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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AH, R (on the application of) v Cornwall Council [2010] EWHC 3192 (Admin) (03 December 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3192.html
Cite as: [2011] PTSR D23, [2010] EWHC 3192 (Admin)
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QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
SITTING AT CARDIFF CIVIL JUSTICE CENTRE
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
2 Park St Cardiff South Glamorgan CF10 1ET |
||
B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
| THE QUEEN | ||
| (on the application of A.H.) | Applicant | |
| And | ||
| CORNWALL COUNCIL | Respondent |
____________________
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
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- In these proceedings the Claimant alleges an unlawful failure by Cornwall Council to provide accommodation for him in accordance with his needs. This is judgment given upon a rolled up hearing in respect of his application for permission, and, if permission is granted, any substantive decision.
- In September 2009 AH had just turned 17. There were arguments at home. In outline, on 28th September 2009 he had interview with the Defendant's housing services with a view to accommodation outside his home; in late October 2009 he was accepted at and started to live at St Petroc's which provides accommodation and support for the single homeless; St Petroc's so informed Cornwall Council's Social Services Department in October 2009 and again in January 2010. In February 2010 by letter solicitors for AH sought of Cornwall Council urgent consideration of his accommodation and he was the subject of assessment by them in March 2010; having been required to quit St Petroc's in March 2010 he moved to live with his girlfriend's parents. Application for judicial review was issued on the 19th May 2010.
- The original claim form seeks to challenge
- In skeleton submissions and oral argument, the heart of the Claimant's case has been under Section 20(1)(c) Children Act 1989. It is argued that the Claimant satisfied the provisions of Section 20(1)(c) at all relevant times, and in any event in March 2010 when Cornwall Council did carry out an assessment of him, and that any decision to the contrary must be and was perverse. Thus in detailed grounds it is asserted that "no Local Authority properly directing itself as to the law could find otherwise than that the Claimant is entitled to accommodation under Section 20 of the 1989 Act".
- Section 20(1)(c) Children Act 1989, so far as is material it provides
- In addition, in the detailed grounds, the Claimant argued that
- The procedural history is this. On 19th May 2010 application for judicial review was made.
- AH became 18 years of age on 3rd September 2010. As of that date he was no longer a "child" within the terms of Section 20(1)(c). However these proceedings are not academic. If on his 18th birthday AH had been a child accommodated by the Local Authority under Section 20(1)(c), and had been so accommodated for 13 weeks or more, he would be entitled to the benefit of a number of obligations under the Children (Leaving Care) (England) Regulations 2001. Those services include the appointment (or continuing appointment) of a personal adviser, preparation and implementation of a pathway plan, and continued review of it, and assistance with course of education or training which may extend to 21 or indeed to 24 years of age.
- Accordingly in detailed supplemental grounds, the Claimant sought declaration that he was a child in need who was eligible to be accommodated under Section 20, Children Act 1989 and so should have been looked after by the Defendants since September 2009 and/or October 2009 and/or February 2010 and/or 8th March 2010, and should have been so accommodated by the Defendant for at least 13 weeks before he became 18; and accordingly was entitled to the appointment of a Social Worker, a personal adviser, and to the preparation of a pathway plan. Further or in the alternative the Claimant sought a declaration that at all material times since September 2009 he had been homeless and in priority need; and that a mandatory order be made that the Defendant provide him with suitable accommodation under Section 184 of the Housing Act 1996 within 21 days.
- It is now appropriate to set out in essence the history of actual accommodation of AH. In order to weigh the whole of the circumstances a more detailed chronology is necessary, but for brevity and clarity I here set out the critical dates of accommodation [and interview for accommodation] while relegating the detailed chronology to an Appendix.
- The application of section 20(1)(c) Children Act 1989 entails a series of judgments, as set out by Ward, LJ in R(A) –v- Croydon London Borough Council (2009 LGR 24 para 75) and approved by the House of Lords in R(G) –v- Southwark LBC (2009 1WLR1299 at 1307 paragraph 28).
- I shall need to return to these in more detail, but it is convenient to set them out citing for simplicity, the relevant questions:
- Is the applicant a child?
- Is the applicant a child in need?
- Is he within the Local Authority's area?
- Does he appear to the Local Authority to require accommodation?
- Is that need the result of …..(c) the person who has been caring for him being prevented from providing him with suitable accommodation or care?
- What are the child's wishes and feeling regarding the provision of accommodation for him?
- What consideration (having regard to his age and understanding) is duly to be given to those wishes and feelings?
- The initial assessment of AH was made by the Cornwall Council in March 2010. As a result of that assessment, and as set out in it, it is common ground that AH satisfied each of the questions 1 to 3 above. He was in law a "child" (he was then 17.5 years old); he was a "child in need" (the initial assessment was that he was "a child whose vulnerability as such they are unlikely to reach or maintain a satisfactory level of health or development without the provision of services", Bundle B48); and he was within Cornwall County Council's area.
- Section 20(1)(c) refers to "the person who has been caring for him being prevented…… from providing him with suitable accommodation or care". It is clear that the House of Lords has approved a broad approach to the interpretation of when a parent is "prevented" from providing suitable accommodation or care.
- Such is expressed by Baroness Hale in R(M) –v- Hammersmith and Fulham LBC House of Lords in an opinion which other members of the house agreed (2008 1WLR 535 at 548 paragraph 43).
- For AH it is contended that the approach of the Local Authority here was fatally flawed: the reality is that there had been a breakdown in the relationship between AH and his mother such that he was not able to live at his mother's home.
- A letter from his mother dated 5th November 2009 states
- As a matter of detail, solicitors for AH referred to this in the "letter before claim" dated 4th March 2010, and Ms Jackson of Cornwall Social Care Legal Services replied that 'the Social Worker does not have sight, nor does [she], of that letter" in the reply of 9th March 2010 (respectively Bundle C7 and C15 at C16). However the initial assessment itself recorded (Bundle B48) "[Ms Cressy] was not in agreement that she is prevented from caring for A citing relationship and communication breakdown. A has also cited relationship breakdown as the reason for him not living in the family home. (Bundle B44 at 48) and further records, in passages on which Cornwall Council relied in correspondence thereafter, "Ms Cressy says that she feels that A can look after himself and has no concerns about this. Ms Cressy says A cannot come home as the arguments upset his siblings. She hopes he will get the support he needs but did not feel Section 20 accommodation by the Local Authority would be helpful for [A]".
- Therefore, says Counsel for the Claimant, this is an open and shut case. AH was unable to continue to live in his own home because of a breakdown of his relationship. On the wide construction of "prevented" approved in M –v- Hammersmith and G. v. Southwark it was perverse to reach any other conclusion than that the requirements of section 20(1)(c) were satisfied.
- I turn first to the law. It will be noted that the requirement to fulfil Section 20(1)(c) is that the Local Authority shall provide accommodation for any child in need within their area
- First, the decision maker is the Local Authority, and the duty arises where it appears to the Local Authority that the requirement is "as a result of" the person who is caring for him being prevented from providing him with that accommodation or care. The process is one of value judgment on the part of the local children's authority –
- Second, the House of Lords in discussing the series of judgments which I have set out as 1 to 7 at paragraph 12 above, states this
- Next, I turn to the individual facts, and the assessment made by the Local Authority in this case.
- There are certain disputes of fact between the parties. These include whether AH refused and did not wish to be accommodated as a looked after child within Section 20; whether he was deemed unsuitable for accommodation at Thornton House, or was unwilling to accept it; and, insofar as it is question of fact, whether Pendean House was acceptable or wholly unsuited to and therefore an inadequate form of accommodation for his needs.
- Counsel for the parties acknowledged the existence of these disputes of fact, but were reticent as to the manner of resolution, if any. Briefly, Counsel for the Defendant referred to the possibility of further investigation under Section 26 Children Act 1989, but that appears to me to be a process of continuing review, rather than some appellate or fact finding exercise. As is observed by the author of Fordham on Judicial Review "17.3 Judicial Review has often been said to be unsuitable for deciding disputed facts. Undeniably in general: 1. Questions of fact are for the Defendant body; 2. A fact adjudication alternative remedy will be preferable; and 3. Judicial Review claims with factual disputes can be transferred out of CPR 54." Circumstances may arise where it is necessary to order a fact finding exercise, or to hear witnesses, but it is not generally necessary or appropriate to resolve disputed facts and in my judgment for reasons which will appear, such is not required here.
