M, R (on the application of) v Birmingham City Council [2008] EWHC 1863 (Admin)

[2008] EWHC 1863 (Admin)Case No CO/9496/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/09/2008
Before
THE HONOURABLE MR JUSTICE CHARLES
THE QUEEN
Between
On the application of MClaimantBIRMINGHAM CITY COUNCILDefendant
Kate Markus (instructed by Public Law Solicitors) for ClaimantNicholas O’Brien (instructed The Council’s Legal Department) for Defendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)Hearing Hearing dates: 7 and 8 July 2008
Judgment

Charles J :

[1]The Claimant challenges the policy of the Defendant relating to the payment of residence order allowances and alternatively the application of that policy and the decision made by the Defendant to refuse to pay him that allowance.

Most relevant statutory provisions and comment

[2]Paragraph 15 of Schedule 1 to the Children Act 1989 (which is incorporated by s. 15(1) of that Act which is in Part II) provides:
“15(1) Where a child lives, or is to live, with a person as the result of a residence order, the local authority may make contributions to that person towards the cost of the accommodation and maintenance of the child. (2) Sub-paragraph (1) does not apply where the person with whom the child lives, or is to live, is a parent of the child or the husband or wife or civil partner of a parent of the child”
[3]It is apparent that this is a discretionary power and no guidance is given in the paragraph as to what factors are to be taken into account in exercising it.[4]The power is found in Schedule 1, rather than in Schedule 2 which is directed to the support given by local authorities to children and families. In Schedule 1 it follows provisions relating to financial relief from family members. So, within the Act, it is isolated from other provisions relating to financial support to be given, or that may be given, by local authorities. Also in contrast to many of such powers or duties of local authorities there is no guidance issued under the Children Act 1989 or s. 7 Local Authority Social Services Act 1970 relating to residence order allowances. The Department for Children, Schools and Families through the policy “Every Child Matters” summarises the position as follows: “ Residence order allowance Some local authorities support families who have a residence order in respect of the child that they are looking after. This type of allowance is generally a contribution towards the cost of accommodating and maintaining the child. Services and payments are provided once an assessment of need has been carried out, usually after a request for an assessment from the child’s carer. There is no obligation for a local authority to pay a residence order allowance. They are payable at the discretion of the local authority. Friends and family carers can contact their local authority for further information. If you are a practitioner it may be useful to know whether your authority provides the support.” (I note that this refers to an assessment of need.)[5]I therefore accept that the position in respect of residence order allowances is different from those relating to financial support provided by local authorities to adopted children, fostered children and children who are subject to special guardianship.

The approach at public law

[6]No statutory power is unfettered or arbitrary. This is because it has to be exercised to further its underlying purpose. It is that purpose that sets the parameters of the power and thus the factors that are to be, and may be, taken into account in exercising it. The power must be used to advance the underlying statutory purpose for which it was given (Padfield v MAFF [1968] AC 997). If that is not done the exercise of the power iS unlawful.[7]Next the exercise of the discretion can be unlawful if the decision maker, having correctly identified the underlying purpose, nonetheless errs for example by acting unfairly in exercising the discretion or by failing to take into account all matters that by law he has an obligation to consider and only relevant considerations.[8]Also, if the relevant decision maker correctly identifies the underlying purpose and takes the correct approach in law by posing the correct questions and having regard to the relevant factors etc., the exercise of the power will be unlawful if the decision is irrational as being outside the range open to a reasonable decision maker taking the correct approach in law (see for example Huang v Home Secretary [2006] QB at paragraph 28 of the judgment of Laws LJ).[9]Logically an irrationality argument comes after one based on a decision being outside the relevant statutory purpose, or on it being made without having regard to all and only relevant factors. Although the process can sometimes be short circuited by an argument that a decision is so obviously outside the ambit of the underlying purpose that it would be irrational if the decision maker had correctly identified the underlying purpose and taken the correct approach in law. In such a situation a possible alternative (and an approach taken in some old cases) is to conclude that the decision maker must have erred in law.[10]This approach at public law applies to decisions setting policy, and decisions applying a policy (see for example R(R and L) v Manchester City Council [2002] 1 FLR 43 at paragraph 68).[11]To my mind it is generally helpful to remember and address this progression within, or those elements of, a public law challenge on the basis of the Wednesbury test.

The basis of the claim

[12]At the end of her submissions counsel for the Claimant confirmed that her primary argument was that the on its true construction the policy set by the Defendant was lawful, but the decision made by reference to it was unlawful.[13]Her alternative argument was that if the policy had the meaning and effect contended for by the Defendant it, or an undefined part of it, was unlawful.[14]This reversed her approach in writing.

The defence

[15]The Defendant asserted that its policy and its application of that policy in this case were lawful. It however recognised that its initial consideration of the Claimant’s application was flawed. On it the Defendant failed to correctly identify its own policy, which is not an auspicious start.[16]This led to a reconsideration in which the Claimant’s request for the payment of a residence allowance was refused and an internal appeal which upheld that refusal. It is the decisions on that reconsideration and appeal that are the subject to this judicial review.

