COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Mr JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE SMITH
LORD JUSTICE RICHARDS
| THE QUEEN ON THE APPLICATIN OF R.O.
(by his litigation friend and step father Andrew Burton)
|- and -
|EAST RIDING OF YORKSHIRE COUNCIL
- and -
SECRETARY OF STATE FOR EDUCATION
Mr Stephen Bellamy QC and Ms Sally Gore (instructed by Legal and Democratic Services) for the Respondent
Mr Clive Sheldon (instructed by Department for Education ) for the Intervener
Hearing dates : Monday 15th & Tuesday 16th November 2010
and supplemental written submissions dated 23rd November and 6th December 2010
Crown Copyright ©
Lord Justice Rix :
The critical facts
"The Authority should accommodate the Claimant immediately under s 20 Children Act 1989 in a suitable residential educational placement to support his social care needs, and special educational needs, and ensure his safety and that of other family members."
Secondly, they applied for a statutory reassessment of RO's special educational needs, a request which the council received on 8 July 2008.
"1. The Claimant is a vulnerable 12 year old boy with complex needs manifested in diagnosed severe child autism co-morbid with severe ADHD. He is currently living with his mother, stepfather and four siblings. He is known to the Defendant social services for his needs. He has been reported as having an obsession with fire, having set his family home on fire twice, including under his brother's bed. He has attempted to simulate sex with his younger sisters, masturbated in front of them, showed his family his penis, and wiped excrement on the walls of the house. He also absconds/runs away from the family home on virtually a daily basis, leaving in the morning and coming home late at night and has been known to steal from local shops and threaten people with knives. The Defendant has known since at least January 2008 that the support and accommodation provided to the Claimant and his family is not sufficient. The Defendant's own care plan independent reviewing officer stated the urgent need for a full-time specialist residential placement to be located for the Claimant, particularly one that is skilled and experienced in dealing with children such as the Claimant, who have severe autism and ADHD."
The description of RO's behaviour in that passage is supported by the mother's first witness statement dated 27 July 2009, and by Dr Rasool's report (see at  –  below) where she sets out in her own words what the mother had told her of RO's history when he had been under her care at West End .
" …Wyn Williams J made an order for the Council to accommodate the claimant full-time. The Croft, a children's home, was identified as suitable temporary accommodation for the claimant. During the period residing at The Croft the claimant was to attend Farrow House School.
 When the claimant visited The Croft with his mother he refused to get out of the car. In the discussions with the social worker which followed the mother and step-father expressed distress and dissatisfaction at the claimant being accommodated full-time at The Croft and said that their concern was to obtain the right educational provision for the claimant. Ultimately they agreed to The Croft as they believed that it was the only way to get what they wanted, namely a suitable residential school for the claimant."
"and pending the Claimant's placement at a 52 week residential school the Defendant shall continue to provide the Claimant with full time accommodation, whether at The Croft or otherwise, and education at Farrow House as under the current arrangements."
"I asked the parents to explain how [RO's] behaviour had been since he was discharged, and as I expected nothing had changed, [RO] remained as difficult and challenging within the family home as before once he stopped attending Hornsea school. He was again out roaming the streets of Hornsea with neither parent able to manage or control him, he had taken to running or jumping out of the windows if he was stopped from leaving the home. Mother was aware that he was meeting with older boys and he often came home with rude messages and images on the phone and sexualised songs, etc. None of his odd, eccentric and inappropriate ways of interacting had changed, which one would not expect to, given the pervasive nature of his difficulties…"
"It is my opinion that given [RO's] complex needs and the degree of support and supervision that he is going to require, [RO] needs to be educated in a Residential Therapeutic Special School. The teaching staff teaching [RO] would have to be trained in the management and teaching of children on the Autistic Spectrum and those who have other comorbid disorders, like ADHD, which makes their behaviours even more challenging. At the same time, he needs to be looked after at the same site by Social Care staff that have continuous links with the staff who educate him and who also understand and are able to work with children on the Autistic Spectrum. The need for a residential placement therefore is as much a social care need and responsibility as an educational one and this is a case where joint funding between the Social Services and the Education Department would be entirely appropriate. Without his social needs being met appropriately any educational placement would be unlikely to be successful."
"69. In conclusion, it is my opinion that [RO's] need for a residential placement is as much a social care need and responsibility as an educational one and one for which joint funding would be entirely appropriate. Without his social care needs being appropriately met any educational placement would be unlikely to be successful. [RO] urgently requires the stability and security of a consistent environment which is able to address and meet both."
"[RO] is a young man with specific needs. Both Dr Rasool's report and the Statement of Special Educational Needs recognise the need the need for a specialised placement on educational and psycho/social grounds.
