England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE CONNELL: The applicant was born on 22nd November, 1978 and is now aged 18 years 6 months. He was first admitted to the care of Lambeth in January, 1979 and an application for a care order was made by them in February, 1980 on the basis that his mother was unable to care adequately for him. Thereafter there were from time to time indications that her parental abilities had improved and attempts were made at rehabilitation of mother and child. These attempts finally broke down in 1985 and on 31st October, 1986 in contested wardship proceedings the care of David was committed to Lambeth pursuant to section 7(2) Family Law Reform Act 1969. The plan for David’s future which was then approved by the court was for a placement with a view to adoption, which placement was eventually achieved in 1989. Very sadly the placement broke down in 1992, whereafter David went to live with Mrs Irene Jones, an experienced foster mother contracted to an independent fostering organisation called Heath Farm Family Service. This placement was funded by Lambeth, who still had the care of David within the terms of a care order now under The Children Act 1989 as a result of the transitional provisions contained in schedule 14, paragraph 15.

2. By the time that he went to live with Mrs Jones in May, 1992, David had experienced between 50 and 60 placements in various foster homes and children’s homes, despite which his placement with Mrs Jones proved successful and lasting. Not surprisingly in the circumstances, however, he remains a very vulnerable young man whose ability to live independently remains open to question. There is no doubt that he needs and deserves advice and assistance for the future to help him make the transition from childhood to adult life. Between September, 1995 and July, 1996 he completed a one year course in art and design at the Medway College in Chatham; and in September, 1996 he started on a two year course studying for a National Diploma. In January, 1997 he moved from Mrs Jones’ home to a one bedroom flat in Sheerness but he is still very reliant on Mrs Jones for support, advice, and practical help such as the provision of some meals, occasional weekend accommodation and the washing of clothes. His rent is paid via Housing Benefit and he receives £37.90 Income Support. Lambeth met his expenses until he became 18, whereafter they have paid for his travel to and from college, his fees for the courses and for books and materials, but on a voluntary basis. Mrs Jones no longer receives any payments from Lambeth for assisting the applicant, and once he becomes 19 this November he will no longer be eligible for income support if he remains a student on a full time course. It is too early to tell whether he will be able to continue living on his own; or whether he may return to live with Mrs Jones, but either way he will need continuing help, advice and financial support, especially if he is to complete the diploma course in July, 1998. The real issue in this case is who should provide that advice and assistance, including some financial support.

3. In September, 1995 the applicant consulted his present solicitors, primarily concerning his ability to make a claim from the Criminal Injuries Compensation Board in respect of his childhood history and the abuse to which he had been subjected. On 10th January, 1996 they wrote to Lambeth raising the question of the care of the applicant once he became 18 and referring to the duties of a local authority under section 24, Children Act 1989 to provide advice and assistance to certain persons post majority. They expressed the view that the applicant would be most unlikely to be ready for independent living for a significant time because of his unhappy background and the damage that he had suffered in the past; and indicated that an application for Judicial Review would be considered if adequate provision for him was not timetabled appropriately. At a statutory review held on 2nd February, 1996 decisions were apparently made by Lambeth to apply for an extension of his placement with Mrs Jones and to request commitment to his placement until 19+. These decisions however were not communicated to the applicant until October, 1996, and meanwhile on 22nd March, 1996 his solicitors invoked the complaints procedure envisaged in section 26(3) Children Act 1989, requiring consideration by an independent person of representations on the applicant’s behalf. There was significant delay by Lambeth in following this procedure and his solicitors continued to press on his behalf for the conclusions of the independent person and for the results of a further statutory review which had taken place on 15th July, 1996. Eventually the review minutes were sent in September, 1996 but the independent recommendations were not; so that on 2nd October, 1996 the solicitors wrote on the applicant’s behalf that they believed that the obligations of Lambeth pursuant to section 24 Children Act 1989 were being ignored, that this is a very serious matter, that the applicant is a very vulnerable young person and that his legitimate complaint had been treated with contempt.

