Case No: CO/5179/2003
Neutral Citation Number: [2003] EWHC 3175 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19 December 2003

Before :

THE HONOURABLE MR JUSTICE CHARLES
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Between :

	THE QUEEN ON THE APPLICATION OF W	Claimant	
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	ESSEX COUNTY COUNCIL	Defendant	

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Carolyn Hamilton (instructed by the Children’s Legal Centre) for the Claimant
Andrew Sharland (instructed by Essex CC) for the Defendant

Hearing date : 5 December 2003
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JUDGMENT 

Mr Justice Charles:

Introduction

1.	I have before me a wardship summons and an application for judicial review. Both were issued by the litigation friend of a young man (W) who will be 18 on Christmas Day. W was made a ward on 26 September on the undertaking of the litigation friend to issue a summons in wardship.  On 3 October  I took the liberal step of giving permission to the litigation friend to issue proceedings for judicial review in the absence of an application setting out the grounds relied on. I did so to avoid arguments that were then being advanced as to which court had jurisdiction and because of the urgency of the situation.
2.	The proceedings for judicial review were filed on 6 October and have been the lead proceedings, which is why I am giving this judgment in them.  I however record that I discharge the wardship and that an order to that effect should be drawn up in the wardship proceedings.
3.	The issue that triggered the applications to court was the provision of somewhere for W to live. The initial jurisdictional argument was based primarily on sections 17, 20 and 100 of the Children Act 1989.  As I understood it what lay behind that argument was the issue whether the Children (Leaving Care) Act 2000 (the “2000 Act”) and thus the “after care” code introduced thereby into the Children Act 1989 would apply to W when he became 18.  As I understood it the main purpose of the litigation friend was to establish that it did, although of course she was also concerned to see that W had appropriate housing or accommodation immediately.  The latter aim was achieved effectively by agreement as to where W would be placed.
4.	At the initial stage (and indeed as I understood it) during the period leading up to the hearing it was common ground between the Claimant and the local authority that the question whether the local authority decided to accommodate W under s. 20 Children Act was important.  This changed on the morning of the hearing but against that background, and as is recited in the order of 13 October (made by me and not Coleridge J as is stated therein), the local authority agreed to make a decision as to whether W was, or was to be, accommodated under s. 20 by 31 October 2003.  The recital also contained agreed provisions about assessment and interviews.  Further as the recitals indicate an agreement or understanding was reached that between 13 and 31 October the local authority would reconsider and reassess the position. I therefore gave leave to the Claimant to amend his grounds for judicial review by 7 November. On 3 November I gave further directions as to evidence and skeletons.
5.	No amendment to the grounds for judicial review was made.  To the eyes of a practitioner in public law this is a little surprising because necessarily the decision of the local authority communicated on 31 October 2003 and contained in an updated needs assessment of 29 October 2003 overtook the earlier decisions and could not have been made when the proceedings were issued.  The Claimant’s advisers however decided to rely on the assertions that the local authority had acted unlawfully and unreasonably because it had failed to carry out any, or any adequate, assessment of W’s needs and had failed to “look after” W or provide him with accommodation under s. 20(1) or (3) Children Act.
6.	This approach of the Claimant caused some problems and as mentioned during the hearing in my view the local authority are to be commended for not pursuing procedural points.
The most relevant statutory provisions.  Amendments and their timing.
7.	These are helpfully and clearly set out by Sullivan J in R ex parte B (and others) v London Borough of Hillingdon [2003] EWHC 2075 (Admin) (the “Berhe case”).  As appears later the decision in the Berhe case is important on the facts of this one as is the point that s. 22 of the Children Act was amended as from 7 November 2002 by s. 116 of the Adoption  and Children Act 2002 (the “2002 Act”).
8.	As Sullivan J explains in the Berhe case in connection with the “after care” code duties are owed to an “eligible child”, a “relevant child” and a “former relevant child” all as defined by the 2000 Act.  The definitions are important and are contained in provisions introduced into the Children Act by the 2000 Act.
9.	An important element of the definition is the reference therein to a child who is, or has been, “looked after” by the local authority.  That expression is also defined.  The definition is in s. 22 Children Act. That definition is now as follows:
(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.
10.	Section 22 Children Act imposes duties on a local authority in respect of a child looked after by it and provides inter alia that:
 (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 ------

11.	Section 23(2) Children Act provides inter alia that:
 (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.  
12.	Paragraphs 19A, 19B and 19C of Part II to Schedule 2 (introduced by the 2000 Act) provide inter alia as follows:
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”

13.	Sections 23A, 23B and 23C Children Act (introduced by the 2000 Act) provide inter alia as follows:
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.  
   