- The first dispute is whether the Claimant was willing to be a 'looked after child'. The simple fact is that the perception of those dealing with him from the Local Authority in March and April 2010 was that he was not so willing (see letters of 9th March 2010 at C16 and email of 7th May 2010 Ms Jackson to AH's solicitors bundle C27); but from at least 11th May 2010 his solicitor stated that he had not refused to become a looked after child on a temporary basis or otherwise (email 11th May 2010 at C30 and letter 13th May 2010 at C40); and thereupon the Local Authority made it clear that they were prepared to make further assessments of AH (letter 12th May 2010 C32).
- There is no doubt that AH has strongly expressed a preference, in effect at all relevant stages, for independent accommodation of his own. A flat, of his own, without restrictions, is what he would really wish. Prior to 11th May 2010 it was for the local authority to form a view, and in the light of the whole circumstances to which I refer below, the view which they formed as to his willingness to be a looked after child was, in my judgment, a reasonable view. After that, they expressed openness to further assessment.
- The second dispute is that in his witness statement dated 23rd April 2010 AH states that he had a meeting with the Foyer about 15th April 2010 and was declined supported accommodation 'because he was deemed to be an unsuitable candidate for supported accommodation'; whereas (according to the statement of Julia Balston the social worker who was allocated to the Claimant) the manager of the Foyer disputed this to Julia Balston and stated that during the interview AH 'made it very clear to him that he did not want supported accommodation and hence a place was not offered' (her statement paragraph 21 B212 at 216). First, this was contradictory information which it was for the Local Authority to evaluate and consider. Secondly, the reported account of the manager at the Foyer appears much more closely to accord with the stance adopted by AH and his solicitors throughout that there should be independent accommodation, alternatively supported accommodation but with the minimum of restriction upon his activities in such accommodation.
- The third dispute is that on behalf of the Claimant it is asserted that Pendean House, where he had interview and at which he was offered accommodation by the authority in July 2010, was inappropriate to AH and plainly so. The Claimant seeks to make this good by (i) by reliance on asserted observations Mr Alan Willoughby, a home manager for the Defendant (ii) the independent report of Mr Yeadon in these proceedings and/or (iii) on inherent unsuitability to his age and condition.
- As to (i), the Claimant relies upon an Attendance Note taken by a Miss Houghton paralegal at AH's solicitors on 30th July 2010 in conversation with Mr Willoughby. The stance on behalf of AH is, and has been, that there were grave concerns about Pendean being suitable.
- I do not recite the whole of the Attendance Note but it purports to record Mr Willoughby as asking why AH was being offered that placement "when it is temporary and not suitable". Quite apart from the surprising circumstance in which a representative of AH's solicitors was approaching Ms Jackson's client without consent, I am unimpressed by the content of the Attendance Note. As it records, Mr Willoughby is the lead children's home manager for East Cornwall. As it records, Mr Willoughby did not meet AH when he visited the home at Pendean, or at all. As is plain, Mr Willoughby had no responsibility for the decision to offer placement, or involvement in it. Any comments which he may have made, were being made in the context of concerns expressed by solicitors for AH.
- Moreover, Sharon Wood (Senior Manager of Complex and Acute Services, Children's Department, Cornwall Council) in her statement of 22nd October 2010 states this
- Against this background it would be remarkable for the Court to embark upon a fact finding exercise by hearing evidence from Mr Willoughby or to draw inference from the absence of a witness statement from Mr Willoughby, who was reported to be on leave at the time of the hearing before me.
- As to (ii), it was contended in argument that Mr Yeadon was supportive of the Claimant's case that Pendean was unsuitable to meet his stated needs. Taken at its highest, any criticism by Mr Yeadon, is somewhat wan. He says only "I do not seek to comment on the dispute between the parties as to the nature and scope of the provision at Pendean, save that in general terms, residential provision is usually indicated only for those children (and sometimes young people) who for whatever reason lack the level of insight and judgment about their lives such as to mean that they need complete or near complete adult supervision, often specialist and skilled in nature".
- As to (iii), it was contended that since AH was close to being an independent young adult, the regime at Pendean was unsuitable. It was asserted that there was a failure on the part of the Local Authority lawfully to take into account AH's wishes and feelings towards the provision of accommodation for him, and as to this,
- Although strictly speaking it is a different matter whether due consideration was given to the views of AH, this overlaps with the inherent suitability or unsuitability of Pendean, and it is convenient to deal with this here.
- It is apparent that AH has throughout had a strong view as to what was appropriate for him.
- The first issue is whether adequate account was taken of his views.
- It is provided by Section 20(6) of the Children Act 1989 as amended that,
- This requires the Local Authority "to give due consideration" to those wishes and feelings. It does not require them to implement them. I note the observations of Dyson, LJ (as he then was) in R(Liverpool City Council) –v- Hillingdon London BC (2009) EWCA Civ 43 at paragraph 32 to 33
- I have the strongest impression that AH – or perhaps AH as advised and guided by his solicitors – has wished to have, and believes that at his age he is in effect entitled to have, the determinative say. (Miss Balston records a strongly expressed view by AH that he did not like Pendean and it would not help him at all, there was not enough compromise, but that in a telephone conversation on the same day as I have recorded above he stated "I'm not saying I won't go there, I'm waiting for my solicitor to tell me what to do").
- The view is invited that Pendean House was self-evidently unacceptable because of the extent of restrictions on AH if he were to be there. Mobile phones had to be handed in between 10pm and morning; there were restrictions on hours of activities.
- I cannot and should not ignore that two experienced Social Services professionals (Miss Balston and Ms Wood) have formed the view that Pendean House was and would have been suitable, or was and would have been suitable for the purposes of assessing AH.
- First, if section 20 placement were to be taken up it had been expressly stated by the Defendant that it would provide accommodation "in a residential setting, undertake an assessment of him and identify the best chance that your client would have of successful transition to independence (letter 12th May 2010). If Pendean were used for assessment of AH it did not follow that he would be there on an indefinite basis.
- Second, in my judgment it is inevitable unless resources are unlimited that it was for the authority to contemplate the competing requirements of AH and others at such residential accommodation, when considering whether to relax the rules as solicitors for the Claimant strongly argued. I have considered whether the expressed view of the Defendant on this was unreasonable or over rigid: Miss Jackson wrote,
- The second issue is whether Pendean was inherently unsuitable such that it should not have been inflicted upon AH as an offer he would inevitably, and reasonably, refuse. In my judgment, as may be apparent from the review above, this cannot be said, particularly if his stay there might have been for a period of assessment only.
- Further, and overlapping with this issue, in my judgment the contentions fall well short of justifying any conclusion that the Local Authority failed to give due and proper consideration to AH's wishes and feelings as to the type of accommodation he wanted.
- In the assessment of 8th March 2010, the allocated Social Worker recorded this
- Adequacy of the assessment. Before going further, I need to consider the adequacy of assessment by the authority, in particular in that of 8th March 2010 (a) in process and (b) qualitatively.
- The Claimant contends that there should have been initial assessment of AH when St Petroc's made contact with Social Services on 29.10.2009 and again in January 2010. This may be, but St Petroc's is described by Sharon Wood Senior Manager of Complex and Acute Services Children's Department Cornwall Council as "a well established and professional organisation providing accommodation and support for the single homeless. They are well established as a well known voluntary sector organisation and therefore would have been well aware of the need if appropriate, to make known to Children's Services any safeguarding or child protection concerns" (statement 9th June 2010 bundle B59 at B60). Her chronology states that on 29th October 2010 there was
- I turn therefore to that initial assessment. The Claimant contends that it was an inadequate assessment, either in itself or in that it did not progress to a core assessment and/or in that was on its face perverse in its conclusions.
- In making such an assessment, the Local Authority is required to act under the general guidance of the Secretary of State (Section 7 Local Authority Social Services Act 1970, Section 1 and Schedule 1). Guidance issued under Section 7 includes the "Framework for the assessment of children in need and their families (2000)"; and, for convenience to refer to it here, "Provision of accommodation for 16 and 17 years old young people who may be homeless and/or require accommodation (2010)" "the Joint Accommodation Guidance". (I need not here give further citation of the statutory structure under which that guidance is given, which is set out in the Grounds of the Claimant at bundle A17).
- The Grounds of the Claimant, and Supplemental Grounds, do not expressly state but imply, and it was argued orally, that there should have been a core assessment of the Claimant. There was an initial assessment, but not a core assessment.