The underlying statutory purpose

[17]There is no direct guidance as to the relevant underlying purpose equivalent to that given by, for example, s. 1 Children Act 1989. It is therefore necessary to look more widely at the roles of a local authority under the Children Act 1989 and in particular its role relating to children who become the subject of residence orders in favour of a non parent. This involves looking at the roles of a local authority before and after such a residence order is made and the effect the making of such an order has on it, including the financial effect.[18]It is clear that in a number of such cases the making of a residence order will relieve the local authority of obligations to provide accommodation and maintenance for a child and thus of financial (and other) obligations. For example this will occur when a child ceases to be accommodated under s. 23(2) as a foster child and becomes a child subject to a residence order in favour of the foster carer, or a different person. More generally this occurs when a child ceases to be a child who is “looked after by the local authority” (see s. 22(1)) and becomes the subject of a residence order.[19]It could also occur when a child has never been looked after by a local authority but would have been if a residence order had not been made, or if there had not been a family placement (followed by a residence order).[20]It is thus apparent that the power could be used in such situations.[21]More generally the fundamental underlying aim of the Children Act and the relevant parts of the European Convention on Human Rights is to promote the welfare of children and to do this an underlying aim and approach is to seek to keep, rehabilitate or reunite children with their parents and if that would not best promote their welfare then to try to place them with other members of their families (see for example ss. 17, 20, 22 and 23(6) Children Act, Re P, C and S v UK [2002] 2 FLR 631 in particular at paragraph 118, Re C & B (Care[22]If a child is placed as a foster child with a relative or friend of the family a change to a residence order is governed by the paramountcy test in s. 1.[23]Additionally having regard to the scheme of the Children Act, Article 8 and the role of local authorities, there will be a number of cases in which, rather than a child ever being “looked after by a local authority”, or even being the subject of work done, or investigation, by a local authority, he or she lives with a family member (who is not his or her parent or a spouse or civil partner of that parent) pursuant to a residence order, or when a family arrangement is replaced by a residence order.[24]If the proceedings for a residence order in favour of such a family member were disputed by the parent(s) of the child, it is likely that any decision of the court would be based on an effective conclusion that the criteria set out in s. 31 Children Act 1989 were satisfied in respect of the parent(s) and therefore that the parent(s) should be ruled out as person(s) who could provide the child with a home. This flows from the underlying aim to keep families together and the direct blood tie between parent(s) and child. But it may not apply (or apply fully) in all cases, for example a private law dispute between a mother and her ex partner (who is not a civil partner) who has looked after a child with her as if it was his child.[25]If the residence order application is not disputed the court would not have to reach such views about the parent(s) and could base its decision on the view that the parents are not opposing the application, the home offered by the applicant for a residence order is good (or good enough) and there was no sensible need to involve the local authority (via ss. 7 or 37 Children Act 1989).

The making and formulation of a policy

[26]The Defendant has a policy and therefore this case does not raise issues as to what the position would be if a local authority did not have one, or has a different one. The issues are directed to the meaning and effect of the policy, whether it is lawful and thus its proper application if it is a lawful policy.[27]To my mind the points made above found the following conclusions as to the underlying purpose of the discretionary power and thus factors that must be taken into account in formulating a policy concerning the payment of residence order allowances (and then applying it): i) Generally and obviously it is a power to enable local authorities to provide the support referred to in the circumstances referred to. ii) In exercising that power the local authority must do so in furtherance of the fundamental underlying aim of the Children Act 1989 to promote the welfare of children and should have regard to aims and approach referred to in paragraph 21 hereof.[28]The power is expressed in general terms and in my view the matters that a local authority must take into account in setting a policy and applying it are limited to those general underlying aims and approach. But the points made above also show that the following matters / factors can be taken into account in the formulation and application of a policy relating to the payment of residence order allowances: i) The circumstances in which, and the background against which, a residence order is made. In some cases those circumstances and background will found the conclusion that it should be considered whether or not make a residence order allowance and in others they will not. ii) If they trigger a consideration of whether or not a residence order allowance should be paid a range of further factors could be taken into account. iii) The decision to pay a residence order allowance need not be divided into those steps but they represent a logical and permissible progression although there may be overlap between the two and in some cases a degree of artificiality in dividing them up. iv) A proper application of its resources by the local authority. v) Amongst the factors that could be considered in a two stage or one stage approach are: a) the needs and means of the relevant family members and in particular of the relevant child and carers, b) what the local authority would have been obliged to do in respect of the child if the child had not been the subject of the residence order, and so any financial and other savings of the local authority, c) the point that the power to make the payment is distinct from the benefits system, and the local authority is not a governmental benefits agency or in this context carrying out a function as a part of the benefits system, d) having regard to the aim of finding a family placement, based on the view that this is likely to best promote the welfare of the child, the effect of any policy or decision on the promotion and achievement of that aim.[29]It follows that competing, or potentially competing, factors are relevant and a balance needs to be struck as to their inclusion in the policy and their application. There is room for different decision makers to reach different lawful conclusions on the policy to be adopted.[30]By the end of the argument, in my view correctly, it was accepted on behalf of the Claimant that(a) the means and needs of the relevant persons, and(b) the proper application of resources, were matters that could lawfully be taken into account by a local authority in deciding whether or not to make a payment or a residence order allowance. As appears later, what was argued was that on its true construction parts of the Defendant’s policy precluded it from doing so.

