England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 May 2008

1. MR JUSTICE BLAKE: This is an application for judicial review in respect of duties that the claimant submits are owed to her under sections 23 and 24 of the Children Act 1989, to which further attention will be given in one moment. The claimant is a young person now aged over 21, and who is to be referred to as "C" pursuant to an order of Silber J made in March 2007 under the Contempt of Court Act for reasons relating to the subject matter of these proceedings.
2. There is a very substantial history to the matter, but for the purposes of introducing the issues the subject matter of the claim that was heard before me today, it is sufficient to say as follows. C was taken into care at a young age by the defendant Council, the London Borough of Lambeth. She was clearly a child with a host of problems and challenges, and as a young person many of those problems and challenges remained unresolved.
3. In about October 2004, with the imminence of her 18th birthday in November 2004 coming on, C was offered and took a tenancy of a one-bedroom flat in an estate (the Oaklands Estate). That was clearly intended to be a discharge of part of an assessment of C's needs as a young adult in respect of her housing, but her housing needs have proved problematic until quite recently and were the subject of a dispute, but they form an important part of the background to the challenge with which the court is presently concerned.
4. It seems that at some point in 2005 -- it is uncertain when -- C left the flat which had been provided for her at the Oaklands Estate. She has subsequently explained to those who she was in contact with and to the court in her witness statements that she left because she was the victim of a serious sexual assault, either at or connected with those premises in some respect. It turns out that C thereafter spent a great deal of time at the home of her former foster mother, with whom she had been living before moving into that flat. She was also in contact with a well-known children's organisation, the Kids Company, and spoke to people there about her problems arising from this assault and the impact upon the suitability of her continuing to live at the estate in question.
5. She appears to have claimed with another local authority that she was homeless at the time she was living with her foster mother, but they did not accept that obligation. She also seems to have been arrested in February 2006 for breach of the peace, but nothing seems to have emerged from that by way of criminal charge or conviction. Housing remained an unresolved issue in her dealings with those who were advising her throughout 2006. Eventually in March 2007 her former foster parent had to require her to leave the premises that she was occupying for her own family needs, and she became street homeless for a short period of time until these judicial review proceedings were commenced in March 2007.
6. On 13 March 2007, Silber J not only made the order to which reference has already been made about anonymity, but directed that the defendant provide interim housing support pending further consideration of this claim for judicial review. It is right to state that originally those judicial review proceedings were concerned with three inter-connected duties said to be owed by the defendant to a former "looked after" child in the field of housing, community care and education and training.
7. The judicial review proceedings continued on 13 August. Permission to bring this challenge was granted by Ouseley J, and the matter had not come for determination before November 2007, which was C's 21st birthday and a significant date in respect of the legislation to which I shall shortly come. Because of concerns that any duties which remained disputed but were said to be owing might expire unless the subject of an earlier resolution before her 21st birthday, an application was made to Bennett J on 12 November, and there, helpfully and pragmatically, it was recognised by counsel then appearing for the local authority, Mr Bhose, who again appears before me today, that if the court was subsequently to find that there had been a breach of any duty owed by the local authority to the claimant before her 21st birthday, then the passage of time with her 21st birthday would not of itself resolve the duty, or prevent the court from granting any relief it otherwise thought it appropriate to grant.
8. The matter therefore remained with the accommodation being provided pursuant to the interim relief of March 2007 until about February 2008, when the defendant authority reviewed the material by then before them and concluded that they did now accept that a duty of permanent re-housing was owed by them to C. That inevitably involves some degree of acceptance of the proposition that the previous housing that had been offered at the Oaklands Estate, and that historically had been said to be sufficient to discharge their obligations to C, whether as a looked after child or a former looked after child or as a homeless person, did not. In the light of the particular facts related to her, it was not appropriate accommodation or sufficient or available to her and hence the recognition that a permanent re-housing duty was owed.
9. By letter of April 2008, the local authority identified their position with respect to the three items in the claim in the judicial review. They say that they accept that a permanent housing duty is owed so that the existence of such a duty has not been the subject of disputed submissions before me today. They further accept that there was a community care duty to make an assessment, which is underway and ongoing, but they remained opposed to the proposition that any duty was owed to the claimant in respect of education and training. It is that issue and that issue alone that has been the subject of submissions that I have heard.
10. Essentially, the claimant says, as of the time of the determination of these proceedings in May 2008, that she wants to attend a course to obtain basic skills, and in particular some basic qualification in mathematics and English at the Lambeth College in September 2008. The purpose of her attending that course and to obtain those skills would be to equip her to start a course as a nursery nurse in the field of child care, where it is understood that she hopes to obtain some formal qualification in the form of a diploma or something similar at that college. Those plans, certainly the first part of the qualifications in Maths and English, are for a period of part-time study of 16 hours a week, and thereafter either part-time study as nursery nurse for two years or full-time study for one year depending upon her abilities and circumstances if that eventuality comes to pass.