4. On 4th October, 1996 Lambeth finally sent a copy of the independent person’s report to the applicant’s solicitors, dated 15th July, 1996. She recommended:

5. In her report Mrs Stringer observed, “The department’s legal position is clear. It would only be in a position to consider financial assistance under s.24 to David if he were resident in Lambeth. Being resident outside of Lambeth, the Department’s duty is to notify Kent Social Services that there is a young person leaving care and resident in their area. It would then be Kent’s responsibility to consider after care support.”

6. The review minutes of 15th July, 1996 also included two decisions of importance, namely that the applicant would be referred directly to Kent after care provision and that private voluntary funding for him should not go beyond his 18th birthday on 22nd November, 1996. The assertion that the provision of assistance for the applicant when he reaches 18 becomes the responsibility of Kent was repeated by Lambeth in a letter dated 11th October, 1996. This assertion had never been made in writing to the applicant before October, 1996, and until that time he had been led to believe that Lambeth accepted the responsibility to him in principle.

7. In the light of the history of the matter previously recited it is not surprising that the applicant pursued his complaints against Lambeth before a complaints and representations review panel who met on 7th November, 1996. They decided that the way in which Lambeth had handled the applicant’s transition from care to independent living at the age of 18 was totally unacceptable; that Lambeth’s letter to Kent informing Kent, pursuant to section 24(11) Children Act 1989 that the applicant was living in Kent was inadequate in content and late in delivery; and that Kent had provided an equally inadequate response. They recommended that every avenue be explored in an effort to continue financial support for the duration of the applicant’s course of study and concluded that Lambeth Social Services department owes him a comprehensive apology for the way it has handled his care over the years. I observe that the letter apparently written by Lambeth to Kent on 24th October, 1996 telling Kent of the applicant’s presence in their area has not been produced before this court, which is left in ignorance of its content.

8. Accordingly the justifiable concerns of a young man who has suffered through no fault of his own about his transition from childhood to independent living in adult life have had to be ventilated before this court. Lambeth have agreed to fund his educational needs up to June, 1997, but they assert that the authority where he is ordinarily resident and which they say is Kent is responsible for offering support to him. Kent have invited the applicant to call in at one of their “drop-in facilities” to ask for support and advice but they wrote to his solicitors on 25th November, 1996 saying that under section 24 Children Act 1989 Lambeth should be responsible for his after care.

9. On 6th February, 1997 the President of the Family Division granted the applicant leave to apply for a Judicial Review of Lambeth’s decision communicated in their letter of 4th October, 1996. This decision was that it is the statutory duty of Kent to provide after care support to the applicant under section 24 Children Act 1989 on the basis that he is a young person living in their area. The President directed that the motion and papers should be served on Kent, despite which fact they have not sought to play any part in these proceedings. Accordingly, since it is clear that the applicant has exhausted all alternative remedies available to him without obtaining satisfaction, this court now has to decide in effect where the responsibility for advising and assisting him truly lies.

10. Section 24(1) Children Act 1989 reads:

11. The applicant was plainly looked after by Lambeth for many years and in particular since 31st October, 1986 when a care order in their favour was first made. Section 22(3) Children Act 1989 provides that :

12. The argument advanced on behalf of the applicant is that when, in section 24(1) the duty of the Authority is described, it is a duty to advise, assist and befriend a person such as the applicant with a view to promoting his welfare when he ceases to be looked after by them. It is submitted that it remains the duty of the local authority to whose care the individual had been committed to continue to promote his welfare in appropriate circumstances once the care order has run its course. The argument is that it is the intention of the statute that the local authority who had responsibility for the particular individual should continue under a duty to exercise that responsibility after the expiry of the care order in appropriate cases.