If [RO] were provided with an appropriate placement, of a 52 week a year nature, he should maintain contact with his family by returning to their care at weekends and during the planned holiday periods.
[RO's] family may benefit from support in parenting [RO] by involvement in a strong team approach involving the family and professionals, social services, education and health, in regular multi-professional meetings. The allocation of a specialist social worker, with knowledge and experience of working with Autism might have the opportunity of developing a trusting relationship with the family."
"8. [RO's] assessed need is for a 52 week residential educational placement at a school which caters for children with Autistic spectrum disorders. The provision identified by [the parents] is that of Horton House School. It is envisaged that the school and residential provision will be able to provide [RO] with the stability and consisten[cy] that he requires within a safe environment…"
"[RO] was accommodated under section 20(4) Children Act 1989 with Respite Foster Care at a rate of one weekend per month. This was later increased to two weekends a month.
[RO] was accommodated under Section 20(4) Children Act 1989 on 3rd September 2008 at The Croft Residential Unit from Sunday evening to Friday evening every week…
In accordance with parental wishes [RO] will return home for the Christmas period from 19th December 2008 to 4th January 2009. However, the placement at The Croft will remain available during this period for respite should [RO] require it. [RO's] placement at The Croft will also be available after the Christmas break until he commences a full-time residential educational placement in accordance with his statement of special educational needs.
Question 4 asked for an indication of the "legal basis for current work". The answer given was as follows:
"[RO] is currently accommodated under S20(4) Children Act as ordered at the Administrative Court by Mr Justice Wyn Williams on 26th August 2008. Prior to this [RO] was in receipt of respite foster care under section 20(4) of the Act."
"[RO] is currently a looked after child in accordance with his assessed need for respite care (core assessments dated 23rd January 2007 and the core assessment started on 17th [June] 2008, a draft of which was distributed at court on 26th August 2008) and the subsequent orders of the Administrative Court for accommodation on a full-time basis.
On 19th November 2008 it was ordered by the Administrative Court that [RO] remain accommodated under section 20(4) of the Children Act 1989 until he is able to start an appropriate educational provision in accordance with his revised statement of special educational needs.
Horton House School has been identified by the parents and has been agreed by education and the DCSF as a suitable placement. Upon commencement of that placement, which is envisaged to start in January 2009, [RO] will cease to be a looked after child under section 20(4) of the Children Act 1989 because the assessment is that his welfare needs will be met by the educational placement under the Education Act 1996."
"The Local Authority has not identified any relatives or close family friends in a position to care for or offer accommodation to [RO]. It has been assessed that [RO] requires a 52-week residential placement that caters for children with autistic spectrum disorders. A placement has been identified in accordance with [RO's] revised statement of special educational needs."
"[RO] will remain in respite accommodation (subject to parental wishes for the Christmas period) until he commences a specialist residential educational placement".
"[RO] is a child in need under section 17 of the Children Act 1989 and requires respite accommodation under Section 20(4) of the Act until he commences a specialist residential educational placement in accordance with his revised statement of special educational needs. The duration of the respite placement is in accordance with the order made by the Administrative Court on 19th November 2008. [RO] will cease to be looked after under the Children Act 1989 upon his admission into a 52-week residential placement, where he will be accommodated under the Education Act."
"(a) [RO] has a psychiatric diagnosis of severe Attention Deficit Hyperactivity Disorder (ADHD) and severe Childhood Autism. These are both pervasive developmental disorders and particularly in relation to his Autism, his significant social and communication difficulties are unlikely to change…
(b) It is assessed that [RO] attend a 52-week Residential Placement that caters for children with Autistic spectrum disorders. Horton House is the provision identified by Robert's family and has been approved by the Education Department…"
"It has been identified that [RO] requires a 52-week residential educational placement that caters for children with autistic spectrum disorders…
"Robert will cease to be looked after under S20(4) of the Children Act 1989 once he starts at Horton House School."
That of cause was not "agreed", because RO was at that time seeking in these proceedings to be accommodated as a looked after child.