The policy of the Defendant

[31]The policy document contains the following provisions: “1. LAW 1.1 Under the Children Act 1989, local authorities have a discretionary power to make payments towards the cost of maintenance and accommodation of a child who is the subject of a residence order ------------------ 2. EFFECT AND SCOPE OF THE SCHEME2.1 The Department may pay a residence order allowance if, and only if, the order places the child in the care of a person who is not his/her parent or step parent.2.2 The criteria which must be met before the Department will consider paying residence order allowance are: * The child has been looked after by the Department for a period of at least three months, or for periods totalling at least three months during the previous three years, and the residence order application is part of his/her care plan: or * The child was looked after by the Department for more than three months and the court has granted a residence order on an application which was made without departmental support; or * The residence order was made during care proceedings, or the application was made as a direct alternative to care proceedings, whether or not the Department looked after the child for more than three months; or * Following an assessment of the circumstances of the child and carer, the operations manager agrees that the case is exceptional.2.3 The applicant may live within the city or outside, but must live in the United Kingdom -----------------2.4 All residence order allowances will be the subject of written agreement between the Department and the carers ----------- 3 AMOUNT OF THE ALLOWANCE3.1 The weekly amount for a residence order allowance is calculated by subtracting the rate of child benefit claimable for the child from the maintenance allowance for a foster child of the same age.3.2 While the Department is paying a residence order allowance, the person caring for the child may claim child benefit. If the carer claims income support and certain other means tested benefits, no benefit will be paid in respect of the child, but the amount of the residence order allowance will not be taken into consideration in calculating his/her income. 4. ------------------- 5. APPLICATION FOR AN ALLOWANCE5.1 The most common situation in which the possibility of a residence order allowance will arise is kinship care. In all kinship care arrangements the child’s social worker should keep this possibility constantly in mind and ensure that it is regularly considered at reviews.5.2 ---------------5.3 If any carer wishes to consider applying for an allowance, the social worker should give her/him a copy of the Department’s leaflet on residence order allowances (at the time of writing this leaflet had not yet been produced) and inform her/him that: * Payment of an allowance will stop if the residence order is no longer in force. ------------- * Residence order allowances affect eligibility for certain welfare benefits (e.g. Income Support) -----------5.4 If the application is to be made on the grounds that the circumstances are exceptional, the social worker will discuss the situation with the operations manager, who will give instructions as to what assessment is to be carried out. Examples of this might include: * A child who was looked after for a period which was less than three months because of the intervention of the current carer; * A carer who has been receiving a residence order allowance from another local authority moves into the city, and the allowance under the other local authority’s scheme ceases; * There is already a residence order in force: the carer was not eligible under the previous scheme but would have been eligible under the current scheme; or * There is already a residence order in force: at the time it was made the child was in need of protection, and the order was an alternative to involving this Department and the likely initiation of care proceedings.5.5 If the child is currently being looked after by the Department, the suggestion that a residence order may be in his/her best interests must be considered at a review. If the review decision is not to proceed with the suggestion, the social worker will inform the applicant that the Department opposes the suggestion of a residence order and has made no decision about an allowance.5.6 At any stage in the decision making process, the Department may conclude that an application for a residence order is not in the interests of the child's welfare, while the child’s carer or a relative or friend may come to the opposite conclusion. In this situation the Department will not consent to any application for a residence order and, if its consent is not required, may oppose any application. However, if the court makes a residence order, and the child’s carer then applies for an allowance, this will be dealt with as if the Department had agreed with the application. This should be made clear to the applicant at the time when the disagreement becomes clear.5.7 ---------------------- 6. APPROVAL OF ALLOWANCE6.1 The social worker will request approval from the operations manager, who will require the following information: * The name and address of the applicant, * The name and date of birth of the child, * Either: * confirmation that the child has been looked after by this Department for more than three months, and that the care plan is for a residence order application by these carers, or * confirmation that the child has been looked after by this Department for more than three months and the court has made a residence order, or * confirmation that the Department has initiated care proceedings and the court is likely to consider, or has made, a residence order, or * confirmation that it would be appropriate to initiate care proceedings, but the carers are willing to make an application for a residence order, or * the reasons why the circumstances are exceptional, and the outcome of the assessment carried out on the operations manager's instructions.6.2 If the operations manager feels that an allowance should not be paid, the team manager/children and families will write to the applicant to inform her/him that the application is refused. This letter must give reasons for this decision, and state that she/he may appeal against this decision by writing, within 28 days, to the Area Head of Children's Services.6.3 If the operations manager agrees that an allowance should be paid, ---------------- 7. APPEAL7.1 Residence order allowances under the scheme are based on fostering maintenance rates. There is no right of appeal against the amount of the allowance offered.7.2 Applicants may appeal against a decision not to allow an allowance.” * The child has been looked after by the Department for a period of at least three months, or for periods totalling at least three months during the previous three years, and the residence order application is part of his/her care plan: or * The child was looked after by the Department for more than three months and the court has granted a residence order on an application which was made without departmental support; or * The residence order was made during care proceedings, or the application was made as a direct alternative to care proceedings, whether or not the Department looked after the child for more than three months; or * Following an assessment of the circumstances of the child and carer, the operations manager agrees that the case is exceptional. * Payment of an allowance will stop if the residence order is no longer in force. ------------- * Residence order allowances affect eligibility for certain welfare benefits (e.g. Income Support) ----------- * A child who was looked after for a period which was less than three months because of the intervention of the current carer; * A carer who has been receiving a residence order allowance from another local authority moves into the city, and the allowance under the other local authority’s scheme ceases; * There is already a residence order in force: the carer was not eligible under the previous scheme but would have been eligible under the current scheme; or * There is already a residence order in force: at the time it was made the child was in need of protection, and the order was an alternative to involving this Department and the likely initiation of care proceedings. * The name and address of the applicant, * The name and date of birth of the child, * Either: * confirmation that the child has been looked after by this Department for more than three months, and that the care plan is for a residence order application by these carers, or * confirmation that the child has been looked after by this Department for more than three months and the court has made a residence order, or * confirmation that the Department has initiated care proceedings and the court is likely to consider, or has made, a residence order, or * confirmation that it would be appropriate to initiate care proceedings, but the carers are willing to make an application for a residence order, or * the reasons why the circumstances are exceptional, and the outcome of the assessment carried out on the operations manager's instructions.