11. What the claimant submits is that she requires the support of the local authority with respect to that course of study as a former looked after child because she may be disadvantaged if her social welfare benefit situation were to change during the course of that study in the following way. At present she is entitled to income support, housing benefit and disability living allowance; the latter the court has been informed relating to her continued mental health problems, to which further reference will be made, and that means that she will be fully funded for this course of studies in any event. But if she were to lose her disability living allowance because of the hopeful improvement in her mental health, then she may be in difficulties in pursuing that course to conclusion in the manner that she proposes without the support of the defendant local authority.
12. The defendant local authority essentially submits that there is no duty owed by them to her in respect of such a course of study, because such a course of study had not been identified in a pathway plan that had been adopted before her 21st birthday. I shall return to those submissions in due course.
13. By way of further factual background to the issues in the case, it is appropriate to make references to the pathway plans that had been prepared for this claimant, before dealing with the legislation that explains what a pathway plan is and what it is intended to achieve. Doubtless the advancing age of this claimant in the care of Lambeth had led to a number of documents and plans being prepared, but the court is essentially concerned with five plans prepared between August 2005 and July 2007. Those plans are called the third, fourth, fifth, sixth and seventh plans, but we are not concerned with matters before August 2005.
14. The plans to which reference is about to be made were prepared by an organisation to whom Lambeth had delegated or appointed to perform a number of functions, including the function of providing a personal adviser to children in the claimant's position who were moving on to their 18th birthday and beyond. The significance of that will be examined a little later. However, in August 2005, in a section of the plan dealing with education, training and employment, it was recognised that the claimant was presently unoccupied, and she identified the sort of career that she would like to do in the future as child care, and in response to the question: "Where did you have your basic skills assessed?", she said she was unsure. She wanted to have her basic skills assessed. She wanted to get help with her basic skills, and she wanted to get information about courses, training or job areas, and it was noted that she was interested in pursuing a career in child care. She had at that stage made contact with Kids Company, the children's organisation previously referred to, and the well-known founder and leader of that group, Camila Batmanghelidjh. There were various matters noted in this pathway report, including the fact that the claimant was said to be very stressed out by her current situation with her flat and the need to resolve that, and it is to be noted that as part of the action plan it was to be investigated whether she required legal advice to deal with her future accommodation.
15. The second in the sequence of the pathway plans with which this court is concerned, although it is called the fourth plan, was in February 2006, by which time it is clear she had left Oaklands Estate and was living with her former foster mother. She had done by this stage some brief basic skills courses with both the Kids Company and the Prince's Trust. She was still interested in pursuing youth work, but an alternative interest in artwork as a career activity had now emerged on the horizon, and in response to a questionnaire about occupation, education and training, she said that she needed qualifications to achieve a future career occupation goal, either as an artist or as a youth worker and she needed a diploma to obtain that. She was said to be enthusiastic about the opportunity to participate in education.
16. At the same time elsewhere in that form it was recognised that her independent living skills were poor, and in particular she had poor reading, writing and numeracy skills. That is a constant part of the assessments of her needs at that stage. The plan is revisited and revised six-monthly, as we shall see is required by the regulations, so the next time it comes back is July 2006. She had by this stage been living on and off with her foster mother for some time. The question of her housing needs had by this stage been the subject of representations to the local authority by the Kids Company, and resulting from that exchange, the allegation of sexual assault some time previously had been reported to the police, who unsurprisingly had felt unable to take it very much further forward at this stage. But it is plain that her housing was a matter of real concern to her, combined with a combination of other factors which are reflected in these plans, including poor mental health. There is reference to epilepsy, to post-traumatic stress disorder, to the need to go in for assessment at a mental hospital and matters of that sort, but she still expressed herself as having the need to do basic skills, and at this stage Lambeth College -- no doubt the local college to her area and the defendant's area -- was identified as the place in which she hoped to make good her basic skills deficit, and take a course there for the basic skills course starting in September 2006.
17. The plan was further reviewed in January 2007, and by that stage it was apparent that she had not attended a course at Lambeth College in September 2006. It was recognised that she was due to start for a few weeks a basic skills education on a one-to-one basis. She did not turn up for sessions. She is in the process of completing an assessment by an educational psychologist to identify her strengths, weaknesses and learning needs so that an appropriate educational provider can be identified.
18. In addition to her mental health problems, which have been briefly mentioned in this judgment, the documentation also is revealing about what she says about other dependencies -- smoking, both cigarettes and cannabis, and misusing other forms of drugs, and that she needs to address those matters as well.
19. Finally, in July 2007, there is a further pathway plan, and the final pathway plan and therefore perhaps the most relevant to the challenges in this case. However, it should be remembered that by this stage, July 2007, the claimant was now being provided with interim housing pursuant to the intervention of this court, although her 21st birthday was fast approaching. That pathway plan recognised continuing problems with the Oaklands Estate tenancy -- rent arrears accruing and whether that was sufficient and appropriate accommodation for her to live in -- and reference is made to working that issue out with her solicitors. As to her occupation, it is recorded that she remains undecided, although interested in youth work, and here perhaps for the first time in respect of that it is recognised that if she was interested in youth work, she would need to gain the relevant qualification and also address the requirements of clearance by the CRB and others to do youth work, which might be problematic.
20. Most significantly, in my judgment, this care plan looks at the real failures to get started in attending a basic skills course, and says this:

"[C] made a visit to Lambeth College to talk about attending a Basic Skills course. She was successful in being offered a place, and was asked to attend one day a week initially with a view to starting a proper timetable in September. [C] felt unable to stick with this however, due to housing and mental health concerns. [C] is happy to wait until she has had a period of treatment in a psychiatric hospital before thinking about how to occupy herself. She remains a volunteer at a stable yard, sporadically, which she enjoys and gets a lot from."

21. Elsewhere in that plan it is apparent that she was anxious to get some psychiatric treatment in a hospital for some in-patient treatment, and that is all that she was able to think about at that particular time.
22. With that brief factual history and background to this claim, it is now necessary to identify with greater particularity the duty relied upon that is the subject of the dispute today. Section 23C of the Children Act 1989 makes the following provisions:

"(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'."

I interpolate to say that, after her 18th birthday, she was a former relevant child for the purposes of the potential application of this statute.

23. Sub-section (3) reads:

"(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."

24. Moving to deal with the duration of the duties, sub-section (6) says that subject to sub-section (7), the duties subsist until the former relevant child reaches the age of 21. So duties in respect of housing and other welfare assistance would tend to come to an end by that stage, if they are owed at all.
25. Then sub-section (7) reads as follows:

"(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.

(8) For the purposes of subsection (7)(a) there shall be disregarded any interruption in a former relevant child's pursuance of a programme of education or training if the local authority are satisfied that he will resume it as soon as is reasonably practicable."

26. It is sub-sections (7) and (8) that are the central sections to be considered in this case, although I should set out for completeness the relevant parts of section 24B of the Children Act 1999:

"(2) The relevant local authority may give assistance to a person to whom subsection (3) applies by—

(a) contributing to expenses incurred by the person in question in living near the place where he is, or will be, receiving education or training; or

(b) making a grant to enable him to meet expenses connected with his education or training.