"[The parents] would need to liaise with the Education Department in relation to any alterations regarding [RO's] residential placement at Horton House School…"
The outcome of the judicial review proceedings
" …In my judgment, because the claimant is at Horton House, and no longer wants or receives respite accommodation, he is no longer a looked after child. That follows directly from the statutory definition of a looked after child in section 22(1)(b) of the Children Act 1989, a child provided with accommodation in the exercise of its social services functions. Social services functions, as outlined earlier, do not cover accommodation provided as a result of a Statement of Special Educational Needs under the Education Act 1996…
 …A distinguishing feature of these cases is that the children required accommodation because they had nowhere else to live. In this case the claimant did not require accommodation in this sense, other than respite care for his parents. His parents several times confirmed that they were happy with the respite care provided and the issue earlier between them and the Council was whether he should attend a residential school…
 Moreover, in terms of the realities it does not make sense to me to describe what the Council has done as side-stepping their duties. It is significant, as I have said, that the residential school placement was what was sought by the claimant's mother and step-father from the second part of 2007. To suggest that the provision of Horton House is an attempt by the Council to sidestep its obligations is quite contradictory. It is exactly what the family wanted…
 …The test is not whether the claimant needs to be "looked after", but whether he receives accommodation provided by the Council in the exercise of a social service function…
 …Because a child has been accommodated pursuant to section 20 does not mean that any different test should apply to the question whether he or she is to be accommodated under section 20 in the future. Essentially the issue as to whether a child is still a looked after child is whether he or she is accommodated pursuant to section 20 of the Children Act 1989 or is subject to a care order under section 31. The duty to take account of educational needs, section 22(3A), has no bearing on this.
 In January 2009 the Council reached its decision on the claimant's educational needs. It was then duty bound to consider compliance with its other duties, under the Children Act 1989 and otherwise. What had happened previously was that the Council had provided respite accommodation. It was never the case that the claimant required accommodation full time, or that his mother and stepfather could not ever provide it for him. It was known that they had experienced difficulties in caring for him and wished to devote attention to their other children, whom they feared would be neglected. They needed a break from the claimant's care to enable them to cope better. If they took that break with the claimant still in their care, then his welfare might suffer, although this was never their intention. Thus the Council decided that they must provide respite accommodation from time to time to prevent this possibility. But they remained of the view that the family had the capacity to meet the claimant's physical and emotional needs. What they could not provide for was the care and education needed arising out of his autism, which requires specialist residential education.
 By the time the decision was made that the claimant's placement at Horton House was to be under the Education Act, he had been in his family's care full time and not even attending school for the majority of the time, during which they had continued to care and accommodate him. There was no reason to assume that this parental ability would diminish when the claimant was in a residential school for up to 52 weeks a year. Once the Council provided Horton House, through the Statement of Special Educational Needs, it also decided that the claimant no longer needed the respite accommodation. All his accommodation needs, for 52 weeks a year, would be met by Horton House School. In the circumstances the Council approached the matter with anxious scrutiny. I cannot conclude that the Council erred in law in ceasing to regard the claimant as requiring accommodation pursuant to section 20 of the Children Act 1989, once he was to attend Horton House and no longer needed respite care."
The Children Act's LAC regime
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part [III]) –
(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…
(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…
(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part –
"development" means physical, intellectual, emotional, social or behavioural development…"
"(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 section 17, 23B and 24B…
(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."
"226…There is evidence that this group of children [looked after children] achieve significantly less well than their peers, and that this under-performance is due at least in part to a lack of effective support from local authorities as "corporate parents" of these children.
227. The new duty will mean that local authorities will have to give particular attention to educational implications of any decision about the welfare of any child they are looking after. That might be for instance the need to organise a suitable school placement at the same time as arranging a new care placement."
"(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;
(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…
(4) A local authority may provide accommodation for any child in need within their area (even though a person with 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."
"The message of those cases is that if the section 20 duty has arisen and the children's authority have provided accommodation for the child, they cannot "sidestep" the issue by claiming to have acted under some other power."
"The need for a residential placement therefore is as much a social care need and responsibility as an educational one…"
(see at  and  above). As the Core Assessment acknowledged:
"Both Dr Rasool's report and the Statement of Special Educational Needs recognise the need for a specialised placement on educational and psycho/social grounds"
(see at  above). And as the Care Plan stated (at question 5, see at  above):
"the assessment is that his welfare needs will be met by the educational placement under the Education Act 1996."
Nevertheless, the judge regarded section 22(3A) as irrelevant or neutral (see his , cited above, and his ).
"…We have heard no submissions from the other parties on the circumstances in which, once triggered, the duty under section 20(1) might come to an end. Presumably, it will do so if the criteria are no longer met – if the child is no longer "in need", or his parents or carers are no longer prevented from providing him with suitable accommodation or care, or if a competent child no longer wishes to be accommodated under that section. But the whole purpose of the leaving care provisions was to ensure that older children who were without family support were given just the sort of help with moving into independent living that children normally expect from their families. Authorities should therefore be slow to conclude that a child will no longer be "in need" because he did not need that help or because it could be provided in other ways."
"(4) Does he appear to the local authority to require accommodation? In this case it is quite obvious that a sofa surfing child requires accommodation."