Generally the meaning and effect of the policy

[32]In determining whether it is lawful and its proper application, a first step is to consider what the policy provides.[33]I agree that it should not be approached as a statute. Further I accept that a number of interpretations are open by reference to the breadth of meaning of its language and its structure. The linkage between parts of it and how they are interpreted and applied is relevant to whether the policy implements the underlying statutory purpose. For example the approach to the last two bullet points in paragraph 2.2 is relevant in that a narrow or strict approach to the first, or to how it is to be evidenced, may be linked to a wider approach to the second. This also links to the examples given in 5.4. This is an important consideration in this case.[34]To my mind it is also important to note that the examples in 5.4 are expressly stated to be examples. So the policy envisages the possibility of other situations that might be treated as “exceptional”. In determining what those other circumstances might be regard should be had to(i) the examples given,(ii) the policy as a whole and(iii) the underlying statutory purpose.[35]Standing back a broad overview of the policy, and thus its overall approach, shows that it:(a) introduces triggers to the consideration of whether the allowance will be paid and then a fall back approach if those triggers are not satisfied, and it(b) links cases in which the payment of the allowance will be considered to cases in which, but for the child being cared for by a member of his or her family, the local authority would have been under a duty to provide accommodation and maintenance for the child.[36]Point (a) flows in particular from a comparison between the first three categories in 2.2 and the examples given in 5.4. In considering those examples and generally the fall back approach of the exceptional case, it should be remembered that the examples refer to cases when the child has been “looked after” by the local authority for a shorter period as well as one relating to a case in which a residence order was made as an alternative to involving the Defendant and the likely initiation of care proceedings. The examples therefore expressly envisage that the exceptional case will cover something along the lines of, but short of, the earlier triggers.[37]Point (b) flows clearly from the triggers themselves and the calculation of the amount of the allowance by reference to fostering maintenance rates.[38]Points (a) and (b) also demonstrate that the underlying thinking and approach of the policy has the following ingredients: i) the fall back approach will cover and catch cases that are close to, or have equivalent ingredients to, the earlier triggers and thus “near miss cases” (e.g. a case when the child has been “looked after” for less that 3 months or the residence order was not made as a direct alternative to care proceedings, but was an alternative to involving the Defendant and the likely initiation of care proceedings), ii) the change in position of the Defendant and thus the saving to the Defendant resulting from a residence order being made, is a relevant factor, and therefore iii) the consideration of whether a case is exceptional is based on a “but for” or “what if” approach by reference to the two preceding points. So the decision maker should consider whether the case is covered by one of the examples given and if not how close it is to those examples (and thus also the first three categories in 2.2) by reference to both(a) the reasons for and the background to making the residence order, and(b) its effects on the likely position of the local authority if a residence order was not made.[39]The combination of these factors means that it is difficult to see why in a case that is a near miss (e.g. when a child has been looked after for say 2 months rather than 3 months) other factors such as means and needs should lead to a different result to the result when one of the first three criteria is satisfied.[40]Further, an approach that in a near miss case other factors should not lead to a different result is also supported by an appreciation and proper application of the underlying point that the policy should promote children living with members of their family and therefore not hinder or discourage this, or place technical hurdles in its path. So, again by way of example, it would be strange and contrary to that underlying purpose if a placement with a family member was delayed until the child had been looked after by the local authority for 3 months to warrant the payment of a residence order allowance when an appropriate family placement (followed by a residence order) was available much sooner. A similar example can be given by reference to a residence order being an alternative to a care order.[41]In my view on its true interpretation the policy does not have this effect but provides for a pragmatic “but for” and “what if” approach by reference to points (a) and (b), and one under which in a near miss case applying that approach (by reference to one or both of those points) leads to the same application of other factors (e.g. means, needs and the local authority’s resources) to the decision whether a residence order allowance should be paid.

The lawfulness of the policy

[42]On that interpretation of the policy the main point in the argument that it is unlawful, namely that it discourages in an artificial, strict and irrational way placements with families, does not exist.[43]In my view it is a lawful policy in that it has proper regard to the matters that must be take into account in formulating it, includes only relevant matters and does not include irrelevant matters.