13. Section 24(2) Children Act 1989 reads

14. The applicant is under 21 and he was looked after by Lambeth after reaching the age of 16, but is no longer so looked after by them. Therefore he is plainly a person qualifying for advice and assistance but he is not within the area of Lambeth. Rather he is within the area of Kent. The Act goes on in section 24(4) as follows:

15. Section 24(5) reads:

16. It is clear that Kent know that the applicant is within their area and that he qualifies for advice and assistance. Further they have been asked by the applicant’s solicitors for advice and assistance on his behalf. The submission on behalf of the applicant however is that the conditions in subsection 5 are not satisfied, and therefore that Kent are not obliged to advise and befriend the applicant. It is accepted that the applicant is in need of advice and of being befriended, but it is argued that the person by whom the applicant was being looked after was Lambeth, and that they do have the necessary facilities for advising or befriending him. Therefore the applicant argues that the conditions in section 24(4) and 24(5) are not made out and that Kent are not obliged to help the applicant. Further it is submitted in these circumstances the obligation must continue to fall upon Lambeth and the court’s attention is drawn to the Department of Health guidance and regulations relating to the Children Act 1989, volume 3, dealing with family placements. In the passage dealing with the provision of financial assistance at paragraph 9.70 the guidance reads:

17. It is of course Lambeth who have held parental responsibility for the applicant and therefore it is argued, in accordance with that passage in the guidance, that the applicant whose mother does not have the capacity to provide assistance will turn to the local authority which has been a major influence in his life, i.e. Lambeth, for help. Their situation is likened to that of a parent and reliance is based upon other passages in the guidance, in particular paragraphs 9.5 and 9.18 to assist the submission that the support provided to a person in the applicant’s position should be broadly the support that a good parent might be expected to give. The argument is that a good parent would not, at a crucial stage of a young person’s life, seek to delegate responsibility for the young person to somebody else. Further it is submitted that it cannot be right to allow a local authority to “offload” their responsibility for a young person by moving him to live in another area and thereby attempting to place the burden of supporting him upon that other authority. In this regard reliance is placed upon the assertion by Kent in their letter of 25th November, 1996 to the applicant’s solicitors to the effect that there are currently 582 children placed by other local authorities, mostly London Boroughs, in private children’s homes or independent fostering agency placements in Kent. They say that if Kent were to be responsible for the after care of all these young people, then they would need a considerable addition to their budget.

18. I accept the broad submission that the intention of the Act is to provide continuing advice and assistance to young persons who have been in care once they achieve majority and where it is shown that they are in need of advice and of being befriended. However in my view the words of the statute are clear. Section 24(2) provides that a person qualifying for advice and assistance means a person within the area of the authority. These words are plain. The applicant is not within the Lambeth area. Accordingly so far as they are concerned he is not a person qualifying for advice and assistance from them. Further in my view the conditions set out in section 24(5) are satisfied in this case (a) because the applicant is in need of advice and being befriended and (b) because it is plain that the applicant was being looked after by Mrs Jones who does not have the necessary facilities for advising or befriending him. Accordingly, within the terms of section 24(4) of the Act Kent shall, since the applicant had been looked after by Lambeth after he reached 16 but whilst still a child, advise and befriend him. Under section 24(6) they may also give him assistance, and under section 24(7) assistance may be in kind or, in exceptional circumstances, in cash. In view of the history previously recited in this judgment there can be little doubt but that the circumstances here are exceptional.

19. In my view the words of the statute and in particular of section 24(2) are clear enough. I reject the argument that the phrase “within the area of the authority” in that subsection should be read as referring back to the period when the qualifying person was still a child. In my judgment the appropriate procedure to be adopted here is that envisaged in section 24(11) of the Act which reads:

20. Here Lambeth have informed Kent of the applicant’s presence in the area of Kent. Here again the guidance of the Department of Health is of assistance, and in particular paragraph 9.62. That paragraph reads:

21. Thus the guidance leads to the same conclusion as the clear words of the statute and it is further relevant to observe when considering section 24(4) that Lambeth do not know that the applicant is within their area since he is in Kent. Accordingly in my judgment the decision of Lambeth contained in their letter of 4th October, 1996 that provision for the applicant’s aftercare support fell upon Kent County Council was correct and I shall decline the application for the relief sought. There are provisions for co-operation between authorities and for recoupment of cost of providing services which are set out in sections 27 and 29 of the Act and I do not doubt that both authorities will wish to consider the implications of these sections when deciding whether the full burden of providing assistance to the applicant should fall upon Kent, but it is to them to whom he should turn at the present time.