The Education Act's SEN regime
"Where a local education authority maintain a statement under this section, then –
(a) unless the child's parent has made suitable arrangements, the authority –
(i) shall arrange that the special educational provision specified in the statement is made for the child, and –
(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate…"
The interrelationship of the Children Act and the Education Act
"10. The decision on the care plan was made by the performance manager, Mr Barry Smith, in consultation with the childcare team. Mr Smith no longer works for the authority but I am able to confirm from the local authority's records and from my own involvement that the decision was taken that once the residential placement commenced [RO] would no longer require respite care and therefore would cease to be a looked after child. The local authority was not satisfied that after he commenced his full-time placement at Horton House [RO] would benefit from respite care to safeguard and promote his welfare as the parents could cope with him at weekends and holidays as they demonstrated when [RO] was at The Croft and went home at weekends and for the Christmas holiday."
"The care plan filed on 22nd December 2008 stated clearly that [RO] would cease to be a looked after child once he commenced his full-time educational placement. In fact he had been removed from the local authority's care shortly before this care plan by his parents (on 19th December 2008)…
I confirm that this is the view of the local authority because [RO] no longer requires respite care and there is no assessment of needs that would justify a finding by the local authority that [RO] required accommodation pursuant to section 20 of the Children Act 1989."
"13. When a child becomes looked after – either on a short-term or long-term basis – it is the duty of the Local Authority as corporate parents to safeguard and promote his or her welfare. This means that alongside planning secure and reliable care and responding to the child's need to be well and healthy, local authorities have a specific responsibility to support his or her educational achievement…
46. Discharging the duty on a day-to-day basis means that a local authority should do at least what any good parent would do to promote their child's educational aspirations and support their achievements…
47. This means…
47.7 ensuring that the relevant local authority representative as specified in the PEP [Personal Education Plan, see paras 70/71] and Placement Plan (this could be a foster carer) attends parents' evenings and other relevant meetings, such as the annual reviews of a statement of special educational needs;…
49. When a child becomes looked after his or her local authority will arrange a suitable care placement. In doing so, the child's allocated social worker, supported by the local authority management and resources, should do everything possible to minimise disruption to the child's education…
84. The duty extends to young people preparing to leave care. In this context, where they are continuing their education in school, college and university settings, local authorities must properly discharge their duties under sections 23A to 24D of the 1989 Act and associated Regulations and statutory guidance to improve the life chances of looked after children leaving care…
Special Educational Needs
86. Looked after children are nine times more likely to have a statement of special educational needs than the general pupil population. The majority of looked after children will have special educational needs, and it is important that all children with SEN receive the educational provision which meets their needs. However for looked after children, many of whom will have had difficult and unstable home and school lives before coming into care, it is imperative that their needs are quickly and efficiently assessed and provided for so that the effects of any instability on their education is reduced to a minimum. Teachers, carers, social workers and other professionals should use the standard school and local authority assessments to identify any special needs and take steps to address such needs effectively.
87. Where it is agreed that the child's needs exceed those normally addressed in mainstream education provision an application for statutory assessment under the Education Act 1996 for a Statement of Special Educational Needs may be made. The authority which carries out that assessment is determined by section 321(3) of the Education Act 1996. This means that the SEN assessment should be carried out by the authority where the child lives. This may not be the same authority to which the child "belongs". In most cases a looked after child will be living with carers or in a children's home. If that is where they are ordinarily resident then it is for the authority where they are resident to carry out the SEN assessment. The local authority School Educational Psychologist has statutory duties associated with the identification and assessment of SEN."
"Having decided that a statutory [SEN] assessment should be made, the local education authority must seek parental, educational, medical, psychological and the social services department's advice. Where a child is known to the social services department, the social worker should draw on information which has already been gathered and is on the child's file. At the same time, the social services department may decide to undertake a child in need assessment under s 17 of the Children Act 1989, to ascertain whether social services would benefit the child and family."
"Both Dr Rasool's report and the Statement of Special Educational Needs recognise the need for a specialised placement on educational and psycho/social grounds."
"7. C contends that on the particular facts of this case, in view of C's complex needs and vulnerabilities, D is not entitled to cease to look after C simply because D has found a different legislative route to providing C with the full-time residential care that professionals have said C requires since at least February 2007."
"Where a child has been looked after by local authority social services, can the local authority justifiably cease to look after the child where the child cannot be returned home and the criteria for accommodation under section 20 are still met (but for the local authority providing accommodation)?"
"41. Had the learned judge carried out the requisite intensity of review, it is contended on behalf of the Appellant that the only reasonable finding open to him was that the Appellant was or should have continued to be treated as a 'looked after child' irrespective of the placement under the Statement, because that placement ought to, as a matter of law, be a s20 and s23 accommodation."
Lady Justice Smith :
Lord Justice Richards :