Other interpretation points on the policy

[44]The Claimant argued that on its true interpretation the policy gave an applicant an entitlement to an allowance if any of the first three triggers in 2.2 were satisfied. As appears earlier in my view an overall approach to the policy does not support that conclusion.[45]Further this assertion is contrary to the language used which refers to the criteria that must be met before the Department will “consider” paying an allowance.[46]Next paragraph 6 makes the operations manager the decision maker as to whether or not an allowance should be paid (subject to appeal) when that officer has the information referred to in 6.1. That information relates to all the triggers in 2.2 including the “exceptional case”. Further the obligation to give reasons in 6.2 is in general terms, although I accept that the reasons would be limited to the matters that were taken into account.[47]So in my view there is nothing in the language of paragraph 6, which relates to approval, and thus the decision making process, that limits the matters the operations manager can consider in respect of the satisfaction of the triggers whether or not the case is within the first three categories or the exceptional category.[48]It was argued that as the policy does not provide for the production of any other information to the decision maker in respect of the first three triggers nothing else can be taken into account in respect of them and therefore, if the trigger is satisfied, an entitlement arises. In that context it was said that it was only in “exceptional cases” that there is provision for the operations manager to call for further information (see 5.4) and therefore as I understood it that(a) in such a case the operations manager could call for information not mentioned in the policy and therefore exercise a wider discretion taking those matters into account in deciding whether or not to agree to the payment of an allowance, and(b) this flexibility, in these limited circumstances, saved the policy from attack on the basis that it was too rigid and thereby fettered the exercise of the statutory discretion.[49]I do not accept this argument. First I do not accept that a fair reading of the policy means that it is only in the exceptional case that the operations manager can call for, or consider, further factors e.g. means, needs and resources which it was accepted could be considered at the exceptional stage. Next if such matters can be considered at the exceptional stage, on the basis that leaving them out of account the trigger would be satisfied (e.g. because one of the examples listed in 5.4 was satisfied), it would be odd if they could not be considered in all cases, particularly as it is common ground that this would be within the statutory purpose. The argument relating to decisions based on undefined matters being arbitrary and so unlawful cannot in my view properly be confined to the first three categories.[50]The absence of provisions in the policy as to what factors should or can be considered over and above identified ones relating to a trigger for the consideration of a payment, or in respect of the decision to pay, does not mean that the decision maker can act in an arbitrary manner when exercising the statutory discretion. Rather that discretion (which cannot be improperly fettered) is governed by public law principles.[51]In short the argument returns to one of construction of the policy and the application of public law principles.[52]In that context, given the well known budgetary problems of local authorities and the considerable demands on their budgets for supporting children, it seems to me that it would be remarkable if the local authority had intended to preclude itself from taking into account the means and needs of the family and by reference thereto the application of its limited resources when exercising this discretionary power. In my view it has not done so in respect of all the categories referred to in the policy.[53]It was indicated (although the evidence was not directed to this) that as a matter of practice if the first three triggers set out in 2.2 are found to be satisfied the allowance is paid. (It was not raised whether this was the case if it was found that one of the stated examples of exceptional cases was satisfied). To my mind this position on the ground is not surprising because it is likely that in most cases other issues (e.g. means) will not arise and it does not mean that a different construction should be given to the policy.[54]However in my view such a practice is something that provides an indication (in line with the views I have expressed earlier) as to how the discretion has to be exercised to promote the policy, namely that it should be unusual to refuse payment on financial grounds in a “near miss” exceptional case.[55]The practice (if it exists) therefore reflects a lawful approach that has regard to the points that(a) the local authority is not a benefits agency or in this context carrying out a function as a part of the benefits system, but(b) it does have a duty to promote family placements and when one occurs under a residence order this can result in financial and other savings for the local authority.[56]Before turning to the facts and decisions in this case and the arguments as to the interpretation and application of the last two categories in 2.2, I mention one further point on the policy. It is that in my view the same approach and test cannot be taken to the third category in 2.2 and the fourth example in 5.4. Generally this is because the latter is an example of when there might be an exceptional case and thus something different from the former. It also flows from the different language used which introduces different degrees of connection.[57]So the exceptional category has to be considered separately and by the application of a different test to the non exceptional categories.