- However the guidance which is provided by the framework is as follows
- It is plain from these extracts that it is the Local Authority which is to evaluate these matters and to make decisions as to whether to progress to a more detailed core assessment.
- It seems to me that the criticism of the initial assessment of being unlawful by its inadequacy is not well founded.
- These are matters of evaluated judgment. In my view the Framework document itself recognises this. The Defendant contends in skeleton argument that it is an established public law principle that public bodies exercising statutory discretions can decide for themselves what factors and evidence they should consider, before reaching their decision. In my judgment the structure and content of the Framework document reflect that approach.
- It remains of course necessary that in approaching the exercise of their statutory duty under s20 they must not fetter their discretion by an inappropriate policy or limitation, or fail to take account of relevant circumstances, but subject to that the question is whether it appears to them that the criterion is fulfilled.
- In the particular field of challenge to a decision under Section 20 Children Act the highest courts have taken the same approach, see Baroness Hale in G –v- Southwark LBC (cited above) as have other courts, eg.
- I respectfully fail to find in the contemporaneous materials and correspondence, or records, or Mr Yeadon's report, that which significantly undermines the adequacy of the initial assessment of AH as a matter of process.
- It may be a nice judgment which is required of an authority in any given case whether the move by a person of this age is the product of a breakdown such as prevents him continuing to live at the parental home or the expression of, and "the result of", his wish to live independently.
- In my judgment there was material suggestive that his move from his parental home was an expression of that wish, which I consider further below.
- Did the Defendant fetter their exercise of judgment by being wedded to that initial view? The correspondence on the part of the County Council is in my judgment simply inconsistent with an unwillingness to review their position on further assessment of AH, and to review the section 20 position, as is express in their letters of 29th April, 12th May, 9th July and 29th July 2010.
- Still less can I find any trace of the Defendant's treatment of the Claimant being to avoid assessment of him, or to do so as "part of a policy calculated to evade its duties towards him" (Claimant's Detailed Grounds paragraph 62 bundle A34).
- I turn to consider whether the Defendant was misled by its record of what AH's mother said, in particular at the time of initial assessment in March 2010; or by its own written policy.
- Some parts of the evidence on behalf of Cornwall Council do suggest that the Local Authority relied on the mother's expressed dissent that she is prevented from caring for A. This would not answer whether within the wide construction of s20(1)(c) she was 'prevented from providing him with suitable accommodation or care' (see above). There are references to this part of the initial assessment in letters dated 12th May 2010 at C32 and 2nd August 2010 at C68. The latter states, "it must not be forgotten that A does have a perfectly able parent with parental responsibility who has made it expressly clear that she does not consider that A is prevented from living at home".
- The witness statement of Sharon Wood Senior Manager of Complex and Acute Services Department of Children Cornwall Council includes this,
- Counsel for the Claimant also relies upon the draft policy of Cornwall Council exhibited by Ms Wood in her second statement. This is a "Housing and Children's Schools and Families (CSF) protocol for 16/17 year olds". It is headed as effective from 1st October 2010. It is stated by Ms Wood to have been substantially amended and revised from an earlier draft housing protocol provided to the Court (see her statement at paragraph 3 bundle B199 at 200).
- I will cite in full what it describes as
- Where a young person with a mental capacity to make the decision has been choosing to live independently without anyone caring or taking parental responsibility for him/her, the young person will probably not satisfy the Section 20 criteria.
- A young person will be considered to have been living independently for some time (as a guide for 6 months or more) and it can be clearly ascertained that they are independent. For instance, they have employment, somewhere to live, have been managing their own bills and personal finances and have been looking after themselves in their own accommodation without anyone helping them. In this case their reason for becoming homeless would be something other than due to a support need (for instance a relationship breakdown or a landlord deciding to sell their privately rented accommodation, etc) (emphasis supplied).
- The young person does not want to be Section 20 accommodated and become a 'looked after' child (this will involve consideration of the young person's competency to make this decision and probably advocacy or legal advise to consider whether best interests are being served).
- If this purports to state, or to suggest, that in every case of a relationship breakdown satisfaction of section 20 is excluded, it would be wrong in law, and inconsistent with the reasoning and wide interpretation given to "prevented" in Section 20(1)(c), on the above authorities.
- It seems to me that neither criticism fairly represents what the Local Authority in this case did nor what the Local Authority in fact considered.
- The theme of the Defendant's witness evidence is that AH has consistently made and followed a course of seeking fully independent accommodation where (as virtually a young adult in his own eyes) he should be free from restrictions placed by others. Illustratively, in the assessment of March 2010, having set extracts out for completeness above, it is included that "he has lived independently from his mother for 5 to 6 months"; that "A says he can live independently"; and that his mother feels "A can look after himself".
- In my judgment there is and was a body of material which the authority were entitled to consider as evidencing that his move from his parental home was an expression of a wish to live independently.
- The Social Worker allocated to him, Julia Balston, (with whom, as I was told by counsel for the Claimant during argument, he has maintained a good relationship throughout), states at bundle B215,
- Was this is an uncorroborated or scantily supported view, or was there contrary material such that the view could not be supported? On the contrary, in my judgment, there is considerable material, strongly reflected in the contemporaneous correspondence between solicitors for AH and the Defendant, to show his own strong wish to be accommodated independently, capable within the reasonable judgment of the authority as being interpreted as the dominant reason why he was not, and had not been, living at home.
- In forming this view I have considered the correspondence with care both as to the representations made in it by solicitors for the Claimant, and the responses by the Defendant. For brevity in the main judgment, I relegate to an Appendix that correspondence. In my respectful judgment it speaks for itself.
- At the hearing itself, copies were produced of internal documentation of Social Services as to the contact made with them on 29.09.2009, 13.01.2010 (St Petroc's) and initial assessment of 8.03.2010. The latter included a child in need (CIN) child/young person plan. (I am satisfied there was no impropriety in the late production of these copies. I was told that everything imparted to Social Services is recorded on the computer record including names and sources of information, that there are Data Protection Act responsibilities, and a Data Act Protection Department and Officer who are required carefully to check the internal documentation before copies of it are disclosed unredacted, or redacted from names as necessary. In fact here no redaction was necessary).
- The documents as to 29.10.2009 and 13.01.2010 do not appear to me to take matters any further than the documentation which already exists. In relation to 8.03.2010, Counsel for AH drew attention to the entry in the CIN plan "identified developmental need, strength or difficulty: "A is not living in his family home following a relationship breakdown with his mother and has presented as homeless" how will these needs be responded to: "A to continue to be supported by Ms May, Housing Options, to be provided with accommodation and, perhaps planned outcomes "A to have accommodation". It was said that this was the Claimant's case in a nutshell, he was homeless, he was homeless following a relationship breakdown with his mother, he needed accommodation and was to be provided with it, but moreover it was shuffled off on to the Housing Department as a homelessness matter.
- Counsel for the County Council contended that the fact that contact with Housing Options was contemplated within the context of a properly formulated Child in Need Plan does not mean that there was not proper consideration of whether there was a Social Services duty to provide accommodation under Section 20.
- I respectfully prefer the contentions of Counsel for Cornwall Council. The reference to accommodation was expressly in the context of a CIN plan. The evidence of the professionals involved for the Defendant is that they considered AH's case as to whether he satisfied the need for Section 20 accommodation but considered that it did not; or following further representations, that such might be the subject of further assessment following admission to residential accommodation under section 20 if he was willing.
- In Supplemental Grounds the Claimant contends that Cornwall Council unlawfully fettered its discretion by failing to give any or any lawful consideration to the provision of alternative accommodation more suited to the Claimant's age and level of independence (Bundle A62). I am unable to infer from the evidence that they failed to give any consideration, and still less that they failed to give any lawful consideration.
- In my judgment the challenge to the decisions of Cornwall Council under section 20(1)(c) Children Act 1989 fails on each of the grounds contended for.
- Homelessness. If the Claimant was not a child within Section 20(1)(c), then (and only then, see M. v Hammersmith LBC (2008) 1WLR 535 HL paragraph 15 at p540), he was as a 17 year old in priority need for accommodation under the Housing Act 1996 (Homelessness (Priority Need for Accommodation) England) Order 2002. As to how needs should be addressed there was statutory guidance Provision of accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation. As to the type of accommodation that guidance provides at paragraph 2.1.
