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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> L, R (on the application of) v Nottinghamshire County Council [2007] EWHC 2364 (Admin) (26 September 2007) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2007/2364.html Cite as: [2007] ACD 372, [2007] EWHC 2364 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF L | Claimant | |
| v | ||
| NOTTINGHAMSHIRE COUNTY COUNCIL | Defendant |
____________________
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Mr L
Samuel
(instructed by the Legal Department for Nottinghamshire County Council) appeared on behalf of the Defendant
____________________
Crown Copyright ©
"(1)In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is-
...
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970, apart from functions under section 17, 23B and 24B.
(2) In subsection (1) accommodation means accommodation which is provided for a continuous period of more than 24 hours."
(i) a declaration that the claimant has been looked after for the prescribed 13 week period and is a former relevant child;
(ii) a mandatory order requiring the defendant to assess the claimant's needs and produce a pathway plan which accords with regulation 8 of the 2001 regulations in the shortest
period deemed by the court to be reasonable
(3) a mandatory order requiring the defendant to appoint a personal adviser for the claimant forthwith and in any event within three weeks days.
It is common ground that if she a former relevant child, by virtue of findings I make with regard to what was her status as between her and the defendant between 15 and 21 September 2005, then those obligations follow.
"It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
By an amendment to section 17, as a result of the Adoption and Children Act 2002, section 116(1) which came into force on 7 November 2002, a new subsection 17(6) was added, which reads as follows: checked
"(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation ..."
This was to make good a lacuna, as was seen in section 17, which had been identified in the cases which led to the decision of the House of Lords in R v G v Barnet London Borough council and the R v W v Lambeth Borough Council [2004] 2 AC 2008 in situations in which councils had been providing accommodation, as they understood it, under section 17, which turned out to have been ultra vires as found by the courts.
(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -
(a) their being no person who has parental responsibility for him; [or)
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
I have added the word "[or]" after (a) because it was common ground that the three subsections are disjunctive and in this case it is subsection (c) which is relied upon by the claimant.
"before providing accommodation under this section a local shall so far as is reasonably practical and consistent with the child's welfare-
(a)ascertain the child's wishes and feelings regarding the provision of accommiodation;
(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."
By subsection (7) there is provided:
"a local authority may not provide accommodation under this section for any child if any person who -
(a) has parental responsibility for him; and
(b) is willing and able to -
(i) provide accommodation for him;
(ii)and arrange accommodation to be provided for him
objects."
"The amendment to section 17 did affect the duties and powers of local authorities to provide accommodation for lone children under section 20 of the Children Act 1989, or under a care order. Accordingly, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families. However, there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under section 17..."
Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families published by the government in April 2000. Pausing there, there is no evidence in, and consequently it must be assumed that it is not the case, that the Defendant Council carried out any such assessment in this case in September 2005. I continue:
"It should then use the findings of that assessment which will include taking account of the wishes and feelings of the children as required by section 26 of the Children Act as a basis for any decision about whether he should be provided with accommodation under section 20 or whether other types of services provided under section 17 of the Act are better suited to his circumstances. The assessment should first determine whether the child meets the criteria set out in section 21 and the circular then sets out the three subsections which I have quoted. For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate. While the needs assessment is being carried out he should be cared for under section 20."
Pausing there for the moment, it would become apparent that if that assessment is to be carried out it will be likely to take longer than the 24 hours which will be sufficient to render a relevant child, or an eligible child, if he or she had, for more than 13 weeks prior to the age of 16, fulfilled the relevant qualification:
"Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful means of support in this country. In such cases the child being without a family, or responsible adult in this country, would appear to trigger a duty under section 21. However after taking account of the child's wishes, as required by section 26, the local authority might judge that the child is competent to look after himself. In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20 and thereby taking him into the looked after system. In such cases section 17 may be used for support, including help with accommodation without making the child a looked after child."