The facts

[58]The relevant child (the child) is a young girl who was born on 6 January 2000. She has lived with her uncle, the Claimant, since August 2002, when the child was approximately 2 1/2 years old. The Claimant was born in July 1979, at present he is dependent on benefits.[59]The child's mother and her partner lived in Birmingham. They were heroin users. In May 2001 the Defendant’s social services department became involved in the lives of the child, her mother and her mother's partner (who is not the child's father). This followed a report by the child's maternal grandfather because of the family’s concerns about the child's welfare. A package of help followed including childminding and a rehabilitation programme for her mother.[60]A further referral was made by the maternal grandfather in February 2002 and it appears that at this time the mother's health visitor had also noticed that she was missing appointments and the child was not attending the nursery placement which social services had provided for her. In May 2002 the mother took the child to a hostel because of violence from her partner but she returned to him with the child a few weeks later. A CAFCASS report that was prepared for later proceedings records that in July 2002 a social worker produced a report which stated that "the child is not leading a normal life (and is) likely to suffer significant harm due to mother's drug taking habits”.[61]The Claimant’s account is that: i) in July 2002 a social worker in the Defendant local authority gave the mother an ultimatum that unless she stopped taking heroin and moved away from the influence of her partner the Defendant local authority would have no choice but to take the child into local authority care, ii) the Claimant agreed that the mother and child could come and live with him and his girlfriend in Redcar to remove her from the environment in Birmingham where she had been taking drugs and so that she could move away from the influence of her partner, iii) when the mother arrived the Claimant says that she told him she was no longer taking heroin and that she would not take any more drugs. However he found some heroin hidden in the baby’s clothes which upset him and he and his sister ended up having a row, iv) this resulted in her leaving and returning to her partner in Birmingham, v) she asked him whether the child could stay with him and he agreed. This was in August 2002 and for about three weeks he heard nothing from his sister. But she then contacted him and became abusive because he had not sent her any money from cashing in her benefit books (which he had handed in) and threatened that if he did not send her the money she thought he owed her she would come to Redcar and take the child away from him and that there would be nothing that he could do to stop her, vi) a few days later his girlfriend received a threatening telephone call from the mother's partner, vii) in September 2002 he contacted the Defendant local authority and was told by a social worker that they were happy for him to be looking after the child because the alternative was the child being taken into care, but that if the mother went to the police to say that he had taken the child he would have no choice but to return the child to the mother and advised him that the only step he could take to prevent this was to apply to the court for an interim residence order. She also advised him to contact the social services in Redcar for their assistance, viii) he did this but was told that the child was the responsibility of the Defendant local authority, ix) the Claimant then took advice from a solicitor and with his assistance applied for and obtained an interim residence order in the Middlesbrough County Court on 24 October 2002, x) a CAFCASS report was directed and in accordance with the recommendation contained therein a residence order was made in favour of the Claimant on 31 March 2003, xi) the mother took no active part in the proceedings, and xii) in May 2004 the Claimant's relationship with his girlfriend broke down and he returned to Birmingham with the child to be close to other members of his family. On his return he contacted the Defendant’s social services department to see what assistance they could give him. This led to his application for a residence order allowance from the Defendant (an earlier application to Redcar had, I think, been refused).[62]The CAFCASS report contained the following assertion: “[the child's] needs are not being met by her mother and the [Defendant’s] social services were on the point of intervention. They had approved fostering within the family and now that Redcar Social Services have added their endorsement, the Court may confidently grant a Residence Order to [the Claimant]”.[63]I have set out the above as the Claimant’s account. Much of it is accepted but it may be that parts of it are not, or will not be on a reconsideration, and I am not in a position to determine any dispute.[64]It is however plain that the Claimant and his girlfriend took on a considerable responsibility for the child. If he had not done so it seems clear that either(a) (A) the child would have returned to Birmingham with her mother, or(b) (B) social services would have had to become involved.[65]In situation (A) the local authority decisions concerning the welfare of the child would have been taken in Birmingham and thus by the Defendant following the return of mother and child, and on the information before me in my view this is what is most likely to have happened.[66]In situation (B) I accept that Redcar would have had an obligation to do something about the situation of a child being left in its area with a family member who was not willing to provide her with a home. However on the information before me, in my view this was a “Birmingham case” and it was correctly accepted on behalf of the Defendant that it would have become involved in any public law proceedings that were issued. On the information I have it seems to me that the Defendant would have been the designated local authority in any care order resulting from proceedings started by Redcar.