- The Claimant contends that Cornwall Council (who are also the Housing Authority) have
- This aspect of the claim is slightly more troubling.
- In the original Detailed Grounds, the Claimant contended
- This contention is incorrect.
- It was on 6th July 2010, on leaving the home of his girlfriend's parents, that AH moved to the bed and breakfast accommodation at Penzance. Unshackled by the delay involved in considering whether s20 accommodation was required, this appears unsuitable on anything other than a highly temporary basis. The Secretary of State considers that bed and breakfast accommodation is unsuitable for 16 and 17 years old. The accommodation here satisfies the bare need for a roof over his head and basic accommodation; and since it is in Penzance, some access to Truro the natural home of AH's affections and education is manageable, but there is an element of isolation to it and the description by himself and by Mr Yeadon makes rather depressing reading.
- If he were to be assessed as qualifying as a Section 20(1)(c) child, accommodation could not be available under the homelessness provisions of the Housing Act 1996, (M v Hammersmith LBC above). But in the ordinary way one would expect these matters to be resolved very quickly. What has happened in this case is that there has been continuing exploration of the possibilities of Section 20 accommodation, even if on a temporary basis only (for the purposes of assessment), at the behest of solicitors for AH, but none of the accommodation has been acceptable to AH - or it may be to AH as advised by his solicitors. The process appears to me to have been conscientiously managed and motivated on the part of the Local Authority, whether as to its duty under Section 20(1)(c), or as to its duties in respect of a homeless child under the 1996 Act, the latter having been considered to be subordinate to the quest for resolution of the Section 20 entitlement or provision.
- In the event, these proceedings and their timetable have been antipathetic to resolution of the Claimant's priority need for accommodation as a homeless person. Bed and breakfast accommodation started on 6th July 2010. It is of central relevance that on 9th July 2010 Mr Justice Charles recorded the observation that 'it appears from the A/S and the Claimant's statement of 7th July 2010 that this application may "and should" be concluded by the acceptance of offered accommodation'; and that His Honour Judge Curran, QC on 26th August 2010 recorded the observation that "no practical step can, or should, be taken to alter the status quo before the date set for the hearing" (emphasis supplied). The hearing for permission on the 21st September 2010 before His Honour Judge Jarman, QC proved in the event not to be the anticipated hearing resolving the issues as to section 20 accommodation and supplemental grounds were filed by the Claimant on 15th October 2010.
- In these circumstances I am not prepared to find that there was an unlawful failure to consider the Claimant's housing needs of the 1996 Act. However, I would recommend in the strongest terms that should such a set of circumstances recur, the Housing Department should not allow itself to be paralysed by the irresolution of a claim to Section 20 accommodation even if the claim is the subject of judicial review proceedings.
- There is a claim under the Human Rights Act on the basis that Article 8 provides that everyone has the right to respect for his private and family life and his home, that private life in this sense has been interpreted as extending to those features "which are integral to a persons identity or ability to function socially as a person" (Razgar –v- SOS Home Department 2004 2AC368HL Lord Bingham); and that under the Human Rights Act 1998 it is unlawful for a public authority such as the Defendant to act in a way which is incompatible with a convention right, and that damages may be awarded under Section 8 of the Human Rights Act 1998. I note that by Section 8(3)
- Therefore I give permission to apply for judicial review but I dismiss the claim and refuse the relief sought.
- I propose to hand down judgment in written form, reserving the form of any order in case there are representations as to consequential matters. In order to minimise costs I am willing to do this in the absence of the parties with permission to either party to restore the matter as may be necessary in order to finalise the order and/or to give the opportunity for representations if any as to consequential matters.
- SUP>th November 2010 His Honour Judge Seys Llewellyn, QC
- 03.2010 Claimant solicitors: Letter 1 [to Ms K Jackson ie Social Services]. "Our client has today approached Housing Options without any assistance form Children's Services . ….Our client is able to stay at his girlfriend's home this evening however this will only be a temporary arrangement. It is likely that the only accommodation Housing Options can offer our client would be Bed * breakfast accommodation, this is in our opinion completely unsuitable. Our client is disappointed not ot have heard form Julia Balston, given that we made it clear that he was to be evicted from his present accommodation today. ..Wee consider that Children Services must undertake an urgent interim assessment and offer suitable temporary accommodation pending a full core assessment being completed. We have been instructed to issue judicial review proceedings tomorrow morning should steps not have been taken to address the issues we raise".
- 03.2010 Claimant solicitors Letter 2. [To Lynne May CC Housing Options Services]. We consider that A is a child in need pursuant to Section 20 Children Act 1989 and should be provided suitable accommodation. … You will note that the letter from his mother Miss C, make it clear that he cannot return home, and the medical report of Dr McKay identifies him as being vulnerable and that his mental state is suffering as a result of his situation. ….We consider that in the light of this case [M V Hammersmith LBC 2008 1 WLR 535 HL] before determining any homelessness application by your client that you must liaise with Children Services. Furthermore thatgiven they are in the process of assessing our client that you must provide suitable temporary accommo9dation in the interim".
- 04.2010 Claimant solicitors. Letter. "On or about 15 April 2010 our client attended a meeting with The Foyer Housing Association in Redruth. At this time our client was declined supported accommodation as he was deemed an unsuitable candidate for supported living. ..Our client continues to live with his girlfriend and her parent s at an address in Trispen. This has been a temporary arrangement since 8 March 2010. We are instructed by our client that the relationship with his mother has broken down and that returning to this family home is not possible. The assessment dated the 8 March 2010 further outlines our client's mothers opinion that 'Alex cannot come home'.We would consider those reasons as sufficient to meet the criteria for section 20(1)(c) . … The assessment of the 8 March 2010 also outlined that our client required a multi agency plan to support his need. We are instructed that no steps have been taken to complete such a plan. And it remains outstanding. We would be grateful if you would inform us whether any multi agency plan has been formulated, and if so provide us with a copy. Our client will be evicted from his current accommodation on or before 30 April 2010. If you do not provide us with assurances by 4pm on Thursday 29 April 2010 that you will provide our client with suitable accommodation on or before the 30 April 2010 we will have no option but to issue Court proceedings to protect our client's welfare".
- 05.2010 Claimant solicitors' e-mail. "[My client] has provided me with details of his meeting with the Social Worker on the 29 April 2010 and has confirmed that he did refuse Thornton House in Camborne as he did not consider that it was suitable for his needs. He instructs me he told her that he had been interviewed by the Foyer on the 15 April 2010 and that they had rejected him for shared/supported accommodation on the basis that he did not meet their criteria and did not need this type of accommodation. Further he told her that he wanted a flat to himself as he is very independent and more than capable of looking after himself and that supported/shared accommodation had not worked in the past and he was not confident that it would work in the future or that it was not good for him."(emphasis supplied).
- 07.2010 Claimant solicitors . Letter. In our letter dated 6 July 2010 we drew your attention to the statement of the Secretary of State contained in the April 2010 guidance. [ie the SOS considers that Bed and Breakfast is unsuitable for 16 and 17 year olds]. In view of this we propose that our client should remain in bed and breakfast accommodation for no more than 48 hours. We draw your attention to the comments of Lyn May [a reference to Housing Services] yesterday and in particular the suggestion that our client will be in bed and breakfast accommodation for up to 6 weeks. We are instructed to make a further application for interim relief should you not have adequately have addresse the issue of bed and breakfast accommodation by 13.00 tomorrow".
- 07.2010 Claimant solicitors Letter. "Our client has had an opportunity to meet with staff at Pendean and to look round the facilities. He has what we would maintain are legitemate reservations as to the appropriateness of such a placement, even as a short-term expedient. The staff member who took him to and from the observation observed to our client that he did not need to be in a children's home like Pendean, with that level of support. .. That is not to say that such accommodation would be wholly unreasonable as a short term expedient while Cornwall undertake a thorough (and overdue) assessment of his needs. But we have seen nothing to suggest that any assessment plan is in place which sets that out". ..
- 07.2010 Claimant solicitors Letter. "[our client] has indicated that he would rather stay at the current accommodation in Penzance than be moved to the placement in Pendean to then be moved on again after the assessment period.
1. The 'continuing failure to accommodate the Claimant pursuant to Children Act 1989 Section 20';
2. The 'continuing failure to conduct a lawful core assessment of the Claimant's needs';
3. An 'unlawful policy to refer 16 and 17 year old homeless children unable to live with their families to Housing Services or to outside agencies rather than for assessment and the provision of support by Children's Services'.