There are further matters which were not in dispute between the parties. The first was that the affect of section 20, as I have described, if applicable, is significant and burdensome. It is not surprising that the defendant council should resist the conclusion that section 20 applied to what they did, now more than two years ago, but it is also common ground that there is no suggestion at all that, as was described by the judges in one or two of the cases, to which I have referred, there was any question of the council sidestepping or evading any of its obligations. None of the decisions, to which I have referred, were extant at the time. The circular is, as Holman J said, not entirely clear and there is no doubt at all that the council did not have in mind at the time the kind of questions which are now left for consideration by me.
Leslie
Samuel
for the defendant had become clear, the questions are largely one of fact for me to resolve. Looking at section 20(1) there are four requirements which must be satisfied in relation to my concluding that the accommodation was provided under section 20, which would render the claimant a former relevant child:
(1) the child must have been at the material time a child in need. (see section 20(1) this is considered)
(2) the child in need must have been in the defendant's area. Once again this is conceded.
(3) the child must have been a child who, at the relevant moment 'appears to them to require accommodation.'
that is the first area in which there is battle between the parties.
(4) One of the three sub clauses must apply."
The one that is relied upon by Mr Wise is this: [I reincorporate the words with which subparagraph (1) is predicated]: "who appears to them to require accommodation as a result of ... checked
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
"appeared to the defendant to require accommodation."
It is, to my mind, important, on the facts of this case, that there was no assessment. So we are not looking at a document in which a careful consideration was given by the defendant as to whether, for example, the claimant needed accommodation, or only needed help with accommodation. This apparent difference is one which Holman J thought arose out of the wording of the circular, to which I have referred. I can see that depending on the facts of a given case, it may well be significant if, particularly after an assessment, a defendant council decides, "Well all this child requires is some help, for example, financial help with accommodation, and we can stand on the side lines." Mr Wise submits that the council cannot absolve itself from the obligation under section 20 by such a conclusion, but if a genuine conclusion, and particularly one arrived at after an assessment, it would appear that that may well put such a council into the section 17 option rather than the section 20 duty.
"I spoke to [L]. She told me that she had been living with her mother and stepfather for about 2 months and things had been 'dicey' from the start. Today [L] signed on to claim in her own right, as she was not getting any money. Someone (from DSS presumably) phoned [mother] and said that she could no longer claim child benefit as [L] was claiming for herself. [L] said that [mother] was angry at this and told her that she wanted £35 of the £40 that [L] would get for board and lodging, and that [L] would have to get her own food. She and [L] had a row because [L] said she wouldn't comply. [L] said that [her mother] pushed her against the wall and then told her to get out and not come back. She said that her mother had only shown any interest in her since she had the baby and wasn't really interested in her.
...
7.45pm Phone call ... [from mother-in-law]. She has not been successful. She even phoned [L's] mother ... but she is adamant she will not have her back under any circumstances. I said I would speak to [mother], and I will also try to find somewhere for [L] to stay. In the meantime [mother-in-law] will take [L] back to her address to wait for our call.
8.10pm Phoned [mother]... She said she would not have [L] back as she had hit her on the arm. I asked what the row was about and she said that [L] was in a mood because she didn't like the food at teatime. I asked about the DSS claims and she reluctantly admitted that [L] had said something about that. I asked about the charging of board and lodging and [mother] again said that she would do so if [L] had money. [Mother] was vague about it all. She was clear that she wouldn't have [L] back.
8.15pm Phoned Service Manager, Steve Edwards, who is familiar with [L] and her circumstances. I explained what had happened this evening. He authorised payment for overnight accommodation and said that he felt she should be in reasonable accommodation and suggested the Travel Lodge at Worksop."
There are only two other relevant notes. The first is dated 16 September 2005 at 10.57 in the morning when a telephone call to L is recorded by the duty worker and she is noted as saying:
"she is not able to stay at any family members and does not wish to stay at paternal grandparents."