The decisions under challenge

[67]After the false start I have mentioned by a letter dated 11 August 2006 the Defendant wrote to the Claimant's solicitors and notified them that it had decided not to make a residence order allowance. The Claimant appealed that decision. That appeal was supported by written representations. On 6 December 2006 the Defendant wrote to the Claimant's solicitors notifying them that the appeal was refused.[68]The reasons accompanying the letter of 11 August 2006 contain the following: i) [In respect of the third criteria in 2.2]: there is some evidence on the Children's Services File and in the report of the CAFCASS Family Court Welfare Officer that there were increasing concerns about [the child] at the point when she went to live with [the Claimant]. The concerns identified were, no stable home, connected with drug users, missing medical appointments, absence of stimulating environment, poor diet, domestic violence. However at this point the case was still being dealt with as a Section 17 family support and no management decision had been made that the threshold for a Section 47 child protection inquiry had been met. While the social worker was giving consideration to the need for care proceedings, it was still some distance from a decision to implement care proceedings. Following the arrangement for [the child] to live with [the Claimant], she became a child in need within Redcar Social Services and the responsibility for any action would be with Redcar. Therefore the application for a residence order made by the Claimant was not a direct alternative to care proceedings by Birmingham City Council, ii) [In respect of the “exceptional category]: in order to establish whether this case has any unique or unusual features a recent assessment has been carried out. This concluded that while the family were experiencing stresses which applied to many single-parent families on a low income there were no other factors such as disability or psychological issues that would make the situation exceptional. Even if these exceptional circumstances had been present there is no evidence to suggest that the payment of a residence allowance was essential for [the child's] well being, [and the decision was that] iii) the minimum criteria set out in the procedures of Birmingham City Council is not met and I have not identified any exceptional circumstances that would warrant payment of a residence allowance.[69]In my view whether or not the application and interpretation of the third criteria in 2.2 is correct this reasoning and decision demonstrates a clear failure to apply the policy in that: i) it fails to apply the approach described in 5.4 by applying the examples listed to identify the exceptional case and more generally it fails to have regard to the “near miss” approach demonstrated by those examples, and to apply the “but for” and “what if” approach I have described earlier, and ii) it introduces a generalised approach to the exceptional basis for an award by reference to the general position of single parent families.[70]These failures to apply the policy are not identified, addressed and cured on the appeal.[71]On the appeal, as to the application of the third criteria in 2.2 it is said:
“ I have carefully consider the points you have made in respect of this. I have covered further in this appeal decision document, that I consider that the arrangement in respect of applying for the Residence Order in respect of [the child] was a family arrangement, and that this Department had not reached the decision to initiate care proceedings and therefore this Residence Order was not an alternative to involving this Department in and the likely initiation of care proceedings. [The mother] left the [child] in the care of [her] paternal uncle in the area of another local authority, namely Redcar Social Services. I had been advised and believe that the general duty of every local authority is to safeguard and promote the welfare of children within their area who are in need; at the time that the crisis point was reached [the mother] had moved to Redcar with the intention of staying with her brother, taking [the child] with her in order to facilitate their separation from her violent partner. [The mother] and her child altered their residence to Redcar. Although this arrangement did not last very long, the duty pursuant to section 17 of the Children Act 1989 falls upon Redcar and not Birmingham City Counsel and therefore at the time the Residence Order was not made as a direct alternative to Birmingham City Council initiating care proceedings. ”
[72]It is not entirely clear from that passage whether the reasoning of the decision maker is that the fact that the Defendant had not reached a decision to initiate care proceedings was of itself enough or whether it needed to be combined with the other points mentioned. But I shall proceed on the basis (in favour of the Defendant) that those points are part of the reasoning relating to the assessment of whether the case is an exceptional one, although this is not stated.[73]In my view, those additional points contain a number of flaws as to the analysis of the crisis point or points including that they fail to cover the following matters: i) what the most likely result of the Claimant not agreeing to look after the child would have been. As mentioned above my present view is that it is most likely that the child would have returned to Birmingham with her mother, in which case it would have been the Defendant who would have to have taken action, ii) the advice that the Claimant says he was given by a Birmingham social worker (and it seems clear that some such advice was given and that it would have been appropriate) was that he should seek a residence order to avoid the child being taken away by the mother and the risk of the child being taken into care, iii) the view expressed in the CAFCASS report that a family foster placement had been approved by the Defendant, iv) the now accepted point that the Defendant would have been a party to any care proceedings, and v) whether applying a “but for” and “what if” approach between a family placement and public law orders (or the child being provided with accommodation by a local authority) this was a Birmingham case albeit that the child remained in Redcar and therefore that local authority also had responsibilities. To my mind, on the existing information, when the mother left Redcar and up to the making of the interim residence order, it is highly unlikely that the child had become ordinarily resident in Redcar.[74]As to whether this was an exceptional case the decision maker said:
“ In respect of the exceptional circumstances, I concur with Mr Wheeler's decision in respect that this case has no unique or unusual features. I have also studied your letter and the initial assessment of Ms Riley and carefully considered whether this case is exceptional. In reaching my decision that it is not exceptional, I have taken into account [the Claimant’s] own income needs, his budget and his outgoings as detailed in the Assessments. I have considered the other voluntary services that are available to [the Claimant] ---------- [The Claimant’s] situation reflects the situation of a high number of sole carers of children. The principle issue that appears to be present in the case is [the Claimant's] desire to improve the circumstances of himself and the child financially. Although this is a laudable aim, Birmingham City Council is not in the position to supplement the Benefits Agency and the rates set by Central Government as the minimum requirement for a family. The Assessment process identifies no significant behavioural issues save for a concern in May of this year relating to bedwetting. There are no emotional or other psychological issues identified. There are no physical disabilities or mental disabilities identified. --------------- ”
I have considered the other voluntary services that are available to [the Claimant] ---------- There are no physical disabilities or mental disabilities identified. --------------- ”

I have considered the other voluntary services that are available to [the Claimant] ----------

[75]This reasoning, like the decision under appeal, when dealing with the exceptional case fails to refer to and apply the examples given as to when it might apply and effectively adopts and repeats the failures to apply the policy set out in paragraph 69 above. This is so even if the earlier, and flawed, reasoning (absent the point that the Defendant had not taken a decision to initiate care proceedings) is taken into account.[76]These failures include one to recognise the different language used in the relevant example of an exceptional case in 5.4, and in my view constitute serious failures by the decision makers to correctly interpret and apply the Defendant’s policy.