"(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 –
…..
(c) the person caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care".
"62. Further, the Defendant's treatment of the Claimant,
(a) avoiding any assessment of him despite knowing he was not livingwith his parents and was in shared accommodation at St Petroc's with
a range of other individuals, many adults with their own difficulties;
and
(b) attempting to deal with him through Housing Services rather thanChildren's Services;
(c) most recently by discussing only foster care and residential care (which they know to be unattractive to the Claimant for legitimatereasons) and so fettering their discretion by not considering other
alternatives
appear to be part of a policy calculated to evade its duties towards him
(and others in similar circumstances) under Section 20"
(Detailed grounds paragraph 62 at bundle A34).
On 20th May 2010 Order was made by Mitting, J. refusing an interim order for immediate accommodation, stating "by its letter dated 12th May 2010, the Defendant has shown that it is willing to fulfil its statutory duties towards the Claimant and to exercise its statutory powers in relation to him in a manner that is lawful. It is not obliged to accede to his stated wish to be provided with independent accommodation, such as a flat" ( Bundle A39).
On 24th June 2010 HHJ Thornton, QC gave directions stating that "in the light of the Acknowledgment of Service, the Claimant's application does not appear to have a prospect of success. However before a final decision is taken before a judicial review, the Claimant should have the opportunity of filing a reply"(Bundle A46).
On 9th July 2010 Charles, J. directed that the application for permission be dealt with at an oral hearing stating "it appears from the A/S and paragraph 14 of the Claimant's statement of 7th July 2010 that this application may (and should) be concluded by the acceptance of offered accommodation. If it is not the grounds for permission and any application for interim relief should be dealt with at an oral hearing". (Bundle A23).
On 18th August 2010 the claim was transferred to the Administrative Court Office for Wales.
On 26th August 2010 HHJ Curran QC ordered that the application for interim relief (to provide immediate accommodation to the Claimant) be refused and that the oral application for permission listed for 21st September 2010 remain, stating "no practical step can, or should, be taken to alter the status quo before the date set for the hearing, for the reasons given in the Defendants' letter to the Claimant's solicitors dated 2nd August 2010" (Bundle A55).
On 21st September 2010 HHJ Jarman QC directed a rolled up hearing and that the Claimant should file an updating statement and supplemental grounds setting out updated particulars of the relief sought (Bundle A56).
This procedural history may be of some importance, in considering the actual course of events after the date of issue of these proceedings.
28.09.2009 Initial interview with St Petroc's. (Organisation
providing accommodation and support for the single homeless…. apparently on referral from Connexions/Young Peoples Centre Truro Housing history recorded as having lived at home, but reasons for leaving "relationship, break down, parents" (B136 at 141). Further recorded that AH had started college on 9.09.2009 and wished to go into the Marines "this is why he is at college" (B136 at B138).
29.10.2009 AH starts living at St Petroc's, with accommodation for a 6 months' stay. Letter 30.10.2009 to St Petroc's from Tracey Leddar of Social Services Cornwall Council,: "due to you confirming there are no unmet needs at this time we will not be taking any further action." Bundle B123.
(15.1.2010 Letter Social Services to St Petroc's, on their referral "we are not taking further action at this stage" Bundle B119).
(13.2.2010 Letter from solicitors for AH to Social Services seeking urgent review).
1.3.2010 (7 days' notice to quit St Petroc's to AH because of "threatening behaviour and attitude towards other residents; failure to engage with staff; failure to abide by house rules". Bundle B43)
08.03.2010 Social Services assessment of AH on interview (trial bundle B44 and following)
08.03.2010 AH moves to stay with girlfriend's parents in a bedroom at their house.
16.4.2010 AH interview at the Foyer (a centre/housing association which offers advice and assistance). (A dispute of fact exists as to what he was told).
(07.05.2010 Offer to AH of accommodation at Thornton House. (Residential unit).
(06.07.2010 AH leaves girlfriend's home. Moves to Garswood Guest House, Penzance, organised by Social Services, Cornwall Council.
(13.07.2010 Interview at Pendean Residential Unit. Offer of accommodation made. [There is a dispute in the present proceedings as to its suitability].
03.09.2010 AH 18th birthday.
11.10.2010 AH moves to girlfriend's parents, with own room, renting – e.g. AH statement 22.10.2010 Bundle B194.
"for what it is worth, it will be obvious from what has gone before that I agree with the broad approach to the interpretation of when a parent is "prevented" from providing suitable accommodation or care under Section 20(1)(c) which is favoured by Michael Burton, J in the Nottinghamshire case and by Stanley Burnton, J at first instance in R(S) –v- Sutton London Borough Council 2007 2FLR849…..".
The passages there approved were
"….. 'prevention' undoubtedly involves an objective test. It is not satisfied if the factor only that the child does not want to live with someone who is willing to provide suitable accommodation. But circumstances do arise where people are so incompatible that they simply cannot live together" (Stanley Burnton, J ,Sutton at paragraph 40)
(preferred by Burton, J in Nottinghamshire at paragraph 41).
The same broad approach, protective of the interests of children and young persons, is expressed in R(G) –v- Southwark LBC House of Lords 2009 1WLR1299 at 1309 paragraph 28(5) which I shall need to cite in some detail later.
"Dear Sir/Madam,
This letter is to say [AH] dob 3/9/1992 is no longer able to live in the family home as A and myself have been arguing constantly. It has ruined any relationship we have. Not only do I have [A] I have two other children and the arguing constantly is not fair with them. A and myself cannot get on at home so the best thing for him is to move out. He would be welcome home but I fear the arguing would become worse and we would both say something that we both might regret later". (Bundle B22).
"who appears to them to require accommodation as a result of – (c) the person who has been caring for him being prevented from providing him with suitable accommodation or care" (emphasis supplied).
"[Counsel] acknowledges that the assessment of need under Section 20(1) involves an evaluative judgment on the part of the Local Children's Authority" (Baroness Hale in G –v- Southwark LBC at 1305H paragraph 19)
"(4) Does he appear to the Local Authority to require accommodation? In this case it is quite obvious that a sofa surfing child requires accommodation. But there may be cases where a child does have a home to go to whether on his own or with family or friends, but needs help in getting there, or getting into it, or having it made habitable or safe. This is the line between needing "help with accommodation" (not in itself a technical term) and needing "accommodation".
(5) is that need the result of: …. the person who has been caring for him being prevented from providing him with suitable accommodation or care? As Lord Hope pointed out in the Barnet case (c) has to be given a wide construction, if children are not to suffer for the short comings of their parents or carers. It is not disputed that this covers a child who has been excluded from home even though this is the deliberate decision of the parents. However it is possible to envisage circumstances in which a 16 or 17 year old requires accommodation for reasons which do not fall within [s20(1)] for example, he may have been living independently for some time, with a job and somewhere to live, without anyone caring for him at all; he may then lose his accommodation and become homeless; such a child would not fall within Section 20(1) it would then fall within the 2002 Order and be in priority need under the 1996 Act [namely within the homelessness provisions, which bite only if he is not a child within Section 20(1)(c) – see N –v- Hammersmith and Fulham LBC HL].
Disputes of fact in these proceedings.
"This hearsay information is disputed and Mr Willoughby has not endorsed or given his consent to being quoted or relied upon in this way. His position is that his discussion with the Claimant's solicitor has been taken out of context; he was asked a number of theoretical and hypothetical leading questions by the Claimant's solicitor and does not accept the "spin" that the Claimant's solicitors have sought to place upon his conversation with them (B199 at B202).
" No Local Authority properly addressing itself to the law could have concluded that the children's home accommodation offered to the Claimant at either Thornton House or Pendean would lawfully meet his needs or its obligations to him under Section 20.
Further the Defendant unlawfully fettered its discretion by failing to give any or any lawful consideration to the provision of alternative accommodation more suited to the Claimant's age or level of independence". (Supplemental Detailed Grounds bundle A62).
"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 and feelings regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain".