The other is an internal memo relating to a financial matters, entered on 16 September 2005, with regard to money paid for overnight accommodation. The heading at the top of the note is "children - family support services essential assistance [section 17 Children Act 1989]" The defendant submits that that is an accurate record of what occurred. Plainly it is certainly a record of what the defendant council thought it was doing, but, as I have indicated earlier, the label that the council put on the matter cannot possibly be conclusive.
Samuel
has indicated that that is an important factor, that the council knew that, as he put it, all had been tried up to the very highest level of the care home for four years and consequently that should be taken into account in any conclusion as to what occurred. I do not see that that is in fact relevant. If previously they have tried all kinds of things, leading to a care home, that would not prevent the claimant from appearing to require accommodation. I am satisfied that that is exactly what she did appear to require in September 2005 and that is what, albeit only as it turns out only for a short period, she got. I am satisfied that this qualification is fulfilled by the claimant.
Samuel
to be a dictum, but nevertheless a dictum from a judge of the Court of Appeal. That is in the Hammersmith and Fulham case. I have already described how nothing in fact was in issue, so far as the decision is concerned, once the Court of Appeal concluded that the child in that case was not a child in need, subject to any contrary decision that may be made on appeal to the House of Lords. So the question as to what would have been the position had the child been in need was mute.
"86. Mr Wise submits that any council officer, even in the homeless persons unit of the housing department, had only to look at M, with the limited knowledge of her that was available on 6 April 2005, in order to see that she was someone to whom the Council owed a duty to provide accommodation under section 20 of the 1989 Act."
She then refers to the question of child in need."
Then he turns obiter, as I have indicated, to consideration of subparagraph (c)., namely that the person who has been caring for him or her is: CHECKED
"'prevented ...from providing him with suitable accommodation or care'. Given that what M needed was accommodation, and given that accommodation existed at her mother's home, it does not seem to me to be plain and obvious, at any rate, that her mother could properly be described as being prevented from providing her with accommodation."
All that Lloyd LJ there says there from a conclusion of his is that it would not be plain and obvious that the child in question would in those circumstances be properly described as being prevented. He goes further in the following sentences: CHECKED
"I do not mean to underestimate her mother's difficulties, given her own ill health, but not being willing to provide accommodation is not the same as being prevented from providing it. So far as section 20(3) is concerned, apart from the child having to be a child in need, the local authority would have to consider that her welfare is likely to be seriously prejudiced if they do not provide her with the accommodation."
The facts of that case were set out in paragraph 10 of the judgment of Wall LJ as including the fact.
"in early April 2005 when she was 17 the relationship between M and her mother broke down. M was asked to leave home. In her statement M's mother explains that she has an inoperable life threatening tumour and that in early April 2005 M's behaviour deteriorated to such an extent that her mother was unable to control her."
Even without further consideration, to which I shall now turn, it seems to me perhaps surprising that it could not have been concluded even obiter that the mother was prevented by her serious ill health and her inability to control M from continuing to provide accommodation.
"the question therefore arises whether J was subject to section 20 when her placement with her father failed on 10 November 2005. Sutton accept that she was a child in need. Section 20 distinguishes between caring and accommodation, but J had lived with, and presumably been cared for by her father. Mr BelamyQC
disputed that her father was 'prevented' from providing accommodation. 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. According to Miss Gardiner's witness statement, J's father was unable to offer her accommodation on her release because of the difficult relationship with his partner. The fact that J's placement with her father in November 2005 failed so speedily supports the conclusion on 11 November 2005 he could not provide accommodation for her in these circumstances. Section 21C was satisfied and Sutton was under the duty imposed by that subsection."
Although the Court of Appeal differed from Stanley Burton J in relation to his finding that the respondent did not owe the relevant duties, a fotori they must have uphold his decision in that regard because without it they could not have gone on to conclude that, contrary to his decision, section 20 duties were owed by the council. Therefore it seems to me that implicitly that statement by Stanley Burnton J must have been approved by the Court of Appeal.