The generalised approach taken

[77]As appears earlier: i) I accept that a residence order allowance is not a substitute or addition for the benefits payable by the Benefits Agency, and that means and needs of the family and the allocation of the resources of the Defendant are all matters that can properly be taken into account in setting and applying the policy. But ii) in my view the generalised approach taken in the decisions by reference only or mainly to such factors in determining whether a case is exceptional and/or a valid reason for differentiating between near miss (exceptional) and other 2.2 cases when making the decision whether or not to pay a residence order allowance, does not accord with the approach taken in and by the policy.[78]I add that it is not clear how the thinking in the decisions marries up with what I understood to be the accepted general approach that if one of the first three criteria in 2.2 is satisfied these arguments are not introduced to refuse payment. The reason that there has to be a decision of the local authority that care proceedings should be taken or would be appropriate unless a family member seeks a residence order before the third criterion in 2.2 is satisfied[79]The Defendant argues that this bright line approach is justified by the language and the proper and sensible administration of the policy.[80]To my mind the second point loses a great deal of its force if: i) as I have found, and the Defendant argued, a finding that this criterion is satisfied does not give rise to an entitlement to payment of a residence order allowance, and ii) in properly applying the exceptional criteria the Defendant should take the approach I have set out and thus one that involves the “but for” and “what if” approach I have described if the case is not covered by one of the examples given. Point (ii) means that in every case in which the bright line approach is not satisfied such an approach has to be taken. So the bright line approach would simply be an obvious example of that “but for” and “what if” approach being satisfied so that the consideration of the payment of a residence order arises.[81]“Direct” is a word that has a breadth of meaning and I accept that it introduces the concept of the alternatives actually having been addressed by the Defendant and the relevant family members, or at least by the local authority. This is supported by the requirement in 6.1 for “confirmation that it would be appropriate to initiate care proceedings, but the carers are willing to make an application for a residence order”. (I pause to note that this is a clear “but for” approach.)[82]This concept would be more clearly the sense in which the word “direct” is used in the policy if the criteria were limited to cases in which the issue of the payment of a residence order allowance had been addressed before the residence order was made. Indeed, if it had been so addressed, it is likely that in relevant cases the Defendant would have made, and told the family of, a decision to commence care proceedings, or that to do so was appropriate if a family member did not apply for a residence order. But it is not so limited, although no doubt often the application of the “direct criterion” will fall to be considered in such a situation.[83]Further there may well be circumstances in which such alternatives had been addressed in less stark terms before the Defendant had made a decision to initiate care proceedings, and certainly before all its normal internal procedures relating to such a decision had been complied with to as to enable it to be said that a “management decision” had been made. In such a situation, in my view, it would be remarkable if an express discussion of the alternatives followed by a residence order did not satisfy this criterion, and in my view it would.[84]In my judgment, therefore the concept and meaning of “direct alternative” as it is used in the policy cannot be limited to include a need for evidence of a decision having made by the local authority that it would be appropriate to initiate care proceedings. This obviates the need to consider what, if any, of the internal procedures and decision making processes concerning such a decision would have to have been gone through before it became a relevant decision or management decision. In any event, as to that I am satisfied that complete compliance with all internal procedures and formalities would not be necessary, and I would be surprised if this was the approach taken under 6.1 if the issue is addressed before the application for a residence order is made.[85]However, in my view, a permissible interpretation of the policy as a whole is that: i) a narrow or strict interpretation of “direct alternative to care proceedings” can be applied together with the approach to the exceptional category I have described, and that ii) that narrow or strict interpretation is that either(a) representatives of the Defendant had told the relevant family member that if an application for a residence order was not made the local authority would issue care proceedings, and the application for a residence order was made against that background to avoid care proceedings, or(b) the application for the residence order was made at a time when the relevant social workers had in fact concluded that the stage had been reached that the only realistic alternatives were the initiation of care proceedings or the relevant family member applying for a residence order.[86]I accept that that narrow or strict alternative comes close to the stance taken by the Defendant but it does not depend on the performance by the Defendant of its internal formalities and decision making processes relating to the initiation of care proceedings.[87]I accept that on the information before me it is at least arguable that that narrow or strict approach was not satisfied.[88]But as I have said such a narrow or strict approach would only be a first step in applying the policy. The next stage involves the application of the examples given in 5.4, the taking of the “but for” and “what if” approach I have described and the consideration of other permissible factors (e.g. means and needs).[89]At that stage the Defendant should look at the reality of the situation and not be driven by its internal procedures, or the “dotting of Is and the crossing of Ts” particularly if that has, or would tend to have, the effect of discouraging or delaying family placements pursuant to residence orders as the alternative to the child being a child “looked after by the Defendant local authority”. As appears earlier this flows from a proper recognition of the underlying purposes of the power.

Conclusion and relief

[90]For the reasons I have given, in my judgment the policy is lawful but its application was flawed and the decisions of the Defendant not to pay a residence order allowance to the Clamant were unlawful. I therefore quash all such decisions.[91]In argument, but not in his claim form, the Claimant asked that I order the Defendant to pay him a residence order allowance. In my view the failure of the Claimant to seek such relief was at least a contributory factor to the Defendant not putting in evidence and in those circumstances it would be wrong for me to proceed (as I was urged to do) on the basis of the Claimant’s evidence. I have reached this view although, as will be apparent from what I have said, I accept that by reference to the apparently undisputed elements of the Claimant’s account, he has, on the correct application of the policy, a strong case for the payment of a residence order allowance.[92]I therefore remit the Claimant’s application for re-determination.[93]The Claimant sought damages by reference to the residence order allowance that would have been paid to him if the Defendant had not refused his application. The Defendant acknowledged that if on a re-determination it decided that the Claimant is entitled to payment of a residence order allowance it would make such back payments. In those circumstances I adjourn the claim for damages with liberty to restore it if the Claimant is so advised (for example if there is a future challenge to a decision not to pay the residence order allowance but also for any other reason).

Order

Future Harm)[2001] 1 FLR 611 in particular at 33 and 34 of the judgment of Hale LJ and of course Article 8 which creates positive obligations). The approach to be taken by a local authority in pursuance of its duties and the exercise of its powers must have regard to these aims and approach.

Cited in 1 later judgment