship, she was not. Smith LJ, giving the judgment of the Court, said:49. We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to 'side-step' that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. Usually, a private fostering arrangement will come about as the result of discussions between the proposed foster parent and either the child's parent(s) or a person with parental responsibility. But we accept that there might be occasions when a private arrangement is made without such direct contact. We accept that there might be cases in which the local authority plays a part in bringing about such an arrangement. However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.

50. In the present case, the local authority took a central role in making the arrangements for S to live with ED. It directed the school that the father must not be allowed to take S away. It arranged a meeting attended by all the relevant parties. The father was told that he must have no contact with S. Those factors are far more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement. The father consented to the proposed arrangement with ED. S was consulted as to her wishes. Mr Dallas contacted ED to ask her if she would take S in. Mr Dallas delivered S to ED's home and checked that the arrangements were satisfactory. Those factors were equally consistent with an exercise of statutory powers as with the making of a private arrangement. However, there was no contact between ED and either parent. Mr Dallas said nothing to ED, either on the telephone or the following day at his office, about the arrangement being a private one, in which she would have to look to the parents for financial support or to Lambeth for section 17 discretionary assistance. Far from it, he gave her to understand that Southwark would arrange financial support. In our judgment, the judge was quite right to conclude that this was not a private fostering arrangement. Indeed, it is hard to see how he could have come to any other conclusion.

[42]In the present case, the evidence as to the nature of the arrangement with Ms Williams is scant. This is, I think, because the decision in Southwark v D was so recent that the evidence did not address the facts shown by that decision to be relevant.

[43]The order made by Kingston Crown Court on 11 November 2005 did not place J in the care of Sutton, or even make her bail conditional in terms on her residing where directed by Sutton or in accommodation provided or approved by it. In this respect, the present case differs from Re C (Secure Accommodation: Bail)

[1994] 2 FLR 922

, in which Hollis J held that a child who had been bailed with a condition of residence as directed by the local authority had been “looked after” by the local authority. However, in that case while the child was remanded on bail subject to that condition the local authority had accommodated her in a children’s home. That fact of itself meant that she was “looked after” by the local authority.

[44]There is no evidence that Sutton made clear to Ms Williams that she must look to J’s father for financial support or assistance. On the other hand, there is no evidence that Ms Williams asked for, expected or was given any payment by Sutton for J’s accommodation. The only evidence is that some money was given for food: see the Core Assessment at page 22. However, in Southwark v D, nothing was said about financial support when the arrangement was made: see paragraph 8 of the judgment. The nearest I get to an understanding of what occurred is to be found in the Core Assessment, which has the following entry:

“10/11/05: YOT requested a fostering placement as (J) assaulted mother and father. Placement declined as family friend offered to provide accommodation.”

[45]The first sentence is incorrect: J had assaulted her mother, but not her father. But if the family friend, i.e. Ms Williams, did offer to provide accommodation, and that offer was accepted, the accommodation was not provided by Sutton in the exercise of its section 20 functions.

[46]In this unsatisfactory state of the evidence, despite Mr Wise’s further submissions, my conclusion remains that J was not a looked after child, not having been accommodated by Sutton for the prescribed period. I make it clear, however, that this has not been an easy decision, given the paucity of the evidence.

Should J have been provided with accommodation under section 20 of the Act on release?

[47]When this case was first argued, the parties’ submissions centred on the requirements contained in paragraphs (a), (b) and (c) of subsection (1). Having heard further argument, however, I think that at that stage insufficient attention was given to the requirement that the child in need must “appear to (the local authority) to require accommodation”. I received no further submission on those paragraphs, and I shall therefore first address them.

[48]It is not suggested that section 20(1)(a) or (b) applied to J at any relevant time. Section 20(1)(c) distinguishes between caring and accommodation. The person referred to is not clearly defined, but is presumably the person who was last caring for the child: compare the language of paragraph (a) (“no person …”). The person last caring for J when she was sentenced was either her father or Ms Williams. I have already held that her father was prevented from providing accommodation for her in November 2005. I see no reason why the position should have been different in November 2006. I therefore do not accept Ms Gardner’s statement that no one was prevented from providing J with accommodation. I have to say, however, that the evidence is not consistent. According to the Initial Assessment prepared by Ms Gardner, her father “had informed the social worker and duty social workers on numerous occasions he was willing for (J) to reside in his care but he was aware that (J) did not want to live with him because she would have to comply with ‘rules and boundaries’”. On that basis, section 20(1)(c) was not satisfied. Yet later in the same document, it is stated that J’s father “does not feel that (J) could live with his family”.