Samuel's
careful and persuasive submission that to find what happened here fell within section 20 would be either to open the floodgates or to impose on unexcepting - sun suspecting councils duties they did not appreciate they had or obligationings they did not expect to be taking on. This is not a SEPL TPHA*L case, but the law has now been made utterly clear by the authorities, to which I have referred and which I do not - which I have simply been following, or at any rate not differing from. All I have done is interpret the words of the statute. I think there is little doubt that section 20 can well *R could well be a very broad effect effect in that on on facts THOF case there was some doubt about whether the carer was prevented from continuing to look after or provide accommodation for the claimant and I have resolve that issue in favour of the claimant. But on a perhaps even more every day KPEPL . it seem - example it seems to me that section 21 (c) might well be satisfied that if a person who had been caring for the child was preventing simply by financial circumstances from providing the child with suitable accommodation or care. The words are "prevented) whether or not TPERPL TPHEPBTly and for whatever reason] there might be an even for straightforward and ordinary example of a child who can no longer be accommodated by a parent nevertheless falling if otherwise qualifying within section 20 of the Act. But whatever may be the impact and effect of section 20 the statute is on the statute books and is there as a duty alongside section 17 and there is a way in which certainly in the light of the authorities, to which I have referred, a council can protect itself and that is subject always to the potential catch 22, to which I have referred if the circular is right with regard to exceptional circumstances of perhaps a limited to asylum seekers, a council can and should take time before deciding whether the child appears to require accommodation to carry out the relevant assessment. Which will enable the council to see whether what is required is accommodation or only help with accommodation or some other service or assistance. I do not conclude that there is any dramatic or drastic effect of a decision of the authorities, to which I have referred, to my decision. Finally I should deal briefly with the point raised in respect of delay. Mr
Samuel
has pointed out that strictly speaking, given that I have found that the claimant was a relevant child in 2005 and after the age 18 and has been since then a former relevant child, it sought to have been - ought to have been capable of being resolved at any stage prior to these proceedings whether the defendant council owed the obligation under section 20 and that there was no call for waiting until the claimant instructed the solicitors to bring the proceedings and that there may have been prejudice to the defendant by virtue of the passage of time and the dimming of memories, although I have already indicated that no memories were relevant in this case. What was significant was the contemporaneous notes, which I have recited, but it may be that some witness statement could have been PWRAOUGT PWRO*UGT forward if the case had been brought on nearer the time.
SAMUEL:
My Lord, can I deal with the timescales. TREUS yeh marsh who filed the statement on the defendant's behalf is here. Unfortunately as luck would have it or ill luck would have it she is on leave for the next fortnight. There are a panel of person advisers we would appoint a personal adviser forthwith. That would be without consultation. As we understand it it is better to consult, but if there is to be a meeting and a meeting with somebody with some real knowledge in the course of these proceedings it would need to await her return. Either in relation to a person adviser either it is now and we appoint somebody from the panel and we can do or if there is to be a neating - meeting. Judge personal advice *ER 3 weeks not one for the reason you have given. Once the personal adviser is in place the period of time for the provision of the assessment?
SAMUEL:
There will need to be a lot of liaison. We are not entirely sure who has provided assessments to date. Is it the City Council or dark SHEUR. There needs to be a three party meeting with AEU man Dan herself so one can get up-to-date information as to what is going to happen I would not be conducted by tracey marsh she would hand it OEUFR to the leading care team once everything was in place. We talked about 3 months whether that is outside the timescale your Lordship has in mind I know not.
SAMUEL:
It could take place in advance. I think the benefit and the importance of the personal adviser is the person adviser is an integral part of the.
SAMUEL:
No that would not be permissible. She cannot.
A. Indeed it comes out of the public pocket in terms of provisional resources for children and families.
A. I would pray in TAEUD delay point. It has made things difficult. What is being challenged s a decision made in December 2005 two years after at the vent.
SAMUEL: We do not have a difficulty with appointing a personal adviser now. What that will mean is that it will be somebody from the panel without consultation. Strictly speaking there does not have to be consultation, but our history of working with her shows.
A. I am on leave from Friday.