Scottish Court of Session Decisions

The petitioner is 17 years old and is subject to a supervision order consequent upon a Children's Hearing at Falkirk under section 70 of the Children (Scotland) Act which I shall refer to as the 1995 Act. She brings this application for judicial review in respect of a decision which she alleges was taken by the respondents, Stirling District Council, with regard to accommodation being provided for her, or rather refused to be provided for her, as she alleges, by the respondents. The legislative background is the 1995 Act and in particular I am entirely satisfied that in the present case the Authority exercising the supervision order in terms of section 71 of that Act is Falkirk District Council. The involvement of the present respondents arises from the fact that in the Spring of 1998 an approach was made by the social worker looking after the petitioner to the respondents with a view to the respondents providing accommodation for the petitioner within their jurisdiction, previously the petitioner having been accommodated in a children's unit in Falkirk. There is some dispute between the parties as to how this particular request should be categorised as a matter of law, but in any event thereafter until recently the petitioner was housed in various accommodation within the jurisdiction of the respondents mostly on a bed and breakfast basis.

Against that background the petitioner's counsel approached the matter on a two-pronged basis. First of all he submitted that the request as I have described it should properly be categorised as a request under section 21 of the Act which deals with the co-operation between authorities. He submitted that what in effect was being sought on behalf of the petitioner was the exercise of powers on the part of the respondents given to them under the provisions of section 25 of the Act which is described as provision of accommodation for children. It was submitted in terms of section 21 that once such a request is made the relevant recipient was bound to comply with it and therefore in these circumstances the refusal on the part of the respondents which is stated by the petitioner to be the decision under review not to provide any further accommodation on a residential basis was inappropriate in law. In addition, counsel also sought a quite separate approach based upon section 25 and in particular subsection 25(1)(c) which states, paraphrasing it, that a local authority shall provide accommodation for any child who is residing in their area and appears to them to require it because the person who has been caring for him or her is prevented, whether or not permanently and for whatever reason, from providing him or her with suitable accommodation or care. He submitted that having regard to the fact that the petitioner was being "looked after" by a local authority in terms of section 17 of the Act she was therefore a person who was being cared for and was being cared for by that local authority. Because in this case the petitioner, it was averred and submitted, wished to reside within the Stirling area, the submission was that the person who had been caring for her, namely Falkirk District Council, were prevented in terms of their own care plan from carrying out that requirement and therefore the provisions of section 25(1)(c) were triggered in respect of the position of the respondents.

In my opinion neither of these applications or approaches is sound in law on the facts which are apparently before me.

It is important to recognise that in terms of section 17(6) there are four categories of definition of a child who is "being looked after" by a local authority, two of which are respectively (a) a child for whom they are providing accommodation under section 25 of the Act and (b) a child who is subject to a supervision requirement and I emphasise that these two are separate. It therefore seems to me that in terms of section 21 what was being asked of by Falkirk District Council to Stirling District Council was a request for help in relation to their obligations towards the petitioner under and in terms of a supervision order and nothing more than that. If the local authority, namely the respondents, had decided to respond to that request by providing accommodation, they were only doing so in my opinion as a means to providing help for the supervising authority and not in respect of any obligation under section 25(1). It therefore follows, recognising as I do there is some dispute between the parties as to whether or not the request that was made should properly be categorised under section 21, it seems to me that even if it is, taking that as granted, it would not have led to any obligation requiring a decision on the part of Stirling District Council in respect of section 25. I am fortified in this approach by the fact that in terms of section 21 the compliance with the request that is made is only to be done if it is compatible with the statutory or other duties and obligations of the authority to whom the request is being made. This seems to me to require such an authority to consider whether if they are going to provide accommodation they can properly do so without disrupting their own housing lists and this again seems to me to be far removed from any freestanding obligation or a position under section 25. In this context I was referred to a decision of the House of Lords R v Northavon District Council 1994 3 AER.313 which seems to suggest that when considering the competing claims of the caring authority and the housing authority a balance was to be struck as a matter of policy or decision and not in terms of any legal interpretation of the relevant legislation. In these circumstances I do not consider that the petitioner has made out a case that would entitle her to succeed on the basis that the respondents failed to respond properly to a request under section 21. Even if they had been providing accommodation since then, in my view they have been doing so on a basis of their own voluntary decision under section 25(2) and not in terms of any obligation under section 25(1).

Turning separately to the issue under section 25 success for the petitioner of this argument requires the phrase "person who has been caring for her" being interpreted as the local authority exercising a supervision order, and that I am not prepared to do. It seems to me that the three subheads of subsection 25(1) are all reflecting different types of abolition of parental responsibility and I do not consider that equiperates with the duties imposed on the supervising authority by the other provisions of the legislation. Nor am I satisfied that the word "prevented" is satisfied on the test advanced on behalf of the petitioner having regard to the fact that the real reason for the transfer of jurisdiction is the quite understandable wishes of the child in accordance with her care plan to reside in Stirling. It does not seem to me that any provisions of care by the Falkirk District Council have in fact been "prevented" in the proper sense of that word. My view is fortified by the clear distinction in section 17(6) between a local authority exercising a supervision order, on the one hand, and on the other providing accommodation under section 25. In these circumstances I do not consider that any obligation arises under section 25 which would require Stirling District Council to provide accommodation for this petitioner and accordingly I do not consider that even if such a decision has been taken not to do so, and I am not entirely satisfied that is the case, it was not one that they were bound to make in her favour under section 25.

For these reasons in my opinion as presently presented to the Court this petition does not raise any relevant grounds upon which any of the orders that were sought can be granted and I shall dismiss it.