[49]So far as Ms Williams is concerned, Sutton’s own evidence is that she provided accommodation, but did not care for J. In my judgment, therefore, Sutton were mistaken in concluding that none of the conditions for the application of section 20 was satisfied. In these circumstances, it is unnecessary to consider whether subsection (3) applied; my provisional view is that Sutton were entitled to conclude that it did not.

[50]On the face of it, section 20 imposes a mandatory duty to provide accommodation under that provision once any of the conditions for the imposition of the duty is satisfied, and Mr Wise submitted that it does. It would indeed be remarkable if a provision in such mandatory terms did not do so. However, that view appeared to be inconsistent with both authority and central government guidance. The authority in question is R on the application of M v Hammersmith and Fulham LBC

[2006] EWCA Civ 917

; the guidance is the paragraph of the Department of Health’s Guidance on Accommodating Children in Need and their Families (LAC (2003) 13), cited at paragraph 57 of the judgment of Wall LJ: Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families, published by the Government in April 2000. It should then use the findings of that assessment, which will include taking account of the wishes and feelings of the child (as required by section 20(6) of the Children Act), as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to his circumstances.

[51]Mr Wise submitted that this guidance, which had not been the subject of argument before the Court of Appeal, was wrong in law. I certainly find it difficult to see that section 20(6), which would seem to be directed to the question what accommodation should be provided under section 20, may be used to decide whether accommodation should be provided under that section, since ex hypothesi the conditions for the imposition of the section 20 duty have arisen. Nonetheless, it is clear that Wall LJ, and I think the other members of the Court of Appeal, considered it to be correct. Moreover, in H Holman J accepted that section 20(6) had a wider effect: see the last two sentences of paragraph 55 of his judgment; see too the second sentence of paragraph 60.

[52]I shall comment on the assessments carried out by Sutton below. However, it is clear that the information obtained by it amply justified, for the reasons given by its officers to which I have referred above, the conclusion that accommodation under section 20 was unsuitable for her: I refer to the evidence of Ms Gardner cited in paragraph 12 above. The Initial Assessment confirms that J’s position was that she did not want to reside in Sutton, but wanted to live near her father, who would be a good source of support for her. True it is that Sutton’s evidence as to her wishes is in contradiction with J’s later witness statement and what the Howard League were saying. However, it seems to me that Sutton was entitled to rely on what J informed them. In my judgment, it was not unreasonable for them to form the view that accommodation under section 20, which would have usually involved either a children’s home or a foster home, and the loss of entitlement to state benefits, was inappropriate. It is understandable that J would not have wanted this. That she did not do so is confirmed by the Core Assessment:

“(J) would like to live in a house and not a ‘dirty hostel’ and would like to reside in Redhill. (J) would like supported accommodation where there is secure entry, her own room and not where there are alcoholics and drug addicts. (J) knows someone who got a 4 bedroom house, and she would like the same, if not in Redhill then in the surrounding area.”

It appears from the same document that J’s father wanted her to be placed in supported accommodation near to where he lived.

[53]Against this background, the decision to offer J a place at Wayside, described in Ms Crellin’s witness statement of 7 December 2006, may have been sensible, whether it was so has not been an issue before me, Mr Wise not having argued it was unsuitable. I have to say, however, that I find it difficult to see that placing J in bed and breakfast accommodation, which is what Sutton had been contemplating, could have suited her needs. Acceptance of a duty to provide accommodation under the homelessness provisions of the Housing Act 1996 seems to me to show that a child requires accommodation for the purposes of section 20. But what is, it seems to me, crucial is that J accepted the place at Wayside.