22. MR JUSTICE CONNELL: Mr Cobb, the terms of the judgment which I have delivered have been handed down. If there is thought to be any useful purpose of my reading out the judgment, then I will do so, but I hope that copies are available to all those who would like to have copies. My judgment is in those terms.

23. MR COBB: I see my no useful purpose in your Lordship reading the judgment out. My instructing solicitor had a copy of the judgment on Friday and the terms have just been imparted to David. My Lord, in those circumstances, I think the only outstanding question is the question of costs. I am, as your Lordship will know, legally aided in this matter.

24. MR JUSTICE CONNELL: So your application is?

25. MR COBB: I would be inviting your Lordship to say that there should be no order for costs, save for a legal aid taxation. My Lord, this is a matter which, as your Lordship recognised himself, needed to be ventilated before the court and David, being a legally aided client, I would submit no order is the right order.

26. MR JUSTICE CONNELL: Did you want to say anything about that, Mr Cottell?

27. MR COTTELL: My Lord, yes. It is a matter of some interest in that costs are to be paid out of central funds. The two local authorities, in essence, are performing their duties under the Act. I take that point very shortly. The more substantive point I would wish to take is that perhaps these are circumstances in which your Lordship can make an order that the Kent County Council pay the costs of the proceedings?

28. MR JUSTICE CONNELL: Were they a party?

29. MR COTTELL: My Lord, they are not a party to the proceedings but in exceptional circumstances your Lordship can make an order. As your Lordship noted at page 6, paragraph (a) of your Lordship's judgment, they were invited by the court to be a party to these proceedings and declined to do so. In essence, the dispute was between whether Lambeth or Kent should bear the costs of David's education. They have steadfastly throughout refused to play any part in the proceedings. They got it wrong. In terms of your Lordship's ability to make that order, may I refer your Lordship to Volume 1 of the White Book at page 1051? The second paragraph on that page:

30. That does not apply here.

31. MR JUSTICE CONNELL: Just pausing there, I suppose it might be open to the applicant to have taken comparable proceedings against Kent if leave had been granted.

32. MR COTTELL: My Lord, to that extent, and this is one of the factors that one seeks to rely on in terms of the application out of central funds, leaving that aside and going back to the application against Kent in subparagraph (3):

33. My Lord, we do not have an action against Kent. In terms of any notice, they certainly have declined to play any part in the proceedings.

34. MR JUSTICE CONNELL: Did you tell Kent you were going to apply to me for an order for costs? The answer is you have not.

35. MR COTTELL: No, my Lord. Going to subparagraph (4):

36. All your Lordship says is that they have been invited to appear by the Principal of the Family Division and they have simply declined to accept that invitation.

37. Subparagraph (6):

38. My Lord, we submit that applies in this case. Subparagraph (9):

39. My Lord, we submit that is not the case. The dispute is between Kent and Lambeth. It is not simply because the order was likely to follow. If an order were made, not to be enforced without leave of the court, very exceptionally an order might be made for the costs out of central funds.

40. MR COTTELL: Your Lordship may be aware of the observations of the Vice Chancellor recently that he has never understood why, in principle, there is any objection to central funds meeting the cost of the party where in this case, for example, the applicant is legally aided. My Lord, I merely make that observation. That is all I would say.

41. MR JUSTICE CONNELL: I do not think this is an appropriate case for an award or order for costs to be made out of central funds. Nor, in my view, is it a suitable case for an order to be costs to be made against a non-party. The order I shall make is no order for costs save for legal aid taxation of the costs of the applicant.