(3) This subsection applies to any person who—

(a) is under twenty-four; and

(b) qualifies for advice and assistance by virtue of section 24(2)(a), or would have done so if he were under twenty-one.

(4) Where a local authority are assisting a person under subsection (2) they may disregard any interruption in his attendance on the course if he resumes it as soon as is reasonably practicable."

27. Those statutory provisions therefore identify when a pathway plan needs to be maintained and for how long it should be maintained, and in particular the limited circumstances when a pathway plan can be required to be maintained after the 21st birthday of a former relevant child has been reached.
28. The substance of what a pathway plan is is dealt with in three sources of assistance to the court: first, a Code of Guidance; secondly, in regulations made pursuant to the Children Act; and thirdly, in at least one authority of this court which recites other learning which I have found of great assistance. The Code of Guidance, which explains the content of the regulations, which I therefore do not read into this judgment, is the Children (Leaving Care) Act 2000 Regulations and Guidance. I assume that that was the Act which added the particular duties to the Children Act 1989, to which reference has been made. Section 8 is headed "Care leavers aged 18–21", the relevant parts of which read as follows:

"3. Section 24B(2) also gives councils a power to assist with the expenses associated with education and training up to the age of 24. For the most part this will apply to young people who do not qualify as former relevant children. However if a young person who had been a former relevant child decided after the age of 21 that they wished after all to take up educational opportunities, the council which had been their responsible authority would be able at its discretion to provide assistance until that young person reached the age of 24, though it would not be under a duty to do so.

...

12. These young people will continue to have a Pathway Plan which will cover the same topics and fulfil the same function as described in Chapter 5. Since this group will normally be significantly more mature, confident and independent than the younger children, responsible authorities should be sensitive to their increasing need to take control in matters such as who should be consulted when the Plan is to be reviewed, and what the Plan is to cover. Where the responsible authority is continuing to provide assistance the Plan will need to be clear what that assistance consists of and what goals it supports. Where appropriate the responsible authority will still wish to encourage young people to be ambitious for their futures, as a parent would be, while being ready to step aside where someone shows that they are capable of taking responsibility for their own life."

...

22. Councils have a duty to assist former relevant children with the expenses associated with education and training. Unlike the other duties, which cease when the young person reaches 21, this duty runs until the young person has completed the programme of education and training agreed with the responsible authority and set out in the Pathway Plan. Since young people who have been looked after are liable to have suffered disruption to their education, they are quite likely to be embarking on Further Education, for example, later than their peers, and this will be reflected in their Pathway Plan. Given that the Plan must be reviewed and revised at least every six months, there is scope to take account of a former relevant child's educational achievement should this qualify them, say, to undertake a degree course and then postgraduate work. The responsible authority would not be expected to provide accommodation and maintenance for those in Higher Education: under such circumstances, the prime funding must come from whatever mainstream sources would be available to support anyone else. However should the young person's welfare or educational or training needs require it the responsible authority would be under a duty to provide assistance such as travel or equipment costs as well as contributing to the expenses incurred by the young person in living near the place where he or she is, or will be, receiving

education or training. Former relevant children in Further Education may not have access to any other help – Income Support and Housing Benefit are not available for those aged 19 and over in full time

Further Education – and in such circumstances the responsible authority would need to provide them

with maintenance and accommodation.

23. In addition, authorities are under a duty to provide vacation accommodation, or funds to secure it to all local authority care leavers in Higher Education who need it. The duty also extends to Further Education courses which require a student to live away from home. The duty applies in relation to all vacations within a course but not any time immediately preceding the first term or after the final term of the course as a whole."

29. The authority that has examined this issue is the case of R(J) v Caerphilly County Borough Council [2005] EWHC 586 Admin; [2005] 2 FLR 860, a decision of Munby J of 12 April 2005. That was a case concerned with a somewhat younger person, a 17-year old person, who lived a very difficult life, but the guidance as to what is the pathway plan and who should prepare it is extremely pertinent to the case in question. The relevant paragraphs read as follows:

"30. It is not part of the personal adviser's functions to undertake the statutory assessment or the preparation of the pathway plan, nor should he do so. The Regulations, in my judgment, show that it is not permissible for him to do so. It is in any event undesirable that he should do so. Part of the personal adviser's role is, in a sense, to be the advocate or representative of the child in the course of the child's dealings with the local authority. As the Children Leaving Care Act Guidance puts it, the personal adviser plays a negotiating role on behalf of the child'. He is, in a sense, a 'go-between' between the child and the local authority. His vital role and function are apt to be compromised if he is, at one and the same time, both the author of the local authority's pathway plan and the person charged with important duties owed to the child in respect of its preparation and implementation.