[54]Section 20 applies only if the child requires accommodation. It seems to me that the statutory provisions and the guidance can be reconciled by focusing on that requirement. If a local authority lawfully concludes that what a child requires is only “help with accommodation”, assuming the accommodation in question to be suitable, he does not require accommodation under section 20: see paragraph 64 of the judgment of Holman J in H.. Similarly, in the unlikely event of a local authority as a housing authority being able to provide suitable self-contained accommodation for a child aged, say, 17, supported by social services, that child would not require accommodation for the purposes of section 20. Mr Wise submitted that a housing authority has no power to provide accommodation to a child in need, and he relied on the provisions of the Homelessness (Priority Need for Accommodation) (England) Order 2002. But that Order relates to priority need, and it seems to me does not exclude the power of a local authority to provide accommodation to a child aged 16 or 17 who is not in priority need.

[55]Mr Wise and Mr Bellamy were agreed that the relevant date for determining the existence of the section 20 duty was the date of J’s release from custody. On 1 and 2 November 2006, she had said that she would forego early release rather than be housed in Sutton. According to the Defendant’s evidence, she had said that she did not want to be accommodated by Sutton or in accommodation provided under the Act. By the date of her release, she did not require accommodation under section 20, because she had agreed to accept accommodation in Wayside. In these circumstances, my conclusion is that J was not then accommodated under section 20 and that the Defendant was not under a duty to do so on her release.

[56]However, I point out that Ms Crellin misunderstood the relationship between section 20 and priority need under the Housing Act 1996. A child such as J, aged 16 or 17, to whom a duty to provide accommodation is owed under section 20 of the Act is excluded from having a priority need by paragraph (2) of article 3 of the Homelessness (Priority Need for Accommodation) (England) Order 2002. In fact, as shown by a email dated 13 March 2007, the accommodation at Wayside was not provided by Tandridge. Wayside in an independent specialist provider of housing for vulnerable young women, such as J. I have accepted the evidence in that email notwithstanding Mr Wise’s objections to my doing so, since there is no reason to doubt its accuracy.

The assessments

[57]Mr Wise criticised the assessments as being descriptive, of insufficiently assessing need, of failing to look forward, and of failing to plan for meeting J’s needs in all required areas.

[58]It is unnecessary to consider the Initial Assessment, which was overtaken by the Core Assessment.

[59]I have to say that I consider Mr Wise’s criticisms to be well-founded. As I have already indicated, the basis for the conclusion that J could be suitably accommodated by the Homeless Persons Team is wholly unclear, and the conclusion difficult to understand in any event. In relation to her development needs and strengths, the Core Assessment referred to her wish to attend college and pursue a career working with children, but made no comment on the practicality of that ambition. That section concluded:

“It is unclear how (J) will manage in the community without the boundaries, support and guidance she has received over the past nine months.”

However, nothing was said as to any plan to assist her to manage in the community. At page 29, the Core Assessment stated:

“The overall aim of the plan is for (J) to receive appropriate support and guidance from the Youth Offending Team. The Team will arrange for the accommodation officer to meet (J) at the point of her release and take her to appropriate Homeless Persons Team for accommodation. …”

This was vague and unsubstantiated. I do not find in the Assessment “a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review” (see the Framework for the Assessment of Children in Need and their Families at paragraph 4.1). Figure 7 in the Framework guidance lists the areas in which clarity is required, and show that specificity is required that is lacking in this Core Assessment.

Conclusion

[60]There will be a declaration that the Defendant failed to carry out a lawful assessment of J’s needs as required by the Act and the guidance issued under it. J will have liberty to apply in writing or in court if a further assessment is not carried out, by Sutton or by Surrey County Council, which is the social services authority for the area where she now resides, within a reasonable time, which should not exceed 28 working days from the date of this judgment.

[61]Sutton’s admission that it owed a section 20 duty meant that J was bound to come to court, and as Mr Bellamy recognised that must be reflected in costs. I should otherwise have made no order as to costs. Having regard to that matter, however, I shall order Sutton will pay 50 per cent of J’s costs to be determined by detailed assessment. J will have the usual order for detailed assessment of her costs. Given the difficult arguments as to the application of section 20, as I indicated during the hearing, I shall give J permission to appeal.

Cited in 14 later judgments

and 5 more of the most senior