Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF W
|- and -
|ESSEX COUNTY COUNCIL
Andrew Sharland (instructed by Essex CC) for the Defendant
Hearing date : 5 December 2003
Crown Copyright ©
Mr Justice Charles:
The most relevant statutory provisions. Amendments and their timing.
(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a) in their care, or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under sections 17, 23B and 24B.
(2) In subsection (1) "accommodation" means accommodation which is provided for a continuous period of more than 24 hours.
The words "apart from functions under sections 23B and 24B" were introduced by s. 2(2) of the 2000 Act, as from 1 October 2001, and the reference to section 17 in that phrase was introduced by s. 116 of the 2002 Act, as from 7 November 2002. Thus, and importantly, as a result of these amendments children provided with accommodation under ss. 23B and 17 are excluded from the definition of a child who is "looked after" by a local authority from respectively 1 October 2001 and 7 November 2002.
(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
(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a) the child ------
(5) In making any such decision a local authority shall give due consideration—
(a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain ------
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by
(f) making such arrangements as
(i) seem appropriate to them, and
(ii) comply with any regulations made by the Secretary of State.
I pause to comment that it was accepted before me that this provision means that the relevant accommodation, or provision of housing, actually provided to W in this case after he reached the age of 16 could have been provided on the basis that W was a child who was being looked after by the local authority and thus (after the amendment to s. 22 by the 2002 Act) under s. 20.
19A It is the duty of the local authority looking after a child to advise, assist and befriend him with a view to promoting his welfare when they have ceased to look after him.
19B (1) A local authority shall have the following additional functions in relation to an eligible child whom they are looking after.
(2) In sub-paragraph (1) "eligible child" means, subject to sub-paragraph (3), a child who—
(a) is aged sixteen or seventeen; and
(b) has been looked after by a local authority for a prescribed period, or periods amounting in all to a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen.
(4) For each eligible child, the local authority shall carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Act—
(a) while they are still looking after him; and
(b) after they cease to look after him,
and shall then prepare a pathway plan for him.
(5) The local authority shall keep the pathway plan under regular review.
19C A local authority shall arrange for each child whom they are looking after who is an eligible child for the purposes of paragraph 19B to have a personal adviser."
It was common ground before me that, as was the position when the Berhe case was decided, the prescribed age is 14 and the prescribed period is 13 weeks (see the Children (Leaving Care) Regulations 2001). Reading them into paragraph 19B (2)(b) it reads:
"has been looked after by a local authority for 13 weeks, or periods amounting in all to 13 weeks, which began after he reached the age of 14 and ended after he reached the age of 16"
23A The responsible authority and relevant children
(1) The responsible local authority shall have the functions set out in section 23B in respect of a relevant child.
(2) In subsection (1) "relevant child" means (subject to subsection (3)) a child who—
(a) is not being looked after by any local authority;
(b) was, before last ceasing to be looked after, an eligible child for the purposes of paragraph 19B of Schedule 2; and
(c) is aged sixteen or seventeen.
23B Additional functions of the responsible authority in respect of relevant children
(1) It is the duty of each local authority to take reasonable steps to keep in touch with a relevant child for whom they are the responsible authority, whether he is within their area or not.
(2) It is the duty of each local authority to appoint a personal adviser for each relevant child (if they have not already done so under paragraph 19C of Schedule 2).
(3) It is the duty of each local authority, in relation to any relevant child who does not already have a pathway plan prepared for the purposes of paragraph 19B of Schedule 2—
(a) to carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Part; and
(b) to prepare a pathway plan for him.
(7) The authority shall keep the pathway plan under regular review.
(8) The responsible local authority shall safeguard and promote the child's welfare and, unless they are satisfied that his welfare does not require it, support him by—
(a) maintaining him;
(b) providing him with or maintaining him in suitable accommodation; and
(c) providing support of such other descriptions as may be prescribed.
23C Continuing functions in respect of former relevant children
(1) Each local authority shall have the duties provided for in this section towards—
(a) a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and
(b) a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child,
and in this section such a person is referred to as a "former relevant child".
(2) It is the duty of the local authority to take reasonable steps—
(a) to keep in touch with a former relevant child whether he is within their area or not; and
(b) if they lose touch with him, to re-establish contact.
(3) It is the duty of the local authority—
(a) to continue the appointment of a personal adviser for a former relevant child; and
(b) to continue to keep his pathway plan under regular review.
(4) It is the duty of the local authority to give a former relevant child—
(a) assistance of the kind referred to in section 24B(1), to the extent that his welfare requires it;
(b) assistance of the kind referred to in section 24B(2), to the extent that his welfare and his educational or training needs require it;
(c) other assistance, to the extent that his welfare requires it.
(6) Subject to subsection (7), the duties set out in subsections (2), (3) and (4) subsist until the former relevant child reaches the age of twenty-one.
(7) If the former relevant child's pathway plan sets out a programme of education or training which extends beyond his twenty-first birthday—
(a) the duty set out in subsection (4)(b) continues to subsist for so long as the former relevant child continues to pursue that programme; and
(b) the duties set out in subsections (2) and (3) continue to subsist concurrently with that duty.