"…..sub section 6 does not provide that the child's wishes and feelings are determinative. In view of the emphasis of the Children Act on a child's welfare (replicated in sub section 6 itself) this is hardly surprising. Children are often not good judges of what is in their best interests. Sub section 6 is carefully drafted. The Local Authority's required so far as is reasonably practicable and consistent with a child's welfare to ascertain the child's wishes and feelings regarding the provision of accommodation and 'give due consideration (having regard to his age and understanding) to such wishes and feelings….. as they have been able to ascertain' the child's wishes are to be given 'due' consideration in the assessment process, no more and no less.
There may be cases where the child's wishes are decisive. But in my view a Local Authority should reach the conclusion that the child's wishes are decisive only as part of its overall judgment including an assessment of the child welfare needs and the type and location of accommodation that will meet those needs".
"It would not be appropriate for the Local Authority, however, to undermine the clear rules of the unit which are set in place for very good reasons, not least of which the Local Authority are in a parenting role. [This was in response to the proposal by solicitors for AH that whilst at Pendean he should be allowed to spend daytimes as he wished without the need to complete or comply with an action plan]. We seem now to be in the somewhat bizarre situation of your client dictating terms upon which your client will agree to enter into Section 20 accommodation." (29th July 2010)
It is conceivable that another view might be taken. I am quite unable to conclude that this was a view outside the reasonable range of responses of an authority in considering the wishes of the child as required by section 20(6).
The assessment of 8th March 2010 .
A has lived independently from his mother for 5 to 6 months. A had no concerns about the care of wellbeing of his siblings who remain in the family home. ….. when at home A stated that his social life was affected as he did not feel able to bring friends home. A says he spent most of his time away from the home or in his room although his mother did physically care for him by undertaking care tasks and providing meals. A says that things were difficult throughout his senior school years but that things deteriorated particularly in recent months…..
Housing. A presented to the Housing Department as homeless on 28th September 2009. Following discussions [his mother] said that A could return home. At this time a Share Advisor completed an application for Foyer Supported Housing. Following further relationship breakdown between A and his mother he entered into a 6 month tenancy with St Petroc's Society which began on October 26th 2009. On 1st March 2010 A was issued with a notice to quit due to threatening behaviours and attitudes towards other residents, failure to engage with staff and failure to abide by house rules. A disputes this and has entered an appeal…..
Analysis of information gathered during the initial assessment. An assessment was carried out regarding A and his circumstances as he has presented as a 17 year old living away from the family home.
It presents that A has needs in the areas of emotional and mental health, education and housing. He is currently being supported by his GP, Primary Health Counselling Service, Truro College Head of Student Services, Key Worker from St Petroc's Society and Housing Options Worker.
In recognition of this and the duty placed on the Local Authority under Section 17(10) of the 1989 Children Act a Child Plan will be confirmed to ascertain that necessary resources are in place (provided by the Local Authority or relevant body) to ensure that A can achieve a reasonable standard of health and development. There is no evidence that A's health or development are likely to be significantly impaired if services are provided and engaged with.
A asserts that he is able to live independently…..
A has a mother who has some contact with and who has parental responsibility for him. His mother can be contacted and is willing to engage with professionals; A is not lost or abandoned. [His mother] was not in agreement she is prevented from caring for A, citing relationship and communication breakdown. A has also cited relationship breakdown as the reason for him not living in the family home.
Comments. A says he can live independently and this is what he would like. A is willing to work with myself and other professionals to meet his needs.
[His mother] says that she feels he can look after himself and has no concerns about this. [She] says A cannot come home as the arguments upset his siblings. She hopes he will get the support he needs but did not feel Section 20 accommodation by the Local Authority would be helpful for A". (initial assessment B44).
"contact from St Petroc's House informing that they are accommodating AH for 6 months and that he is continuing to attend college and appears to be doing well. During discussions with the duty worker the caller did not identify any unmet needs for AH and no action is taken".
That appears to me to be a fair reflection of what is corroborated by the contemporaneous record of contact at bundle B121 to 125. In the event there was initial assessment on 8th March 2010.
"3.8 There is an expectation that within one working day of a referral being received….. there will be a decision about what response is required. A referral is defined as a request for services to be provided by the Social Services Department. The response may include no action, but that is itself a decision that should be made promptly and recorded. The referrer should be informed of the decision and its rationale, as well as the parents or care givers and the child, if appropriate.
3.9 A decision to gather more information constitutes an initial assessment. An initial assessment is defined as a brief assessment of each child referred to Social Services with a request for services to be provided. This should be undertaken within a maximum of 7 working days but could be very brief depending on the child's circumstances. It should address the dimensions of the Assessment Framework, determining whether the child is in need, the nature of any services required, from where and within what timescales, and whether a future more detailed core assessment should be undertaken" (emphasis supplied).
3.10 Depending on the child's circumstances, an initial assessment may include some or all of the following: "interview with child and family members, as appropriate, involvement of other agencies and gathering and providing information as appropriate, etc.).
As part of any initial assessment the child should be seen. This includes observation and talking with the child in an age appropriate manner…..
3.11 a core assessment is defined as an indepth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or care givers to respond appropriately to these needs within the wider family and community context".
(i) A Mr Yeadon was instructed, in the event by the Claimant alone, as a report of an independent Social Worker pursuant to the Order of HHJ Jarman, QC on 21st September 2010. His report describes the initial assessment as being in his opinion "a well crafted document". More fully, Mr Yeadon states "whilst as an initial assessment is in my opinion a well crafted document it throws light on a number of serious vulnerabilities at play, including emotional and mental health, missed education and housing. The recognition that there should be a child plan, and Team Around the Child discussions subsequently, is noted. In my opinion, such planning and discussion is wholly necessary but did not appear subsequently to take place"; however as the correspondence shows, the Local Authority on a number of occasions were suggesting engagement which AH did not take up.(ii) It appears to me that the initial assessment followed the template and, (for brevity here, that) it complied with the guidance for initial assessment set out in the framework document.
(iii) The tenor of Mr Yeadon's report is that so much would have been revealed in respect of AH if there had been a deeper enquiry in March 2010. However his own report is replete with recognition of the advantages of hindsight (by way of illustration, "it is generally accepted that the only way in which a statutory body can make an informed judgment as to the manner in which an individual's needs can be responded to is to make as comprehensive an assessment as the situation appears to demand. Here in my considered view, the Local Authority, it would appear, has made certain presumptions about AH which albeit with hindsight can be seen to be superficial or misinformed" (paragraph 41 bundle B167). I approach with reserve some of the observations of Mr Yeadon as to what ought to have been extracted on an assessment in March 2010, if indeed he is saying that e.g. "A will almost certainly have presented (unusually so) as a young man articulate and self assured …. Had enquiry been made of A, it would have been discovered that when in primary school in Essex he had been responsible – due to violence for putting another child in hospital, subsequent to which he had been provided with anger management counselling for fully 2 years….. this helps explain his composed demeanour…." (report at bundle B170).
(iv) Mr Yeadon himself accepts the importance of hindsight in his findings. Julia Balston was the Social Worker who compiled the initial assessment, and who was the allocated Social Worker who continued to be in contact with AH. Her statement includes this
"[Mr Yeadon's] report indicates that information regarding AH's emotional and mental health "should have led to action"…..23. I work frequently with children, young people and adults in receipt of [mental health] services and consequently have ongoing contact and working relationships with those organisations. AH's presentation was not that of a young person deeply affected by mental illness and his needs in this area were being met by primary mental health services. The GP, who is the primary professional in judging health needs, did not feel that any referrals to secondary mental health services were required. I accept and agree with the GP assessment.24. I dispute the supposition of the independent Social Worker…. that AH would have presented with low self esteem, an absence of engagement with life, lonely and socially isolated. On the contrary AH presented as being strong and determined to fight for what he believed he felt he deserved. He was forthright in his engagements with professionals in situations which other young people may have found intimidating. These are not indicators of a person with a poor self worth or who is disengaged, or uninterested in, life". (witness statement dated 22nd October 2010 bundle B212 at 216-217).
"looking at the various judgments to be considered in Ward LJ's list from R(A) –v- Croydon London BC (citation given) the answer to the question "does she appear to the Local Authority to require accommodation" is "No". In relation to that matter the Local Authority is obliged to make a value judgment taking into account the child, her mother, the accommodation and/or all the relevant surrounding circumstances.
29th April 2010 "I write further to you letter of 28th April 2010 informing you of the change in his living arrangements in respect of your client. [A reference to him having to leave his girlfriend's home, which in the event did not happen at that point] I would make it clear that this does not necessarily mean that the Local Authority's assessment has changed; the Local Authority are convening as a matter of urgency a multi agency at risk of care meeting to determine the future assessment of your client's needs and whether their original assessment of needs remains the same.