...

32. I do not seek to criticise Mr S personally, who I am sure has done his best in very difficult and trying circumstances, but there is, as it seems to me, compelling force in Mr Wise's complaints. J is entitled to a personal adviser whose function is just that, and whose function is not obscured and compromised by the conflicts and ambiguities which, unfortunately, cloud Mr S's position. The present situation cannot continue and must be remedied. I will hear further argument if necessary on the form of order if the parties are not able to reach agreement on the appropriate way forward.

...

39. I do not propose to take up time considering the original needs assessment and pathway plan, for they have been superseded by the revised versions produced on 24 January 2005. The defects and inadequacies of the earlier documents are glaring. Three examples - there are many more - will suffice. The pathway plan contained no action plan for meeting J's identified needs for training and employment after leaving Ashfield; it contained no action plan for how his identified needs for support in literacy and numeracy might be met after he had left Ashfield; and it contented itself with the anodyne observation that the local authority would 'continue to explore accommodation options in preparation for [his] release.' It was, as Mr Wise says, hopelessly inadequate. It contained little more than vague aspirations. His criticism is harsh, but I am afraid only too well justified: as a plan to promote J's independence and ensure that he had the necessary support it was little more than worthless.

...

44. In R(AB and SB) v Nottingham CC [2001] EWHC Admin 235, (2001) 4 CCLR 295, as Mr Wise correctly points out, Richards J emphasised the rigour and detail required of a local authority embarking upon an assessment such as this. At the end of the process, what is needed is a document, as Richards J put it at para [20], from which 'it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help'. Striking down the assessment in that case Richards J said at para [43]:

'it was essentially a descriptive document rather than an assessment, and in any event sufficient detail was still lacking both as regards the assessment itself and as regards the care plan and service provision. There was no clear identification of needs, or what was to be done about them, by whom and by when.'

Mr Wise was right to draw attention to those last few words which, as it seems to me, helpfully encapsulate the essence of what is needed of a pathway plan if it is to meet the requirements of the Regulations. The revised pathway plan dated 24 January 2005, in my judgment, manifestly fails to meet these requirements."