14.	Pausing there it can be seen that the local authority would have duties to W as a former relevant child, if when he attains the age of 18, either:
(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”.
15.	Section 17 Children Act imposes general duties on a local authority and provides inter alia that:
(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.
16.	Section 20 Children Act contains provisions concerning the provision of accommodation for children and provides inter alia that: 
(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
17.	As appears from the provisions set out above the “after care” code introduced by the 2000 Act imposes duties (i) after the sixteenth and before the eighteenth birthday of the child, and then (ii) after the child is eighteen if the child is a former relevant child. 
18.	During the period between the ages of 16 and 18 the duties are imposed by paragraph 19B in respect of an eligible child, and by s. 23B in respect of a relevant child.  An eligible child may continue to be looked after until he reaches the age of 18, and if this is the case he will then become a former relevant child pursuant to s. 23C (1)(b), whereas by definition a relevant child has ceased to be looked after by the local authority after he attained the age of 16 and becomes a former relevant child pursuant to s. 23C (1)(a).
19.	Since 1 October 2002 accommodation that is provided under s. 23B, and thus necessarily accommodation that is provided to a relevant child, does not count for the purposes of the definition of a child who is looked after by a local authority.  So it seems to me that in respect of a relevant child:
(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.
Agreed facts
20.	From  11 February 2000 until 8 September 2000 W the local authority placed W with foster carers under s. 20 Children Act, W was then 14.
21.	In July and August 2002 when W was 16 he was provided with accommodation or housing by the local authority at the Park Hotel. The local authority assert that this was pursuant to s. 17 Children Act.
The effect of the Berhe case having regard to those agreed facts
22.	In the Berhe case Sullivan J rejected the submission that the amendment of s. 22 by the 2002 Act (i.e. to exclude accommodation provided under s. 17) merely clarified the existing law.  I respectfully agree. 
23.	In my view correctly it was not argued before Sullivan J, or me, that if that amendment was not merely clarification it was retrospective. Sullivan J proceeded on the basis that the amendment was not retrospective and therefore did not affect the Claimants in the case before him all of whom became 18  before 7 November 2002.  Equally it follows that the amendment does not affect W prior to 7 November 2002.
24.	Sullivan J also decided that for the purposes of deciding whether a child was being looked after (as defined by s. 22) it did not matter whether the local authority was (or in its view was) providing accommodation under s. 17 or s. 20, or put another way that the provision of accommodation under s. 17 counted for the purposes of the definition of a child who is being looked after by a local authority (see paragraph 65 of the judgment in the Berhe case).
25.	On that basis and on the agreed facts when reading the papers in this case it seemed to me that:
(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.
26.	In this context I add that in my view the exclusion from the definition in s. 22 of a child who “is looked after by a local authority”, of accommodation under s. 23B does not mean that in July and August  2002 W was not being looked after by the local authority.
27.	At the beginning of the hearing I put the points set out in paragraph 25 above to the parties and invited them to consider whether they agreed or disagreed with them.  After an adjournment the parties indicated that they accepted that the points set out in paragraph 25 were correct.  In doing so the local authority stated that it did not wish to pursue the argument referred to in paragraph 70 of the judgment in the Berhe case with a view to establishing that prior to the amendment of s. 22 Children Act by the 2002 Act the accommodation (or provision of housing) provided to W in July and August 2002 was not accommodation for the purposes of the definition in s. 22.  Such an argument would have had a legal and a factual base.  
The consequence of the points in paragraph 25 and their acceptance by the parties
28.	In my view it was correctly accepted that the consequence was that I can declare (i) that W is a relevant child, and (ii) that on attaining 18 W will be a former relevant child.
29.	This has the result that, for example, a pathway plan should be prepared for him and he should have a personal adviser.  The local authority accepted this and that steps to prepare such a plan and appoint such a personal adviser should be taken immediately. The local authority therefore accepted that its latest assessment and decision had to be revisited because it (like the arguments of the Claimant) was wrongly focused on whether the accommodation or provision of housing for W in 2003 was under s. 17 or s. 20, it wrongly set out a care plan under s. 17 and it wrongly did not assess W as a relevant child and provide what a relevant child is entitled to (which includes the appointment of a personal adviser and a pathway plan). 
30.	It also has the results that;
(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 
31.	Unsurprisingly in view of the points made above it was submitted on behalf of the  local authority that the arguments set out in the grounds and the skeleton argument put in on behalf of the Claimant were academic.
32.	Notwithstanding:
(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.
33.	Judicial review is a discretionary remedy and in my judgment, having regard to the way in which the Claimant’s case was pleaded and put, the submission of the local authority that the acceptance of the points made in paragraph 25 hereof rendered further argument academic, is correct.  Accordingly I do not propose to deal with the arguments advanced in the grounds and the skeleton arguments (and the other points raised during the hearing) in any detail.  However I make the following comments that reflect or repeat points made during the hearing:
(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.