12th May 2010 "The Local Authority has made it very clear that they are prepared to make further assessments of your client whilst reserving its position on its original assessment".
9th July 2010 "Please could you make it clear whether or not your client is wishing to be assessed under the Homeless legislation or whether or not he is seeking to be accommodated under Section 20 of the Children Act. Whilst I accept that the offer of the current Section 20 accommodation is only on a temporary basis pending a further assessment clarification of this point is important".
29th July 2010 "I note your client's instructions that he would rather stay in the current bed and breakfast accommodation in Penzance; however you remain ambiguous as to whether or not he is or is not accepting the offer of accommodation at Pendean. Unless I hear otherwise from you, I shall assume that that is the case……
If your client does wish to accept the offer of reasonable accommodation offered by the Local Authority, then of course, as with any young looked after person, discussions will take place as to appropriate source of funds to support him."
"10. [After a number of certain key findings in the initial assessment] There have been no challenges to these findings. The challenge appears to come from the conclusion that the information did not substantiate at that point the criteria for Section 20 accommodation. I have read the assessment and I believe that this conclusion was a reasonable conclusion. AH's mother is able to provide care for him and specifically rejects the suggestion that she is prevented from doing so. The decision that AH moved from the family home was a decision based upon the arguments that are not unusual within the family home between young people of this age and their parents". (emphasis supplied). (Bundle B63).
"Exceptions to Section 20
If there is disagreement between Children's Services and Housing about the process then this should be addressed between the relevant team managers".
"17. Accommodation and Housing.
AH has been entirely clear from the beginning of contact with agencies that he wants his own self contained flat.
AH was not able, in February/March 2010, to maintain his standard of life with the support of St Petroc's Worker, Truro College, Connexions and GP. This was considered as part of the initial assessment and formed part of the evidence that AH was not able to live independently and should be housed in supported accommodation at that time. This would have allowed for further assessment of his abilities and given an appropriate transition. The consistent theme was that AH did not want any structures or rules. AH had to leave previous supported accommodation as he was not keeping to rules.
18. AH has consistently refused all considerations of supported accommodation. This is evidenced in his conversation with Ms May, Housing Options which she discussed with me by telephone on 8th March and 15th March. During this conversation with a Social Worker on 29th April AH also declined supported accommodation on his solicitor's advice but was unable to give reasons for this"……
34. ….. AH himself agreed, initially on March 8th and subsequently, that there was no aggression or violence in the home. AH's mother on 9th March 2010 confirmed this. AH stated during the initial assessment that he had no concerns whatsoever for his siblings remaining in the family home. AH did not present to Housing as homeless due to violence within the home. In addition there had been no contact with the Local Authority from schools or colleges regarding AH presentation or that of his siblings. No calls for advice were received regarding a child being upset about their home life, being nervous of a parent or sibling, being reluctant to go home or of their parents viewed to be hostile, aggressive or uncaring"……
39. AH's mother's description of AH was of a young man who was unable or unwilling to conform to basic expectations and boundaries, of a young man who became angry when he did not get his own way. I believe that this is substantiated by the above comments and experiences of other professionals".
"if there is reason to believe the young person may be eligible for assistance, maybe homeless and maybe 16 or 17 years of age, the Authority will have an immediate duty to secure interim accommodation (s188(1) 1996 Act) pending a decision whether any substantive duty is owed under Part 7. Such accommodation must be suitable for a 16 and 17 year old and, in considering suitability, Authorities should bear in mind that 16 and 17 year olds who are homeless and estranged from their family will be particularly vulnerable and in need of support. The Secretary of State considers that bed and breakfast accommodation is unsuitable for 16 and 17 years old".
"a) not reached any decision on the Claimant's homelessness application as required by statutory guidance within 33 days (i) of his application in September 2009 (ii) or his application in March 2010, or at all ;
b) have offered and provided the Claimant only with bed and breakfast accommodation in flat defiance of statutory guidance."
"24. In its letter of 12th May 2010 the Defendant asserted inter alia
"(AH) did not provide any evidence why bed and breakfast accommodation would not be suitable for him and has turned down this offer."
By letter dated 29th April 2010, the Defendant wrote
"…..without prejudice to our position under Section 20, the Local Authority are mindful of your representations and are currently identifying appropriate placement within one of their residential units whilst a further assessment is undertaken.
I understand that your client has been contacted by the Social Worker. He has I am advised declined to meet with the Social Worker. He has also declined the offer of a residential placement. I record he also previously declined the offer by the Housing Department of bed and breakfast".
By letter of 12th May 2010, the Defendant wrote,
"I ….. note ….. you have now confirmed that your client was indeed offered an emergency placement at Thornton House. Your client refused this accommodation. He of course also previously refused temporary bed and breakfast accommodation offered by the Housing Department……
…… The Local Authority has made it very clear that they are prepared to make further assessments of your client whilst reserving its position on its original assessment. In the circumstances the Local Authority would provide accommodation in a residential setting, undertake an assessment and identify the best chance that your client would have of successful transition to independence".
By letter dated 19th May 2010, the Defendant wrote
"In the meanwhile, the Local Authority have offered on an emergency basis, accommodation within an appropriate residential unit within the County…… It has been made clear to the Claimant that the Local Authority would consider during the period of the re-assessment the Claimant was a looked after child under Section 20".
"no award of damages is to be made unless, taking account of all the circumstances of the case, including:(a) any other relief or remedy granted, or order made, in relation to the Act in question….. and
(b) the consequences of any decision (of that or any other Court) in respect of that Act
the Court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made".
In any event, in circumstances where I assess the conduct of the County Council as having been conscientious, I am not satisfied that an award is necessary to afford just satisfaction to the Claimant, even if otherwise I were to be wrong in my ruling upon the lawfulness of their deliberations.
APPENDIX 1
28.09.2009 He had initial interview with St Petroc's. ("St
Petroc's is a well established and professional
organisation providing accommodation and
support for the single homeless…. A voluntary
sector organisation" Sharon Wood, Senior
Manager of Complex and Acute Services,
Children's Department, Cornwall Council
statement 9th June 2010 bundle B59 at B60
paragraph 6). It was apparently on referral from
Connexions/Young Peoples Centre Truro and it
was recorded that AH was currently living at
home with younger brother, sister, mum and
step dad (questionnaire filled in on 28.9.2009 by
St Petroc's Bundle B136). The housing history
was recorded as having lived at home, but
reasons for leaving "relationship, break down,
parents (B136 at 141). It further recorded that
AH had started college on 9.09.2009 and wished
to go into the marines "this is why he is at
college" (B136 at B138).
29.10.2010 AH starts living at St Petroc's, with accommodation for a six months stay. (email from Angie Utting of St Petroc's "I called Social Services and spoke to Carol Thomas and gave her all the information…. She did tell me that as he was not homeless she would put it for information only rather than a referral. I asked what the difference was…. She said she will clarify and call back or get someone else to call me back" email 29.10.2009 at Bundle B125; letter 30.10.2009 to Ms Utting at St Petroc's from Tracey Leddar of Social Services, referral "no further action" "comments: duty of confirming there are no unmet needs at this time we will not be taking any further action." Bundle B123.
(15.1.2010 letter to St Petroc's from Social Services on their
referral "no further action" "comments: we are
not taking further action at this stage" at bundle B119).
(13.2.2011 letter from solicitors for AH to Social Services seeking urgent review]
1.3.2011 7 days notice to quit St Petroc's given to AH because of "threatening behaviour and attitude towards other residents; failure to engage with staff; failure to abide by house rules". Bundle B43)
08.03.2011 Social Services assessment of AH on interview (trial bundle B44 and following)
08.03.2011 AH moves to stay with girlfriends parents in a bedroom at their house.
16.4.2011 AH interview at Thornton House. A dispute of fact exists: the Claimant states that accommodation was declined, he being told that he was deemed unsuitable for supported accommodation (B57 statement at paragraph 9); Julia Balston the Social Worker allocated to him as of 8.03.2010, reports that the manager at the Foyer told her that AH had made it very clear that he did not want supported accommodation (Julia Balston statement bundle B212 at paragraph 21 B216).
29.04.2010 offer to AH of accommodation at Thornton House. (Residential unit: (reported by others: no contemporaneous document apparent in the bundle).)