30. With that legal and factual background, it is finally time to summarise the claimant's case. She says that the authority has failed in respect of their duties under the legislative scheme just outlined first because her pathway plans were always completed by her personal adviser appointed by the defendant and not by the local authority itself. That indeed was one of the criticisms that Munby J made in the case of J v Caerphilly. That submission is not, in essence, disputed by the respondents.
31. Secondly, it is said that the pathway plans, particularly the last pathway plan before the duty was said to be discharged of August 2007, failed to fully set out her needs, and what was needed to be done by anyone or everyone in order to address her needs in the field of education and training. In particular, two criticisms are made without prejudice to the generality: namely (a) there was no timescale provided for addressing her needs and her training and educational needs; and (b) that there was a failure to connect the absence of educational progress with the housing difficulties, and that in itself reflected the associated difficulties, mental health, behavioural and otherwise that this young person had and still in many respects has.
32. The defendant local authority's response is first that, although there may have been a breach of the statutory duty because it was not the local authority who adopted the pathway plan but the adviser, that breach is somewhat technical because, it submits, the content of the plan would have been no different if the local authority had itself adopted it. Secondly, it submits that the plans were adequate having regard to the adult status of C and the fact that, although these are referred to as pathway plans, they must take C as they find her, and are based upon her wishes and aspirations, rather than imposing objective plans that will be unrealistic to deal with such a needy person.
33. Thirdly, they say that, insofar as the plans have not been more specific or detailed, that is due to C's own failures to address issues and to co-operate with the local authority.
34. Fourthly, they submit that, looking at the plans that did exist before November 2007, there was no plan for educational and training activities to last beyond that date, and so there was no duty to continue to provide for it, as would be required by the sections which I have just read.
35. Finally, it is submitted that since the educational training never started even if it was provided for, it cannot have been interrupted, and so there is no discretion to be exercised under section 23C(8).
36. In my judgment, the claimant's submissions as to the existence of unfulfilled duty in the outstanding area of education and training are to be preferred. There has been a breach of duty before the 21st birthday and relief should be given in this area, alongside those two areas whereby there are to be continuing duties or reappraisals. I reach this conclusion briefly for the following reasons. First, in my judgment a mere recording of the self-aspiration of the need to assess basic skills, to get training, to address them and to enable the person who lacks the basic skills to acquire qualification for employment does not appear to me to be sufficient to constitute a pathway plan because it lacks a sense of either ultimate direction or necessary detail or urgency in the light of the passage of time. I entirely accept Mr Bhose's submission that the aspirations of the former relevant child are the starting point of any pathway plan, particularly where that former relevant child is now over 18 and as an apparently independent adult would have increasing importance as to what she wants to do with her life. However, the very purpose, it seems to me, of this legislation is to recognise, as Munby J has in his judgment, that children who enter 18 and beyond with some of the disadvantages that looked after children and children in care generally have, but with the kind of enormous disadvantages that this particular claimant has by reason of the combination of factors to which reference has been made, need particular assistance in guiding their attention to what is realistic as to what they should be achieving and how they can go about achieving it if they wish to meet their goals, however modest or grandiose they may be. That would require, in my judgment, some detail as to what qualifications would be needed to be obtained and roughly by when if a diploma as a nursery nurse or in child care generally was to be pursued as a realistic employment goal for this claimant. This is not a criticism in this case of the personal adviser, who no doubt works with and seeks to motivate and to give advice to the claimant, just as it was not in the case of J. In J there was some concern expressed that the personal adviser in making the plan that it was for the local authority to make may not have been seen as independent of the local authority who employed them. In the present case, the consequence of the personal adviser making the plan is a different one, in that it results in the plan being imprecise as to education and training and insufficiently rigorous as to be the foundation for local authority duty to support. In my judgment the plan needs to have the qualities of objective assessment so that all parties -- the local authority, claimant and personal adviser -- can see what it envisages and whether progress is being made, and if not, why not.
37. Secondly, if despite those observations it is concluded that this was a sufficient plan because it identified a deficit in basic training, then it is a deficit that remains to be implemented and has always remained to be implemented, rather than something that has been begun and abandoned. It is striking that there seem to be no timescale as to when any basic skills should be begun to be acquired, and insofar as the failure to start courses at Lambeth College were noted, the personal adviser immediately recognises that that is said to be to do with the continuing housing and mental health problems that the claimant had at the time. It may be that if this had been a plan that had been adopted by the local authority, a more robust approach might at some earlier stage have been taken. We simply do not know, and that is not to encourage such an approach if the evidence would not have justified it. But the fact of the matter is that the plan, having been drawn up by the personal adviser, was in such loose terms as to when any target or milestone was to be achieved, when it was to begin, that it remains as unimplemented as to its first rung today as it was when it was being first formulated in August 2005, although quite a lot of time has passed since then.
38. The third reason why I conclude that relief ought to be granted is connected to the second reason, namely that in the plan itself there are frequent references to the need to address her housing in particular, as well as her mental health, before she was able to focus upon educational achievement which she recognised she needed to do. In this context the claimant says that the housing problem was capable of being resolved and only capable of being resolved by this defendant authority itself recognising that they owed her a duty of permanent housing, which they did not do until shortly before the final hearing of this claim in February and April of 2008, and in particular they had not done it at the time when she was due to start on her aspirations at Lambeth College either in September 2006 or September 2007.
39. In the particular circumstances of this case, and with the nexus to a duty of housing now recognised to be owed but not recognised to be owed at various previous points in the chronology of events in this case, and the extent to which the plan itself recites her housing problems as a reason why she was unable to proceed with her educational ones, in my judgment it would be artificial to remove the educational and training needs from the reassessment and continued assessment that should have happened before her 21st birthday, as recognised in the two other areas no longer subject to challenge -- housing and community care.
40. Linked to all three factors is the consideration that, on any view, the plan that was adopted was adopted by the personal adviser rather than the local authority itself. But this is not, in my judgment, a sterile debate about form, but goes to the substance as to what should have been in the plan and what would have been in the plan if the robust, detailed and explicit duty identified in the case of J and the regulations had been applied to this challenging case.
41. I recognise of course that there can be no duty of perfection in such a human centred area of the law as this one, and I recognise that there are limits to what the best local authority can do with respect to someone whose position and needs are such that they simply utterly failed to co-operate. But I draw attention to the observations of Munby J, again in J v Caerphilly, at paragraph 56 of his judgment which reads as follows:

"56. What I should say is this. The fact that a child is uncooperative and unwilling to engage, or even refuses to engage, is no reason for the local authority not to carry out its obligations under the Act and the Regulations. After all, a disturbed child's unwillingness to engage with those who are trying to help is often merely a part of the overall problems which justified the local authority's statutory intervention in the first place. The local authority must do its best."

No more than its best of course is being sought in this case. But its best seems to me to require to engage in the specifics of how this needy claimant is to obtain the basic skills deficit that she has, in particular in the field of maths and English that would generally be considered a necessary pathway, using that word advisedly, to any other form of formal qualification, and at least to most forms of employment of any satisfying or durable nature.

42. In my judgment, there seems to have been recognition that her skills were deficient by herself, her adviser and the local authority, assuming that they read and accepted these reports as they came through. But a concrete plan, to address it at a particular time in a particular way, seems to have been missing. Insofar as the only concrete plan was Lambeth College, then it seems to have been recognised that her housing and mental health difficulties prevented her starting that plan. In my judgment, therefore, this is not a case of someone in respect of whom there was no form of educational duty which survived the 21st birthday. There was either a sufficiently vague plan to proceed by way of basic skills training at Lambeth College, and that remained to be implemented with the assistance of the local authority exercising its duties under the legislation, or if, more realistically, those elements were so vague as to not be able to constitute a plan for the purpose of the enhanced duty beyond the age of 21, then the absence of such a plan was entirely the consequence of the failure to properly assess those needs and to spell them out, for which the defendant is in law responsible. Either way, the attempt to terminate obligation in this particular area is, in my judgment, unsuccessful, and something remains to be done. In my judgment, the something that remains to be done is to amend those pathway plans for a rigorous and realistic set of proposals to achieve training for a diploma in child care and, if necessary, to support those proposals if circumstances turn out that funding as an adult is defective in some way. That will put the former relevant child in the roughly similar position as someone who has not had the disadvantages in life that this claimant has had, but who can turn to an adult and parent to turn to for support in times of difficulties in the vital task of achieving educational qualifications in order to be self-sufficient in adult life. This is not to say these duties last forever, or that a failure by the claimant to proceed promptly and steadily hereafter with her training will not enable the local authority to conclude that their obligations are discharged. But in the light of the circumstances as they were before her 21st birthday I do not conclude the duty had been discharged.
43. For those reasons, I therefore allow this application for judicial review, and I will hear the parties on what relief might be relevant to accommodate that judgment.
44. MR BHOSE: I am grateful. My Lord, there is one slight matter in my Lord's judgment. It might be my hearing actually. When my Lord read out section 23C(4) of the Act, within both sub-sections there is a reference to parts of section 24B(2), and I did not hear my Lord make reference to those. It may simply be my hearing.
45. MR JUSTICE BLAKE: Yes, you are quite right. I will direct that the transcript completes the citation of the whole of 24. I thought it would probably get even more lost if I was proceeding by way of oral recitation of part and others. But, yes, certainly when I did read out 23B(4), I edited A and B, but what I edited out should be replaced in the transcript.
46. MR BHOSE: My Lord, in terms of relief, I spoke to my learned friend, Mr Presland, before lunch and also my learned friend Mr Dubin. My Lord, subject to your Lordship's direction, shall I read out what is proposed?
47. MR JUSTICE BLAKE: Yes. Is this consensual or is this still one sided --
48. MR BHOSE: It is consensual --
49. MR JUSTICE BLAKE: Then read it out to me.
50. MR BHOSE: It would be firstly:

"Upon the defendant having accepted the duty to the claimant pursuant to section 1(9) and 3(2) of the Housing Act 1996 on 5 February 2008, and upon the defendant having accepted a duty to carry out a community care assessment of the claimant's needs, it is ordered that:

(1) within 28 days of today the defendant is to undertake a review of the claimant's pathway plan, and thereafter keep the plan under review;

(2) the defendant is to continue the appointment of a claimant's personal adviser and notify his or her identity within 14 days;

(3) the defendant is thereafter to comply with the duty pursuant to section 23C(4)(b) of the Children Act 1989; and

(4) there be no publication of the claimant's name, and the claimant be known in these proceedings simply as C."

51. MR JUSTICE BLAKE: Yes, certainly. I think that appears to encompass all the matters which were in the forefront of my mind before 1 o'clock.
52. MR BHOSE: Obviously so far as we are concerned, it is a matter for us now to go away and complete the pathway plan with the claimant. We will be doing it on the basis of it being a one-year part-time course in English and maths, and then a two-year part-time course in nursery nursing. Of course the position remains that, if the claimant does not commence the education or does not continue, then she is at risk of course of the duty being brought to an end, subject to interruption --
53. MR JUSTICE BLAKE: I have not attempted to grapple in my judgment -- in which I had enough to grapple with -- with what the exit strategies are.
54. MR BHOSE: And everyone recognises that my Lord cannot determine that today; it depends on what happens after today.
55. MR JUSTICE BLAKE: Quite. When I revise the judgment I might add a sentence in it, which I have not yet formulated, to make that context clear, but I thought it would be quite important to get this judgment out.
56. MR BHOSE: I am very grateful. I think the only other matter is costs.
57. MR JUSTICE BLAKE: Yes, Mr Dubin?
58. MR DUBIN: My Lord, on behalf of the claimant, we would simply say that costs should follow the event. In terms of substantive relief, the claimant has obtained what she sought. I am also asked to ask the court that if there is any more detailed argument than that, that it be written submissions.
59. MR JUSTICE BLAKE: To adjourn that, yes.
60. MR BHOSE: My Lord, all that I can say is that we did concede the point as to accommodation in February, community care subsequently in November. This is a difficult issue. We have sought to deal with this as effectively as we can. My Lord has seen the November letter.
61. MR JUSTICE BLAKE: I am not gainsaying that it has certain difficulties. This is not a judgment of seeking to castigate, but does it not go with the event?
62. MR BHOSE: My Lord, all I say is that it is a matter for my Lord's discretion. My Lord could order no order as to costs, but I accept that broadly the claimant has --
63. MR JUSTICE BLAKE: Presumably the claimant is CLS funded?
64. MR DUBIN: Yes, my Lord.
65. MR JUSTICE BLAKE: I rather fear that -- this is not a penalty for the Council agreeing the two other areas, but rather this issue remained unresolved and I concluded, on the balance of submissions, the claimant succeeds and so I think costs should follow the event.
66. MR BHOSE: My Lord, I did not refer to CLS funding. I know it is irrelevant.
67. MR JUSTICE BLAKE: Yes.
68. MR BHOSE: My Lord, shall I therefore draw up a minute?
69. MR JUSTICE BLAKE: I would be extremely grateful if you could. I shall be in the building probably until about 5 o'clock. I will not be here tomorrow, but I will back on Thursday.
70. MR BHOSE: My Lord, I will send it by e-mail with my learned friend, Mr Presland.
71. MR JUSTICE BLAKE: I will certainly sign it off during the week, but it should get to me this week because next week there are a whole lot of other things. Very good, if those are the outstanding issues resolved, I just have to thank you very much for your skeletons, your advocacy and your guiding me through a rather novel and interesting part of the law.