(a) he was being looked after by the local authority, or
(b) he had been a relevant child.
To be a relevant child W must have been an eligible child as defined in paragraph 19B. This is quite convoluted but once unravelled keys are the definitions of being "looked after" and of an "eligible child".
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(5) Every local authority—
(a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23, 23B to 23D, 24A or 24B; and
(b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.
(10) For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11) 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 and permanently 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; and
"health" means physical or mental health.
The words "providing accommodation and" in square brackets in subsection (6) were inserted by the Adoption and Children Act 2002, s 116(1) with effect from 7 November 2002.
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a) ascertain the child's wishes regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.
Comment on the above
(a) he is not looked after by a local authority,
(b) he therefore does not become a former relevant child because he was being looked after when he attained 18 but does so because he was a relevant child,
(c) the issue of whether he has been looked after by a local authority (i) concerns the period before he last ceased to be so looked after, and (ii) is directed to the question whether he was an eligible child when he ceased to be looked after, and
(d) the issue whether he is accommodated under s. 17 or s. 20 is (and since 1 October 2001 has been) irrelevant.
The effect of the Berhe case having regard to those agreed facts
(a) W was being looked after by the local authority in July and August 2002,
(b) W became an eligible child because he had been looked after in 2000 (when he was 14) and in 2002 (when he was 16) for periods which exceeded 13 weeks in total,
(c) when W ceased to be looked after in August 2002 he became a relevant child, and
(d) when he attains 18 W will be a former relevant child.
The consequence of the points in paragraph 25 and their acceptance by the parties
(a) the Claimant achieved what I understood to be his main objective, and
(b) the issue whether the provision of accommodation or housing to W in 2003 was, or should have been, under s. 20, as opposed to s. 17, is academic.
The further arguments
(a) the points made in paragraph 30 hereof, and
(b) the failure of the Claimant in the grounds, the skeleton argument put in on his behalf or oral argument to address the point that under s. 20 the decision maker is the local authority and not the court,
counsel for the Claimant pursued the arguments set out in the grounds and her skeleton argument. As I understood it her main reason for doing so was her assertion that in particular the arguments that no proper assessment had been carried out were not wholly academic because they indicated an incorrect approach that would be, or might be, continued.
(1) In my view the argument that there had not been a proper assessment was on proper analysis an argument that the local authority had reached the wrong decision rather than one that it had not properly informed itself because it had not carried out a proper assessment. This flowed from (i) the common ground that W was a child in need who satisfied one or more of the provisions of s. 20 (1)(a) to (c) and was vulnerable, and (ii) the point that the matters which the Claimant was asserting were important or relevant were in the papers and were known to the local authority.
(2) The allegation that all the local authority had done was to seek and act on the views of W was wrong and should not have been made.
(3) In my view, the common ground referred to in paragraph (1)(i) and the acceptance by the local authority that W is a relevant child and will be a former relevant child, means that he will in future be treated and assessed as such and having regard to that common ground by the local authority and views of the court on past assessments are unlikely to be of assistance.
(4) If the further provision of accommodation or housing after W attained the age of 16 that would have been relevant in determining whether he was an eligible child had all taken place after 7 November 2002 (and perhaps if the local authority had pursued the argument referred to in paragraph 70 of the judgment in the Berhe case - and paragrah 27 above) points would have arisen as to whether the local authority had taken the correct approach in law to deciding whether it should accommodate W under s. 20 or s. 17. Further these points might have founded an argument that no local authority properly directing itself could have concluded that the accommodation was to be provided under s. 17 rather than s. 20.
(5) It seems to me that the exclusion since 7 November 2002 of accommodation provided under s. 17 from accommodation that satisfies the definition of a child who is being looked after by a local authority has the consequence that it is now strongly arguable that (a) there is a distinction between accommodation provided under the two sections, and (b) in deciding what to do and what power it should exercise a local authority should have regard to the effect that its decision will have on (i) the duties it will owe to the child, and thus (ii) on whether the child will satisfy the definition of a child who is looked after by the local authority, an eligible child, a relevant child and a former relevant child.
(6) In any event it seemed to me that it was strongly arguable that when directing its attention to the issue whether it should provide accommodation or housing to W under s. 17 or s. 20 in its assessment communicated on 31 October 2003 the local authority erred in law in its approach to, and interpretation of, the effect of W's expressed wishes, having regard to the points that:
(i) his wishes on accommodation or housing could have been met under s. 20 (see the comment in paragraph 11 above), and
(ii) the view set out in the assessment that if W was considered to be a looked after child this would be contrary to his expressed wishes does not accord with the notes of the relevant interviews and was accepted to be a point of interpretation because understandably W was not asked whether he did, or did not, want to be a "looked after child".
However the grounds and oral argument did not include this line of attack and therefore the local authority was deprived of an opportunity to expand their reasoning as to why W's views founded, or favoured, a conclusion that he should not be accommodated under s. 20 and why in his case the local authority should not take on the duties owed to a looked after child imposed by s. 22 (or the duties under the "after care" code), it seemed to me that if the point had been a live one the local authority would have to have been given an opportunity to provide such additional reasoning.