(07.05.2011 telephone contact between Social Worker and AH, discussing Stonham Floating Housing Support – chronology of Sharon Wood at Bundle B68, and agreed by AH in his second statement paragraph 5 bundle B102 no approach by AH on this date but visited Carrick Housing Services on 6th July 2010 AH second statement B102 paragraph 6).)
06.07.2010 AH leaves girlfriends home. Moves to Garswood Guest House, Penzance, organised by Social Services, Cornwall Council.
(06.07.2011 AH told by Julia Balston again about Stonham Floating Housing Support Julia Balston statement paragraph 20 bundle B216)
(13.07.2011 Interview at Pendean Residential Unit. Offer of accommodation made. (Julia Balston says statement paragraph 19 bundle B215 that AH said to her during a telephone conversation on 13th July 'I'm not saying I won't go there, I'm waiting for my solicitor to tell me what to do').
03.09.2011 AH 18th birthday.
11.10.2011 AH moves to girlfriends parents, with own room, renting – e.g. AH statement 22.10.2010 bundle B194.
APPENDIX 2 The correspondence includes the following :
Cornwall Council ("CC") "9.03.2010 I confirm, that the Social Worker, Julia Balston, did make contact with A yesterday and undertook the first part of an initial assessment. She needs to make further enquiries of A's family, his college and other relevant parties; however will be in a position to complete the assessment shortly. The Social Worker's initial views of the assessment is that A is a bright and able young man whose aim is specifically to obtain independent accommodation funded by the Local Authority. A did not provide any evidence at the interview to suggest that he was prevented from living at home, merely due to differences of opinion with his parents, he chose to leave. A has a number of siblings currently living at home quite happily. He is not known and has not been known to the Local Authority and the Local Authority is not aware of any risk issues preventing him returning home. If you have any information to the contrary please make such information immediately available prior to the Section 20 determination being made…… A has we understand been choosing to live independently for some time. His current predicament is as a result of his breach of the rules of St Petroc, not as a result of him being prevented from living at home. We do not have any other information to suggest that any other criteria is met; however if you disagree, please state why…….
You have not stated what accommodation you do feel is suitable; however once the assessment is concluded, if A is deemed vulnerable, he is likely to be offered more supported accommodation, such as foster care. A made it clear to the Social Worker, however, that he would not wish to be considered a looked after child and would not wish to enter into that type of accommodation……
You are aware that you client is undergoing assessment with Children's Services. I would suggest that you allow this to be completed within the necessary timescale and it is this assessment which will determine what appropriate support should be provided to A and whether or not he should become a looked after child." (Bundle C15 at C16 to 17).
CC: Letter. "29.04.2010 I write further to you letter of 28th April 2010 informing you of the change in his living arrangements in respect of your client. [A reference to him having to leave his girlfriend's home, which in the event did not happen at that point] I would make it clear that this does not necessarily mean that the Local Authority's assessment has changed; whether the Local Authority are convening as a matter of urgency a multi agency at risk of care meeting to determine the future assessment of your client's needs and whether their original assessment of needs remains the same.
In the meanwhile I note that you state that your client needs an appropriate placement as a matter of urgency. Without prejudice to our position under Section 20, the Local Authority are mindful of your representations and are currently identifying an appropriate placement within one of their residential units whilst a further assessment is undertaken. [This is a reference to Thornton House, in respect of which an offer of accommodation was made].
I understand that your client has been contacted by the Social Worker. He has, I am advised, declined to meet the Social Worker. He has also declined the offer of a residential placement. I recall he also previously declined the offer by the Housing Department of bed and breakfast" (see C24 letter from Karen Jackson of Social Care Legal Services Cornwall Council).
CC Letter. "12.05.2010 I write further to your email of yesterday's date and note that you now confirm that your client was indeed offered an emergency placement at Thornton House. Your client refused this accommodation. He of course, also previously refused temporary bed and breakfast accommodation offered by Housing Department.
What is quite clear here is that your client is under the impression that the Local Authority is under a duty to provide him with the accommodation of his choice. His choice appears to be independent accommodation, namely a flat of his own, funded by the Local Authority. Whilst the Local Authority is fully aware of the importance of ascertaining a young person's wishes and feelings and to give consideration to those wishes and feelings, it is of course the Local Authority's duty and responsibility to make decisions about the appropriateness of accommodation or otherwise but it appears that your client is effectively "self assessed" and you are asking us to place greater weight upon that assessment than our own.
The information that you have provided is apparently conflicting, in that previously you have emphasised that this is a young man who is extremely vulnerable, yet you now state that he is independent and more than capable of looking after himself. The Local Authority notes with concern however, that he was previously ejected from his accommodation at St Petroc's due to his behaviour. The Local Authority has made it very clear that they are prepared to make further assessments of your client whilst reserving its position on its original assessment. In the circumstances, the Local Authority would provide accommodation in a residential setting, undertake an assessment and identify the best chance that your client would have of successful transition to independence." (C32 again a letter from Miss Jackson).)
CC Letter. "09.07.2010 I confirm that A was provided with emergency accommodation in bed and breakfast. This was in response to an immediate demand and reflected your client's ongoing position with regard to the offer of accommodation by Children's Services within a Local Authority residential centre. I am aware that both the Housing Officer and Social Worker have been in discussions with regard to this and the Housing Officer is aware that the Social Worker has again made clear to A that then an offer of accommodation within a Local Authority residential centre. Your client is still failing to notify the Social Worker that he wishes to accept that offer.
Please could you make it clear whether or not your client is wishing to be assessed under the Homeless legislation or whether or not he is seeking to be accommodated under Section 20 of the Children Act. Whilst I accept that the offer of the current Section 20 accommodation is only on a temporary basis pending a further assessment clarification of this point is important. In the meanwhile, it has been made clear that bed and breakfast is only available in emergency situations. All other options will be explored with your client: Indeed that has already occurred. You will be aware that in fact the referral was made to the Foyer. The Foyer was unable to provide a service to your client because your client specifically did not want any support in that accommodation. Similarly, your client has failed to take advantage of the referral to Stonham Floating Housing Support. Again I would ask exactly what your client is seeking from Housing Department in this matter." (C51 at 51-52 from Ms Jackson).
So, pending the completion of a lawful assessment of his needs, he is faced with a choice between continuing in accommodation which both secretaries of state [sic] have made plain is unsuitable. Or of moving into accommodation which he legitimately reluctant to consider …"
CC 21.07.2010 Letter. "It is absolutely not accepted that Pendean is not a suitable or appropriate placement for A. It is entirely within the reasonable judgment of the Local Authority to consider this as being an appropriate placement despite it not being A's expressed sole option of independent, unsupported living. . In offering either a residential or a foster placement, we are offering a resource after considering the information on A, including the conflicting information provided by yourselves.
.. I have no doubt that A thinks he can live independently and has been consistent in his wish not to have any support. That is the root of his refusal of the Foyer. As I have stated previously, it was not the case that you sought to depict that the Foyer refused him on the grounds of suitability, more that they felt that A needed support and that A refused any placement with support".
If the only alternative placement to that which our client currently has is in Pendean we request that he remains there whilst further assessment of his needs takes place.
[Proposals as to Pendean but with dispensation for him form certain of the rules in Pendean].
CC Letter. "29.07.2010 I write further to your letter of 23 July. I note your client's instructions that he would rather stay in the current bed and breakfast accommodation in Penzance; however you remain ambiguous as to whether or not he is or is not accepting the offer of accommodation at Pendean. Unless I hear otherwise from you, I shall assume that that is the case……
If your client does wish to accept the offer of reasonable accommodation offered by the Local Authority, then of course, as with any young looked after person, discussions will take place as to appropriate source of funds to support him. It would not be appropriate for the Local Authority, however, to undermine the clear rules of the unit which are set in place for very good reasons, not least of which the Local Authority are in a parenting role. [This was in response to the proposal by solicitors for AH that whilst at Pendean he should be allowed to spend daytimes as he wished without the need to complete or comply with an action plan, that he was funded]. We seem now to be in the somewhat bizarre situation of your client dictating terms upon which your client will agree to enter into Section 20 accommodation. Again I would ask you to state your case…… Please note that A has also refused any family mediation. We are however in the process of arranging a family group conference for this family and will be contacting A's mother accordingly to try to support this young man and his family in a sensible manner". (Letter from Ms Jackson bundle C63-64).