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Local Authorities' Duties to Children Leaving Care

David Bedingfield of 4 Paper Buildings considers the duty of local authorities to accommodate former looked-after children in the wake of R (SO) v London Borough of Barking and Dagenham

David Bedingfield, barrister, 4 Paper Buildings

David Bedingfield, Barrister, of 4 Paper Buildings

Consider the plight of the cash strapped inner-city local authority. All local authorities face funding cuts of unprecedented severity.  It is likely as well that tax revenues will drop precipitously in the next several years, meaning that more cuts will likely be made. If the private sector job market does not provide entry-level jobs for young people, it is of course probable that more young people will present themselves to local authorities and seek assistance, making it less likely that local authorities will be able to meet the needs of each of those young people. 

Most local authority duties to children in need emerged from statutes passed by the post-war Labour government of Clement Attlee from 1945 to 1949. Specific duties were given to local authorities to protect vulnerable children, to provide accommodation for those children abandoned or abused by their parents, and to provide aid and assistance for those children in state care as they entered adulthood. The specific contours of those duties, however, have inevitably been shaped by the courts, seeking to interpret the intent of Parliament in order to resolve specific conflicts about those duties. It has become increasingly apparent in the last several years that some local authorities have sought to interpret those duties in ways that served to limit local authority spending. These incorrect and restrictive interpretations then became part of the budgetary process. Local authority spending projections become based in part on these incorrect interpretations.  

The appellate courts during the last several years have repeatedly corrected these restrictive interpretations of local authority duties. In 2009, for example, the House of Lords informed local authorities that when a child meets the criteria for accommodation under s.20 of the Children Act 1989 (that is, there was no one with parental responsibility available to provide accommodation for that child because that child has been abandoned, or because the person with PR is unable for some reason to provide accommodation for that child), the local authority must meet the housing needs of the child. Previously, many (if not most) local authorities had directed  homeless 16 and 17-year-olds to the relevant housing association, thereby off-loading responsibility for providing housing for those children to that association and relieving the local authority budget from the onerous duty of providing housing. The House of Lords, in the case of R (On the application of G) v. London Borough of Southwark [2009] UKHL 26, told local authorities they were wrong in law. Parliament's intention was clear; according to Baroness Hale: if a child within a local authority area meets the criteria under s.20 of the Children Act 1989, the local authority must provide accommodation for that child.  

The Local Government Association estimated in 2009 that approximately 12,400 children aged 16 and 17 were being supported not by their relevant local authority, but instead by a housing association. A survey of Directors of Children's Services concluded shortly after the judgment had been handed down that the costs of reassessing the needs of these 16 and 17-year olds would be approximately £74 million in the first year. There would also likely be a further cost of £17 million for local authorities to provide "leaving care" services for these children. The latter cost, of course, would be incurred because the children would, after receiving accommodation from their local authority, now qualify as "looked-after children" under s.23 of the Children Act 1989. Since they are looked-after children, the (Leaving Care) (England) Regulations 2001 will apply to each accommodated child. Regulation 8(2) provides that a pathway plan for that child must set out the manner in which the responsible local authority proposes to meet the needs of that child, and the date by which, and by whom, any action required to implement any aspect of the plan will be carried out. The relevant schedule identifies nine separate matters that must be considered in any pathway plan.1  One matter identified is housing: the local authority must set out details of the accommodation the child or young person is to occupy. 

Local authorities after the Southwark case went cap in hand to the previous government, asking for help to meet the obvious budgetary gaps that would be created by the judgment. The former Minister of State for Children, Young People and Families, Dawn Primarolo, informed the Local Government Association that while the central government could feel the LGA's pain, it would not provide any further cash to meet the funding gap (See "Government Refuses Local Authorities Further Funds in Wake of Southwark Judgment"). This government's first budget presentation purports to provide some funding for local authorities to provide assistance in accommodation, but when taken in context with overall budget cuts the funding provided is risibly short of what will likely be required. 

The importance of the pathway plan, and the likely impact on local authority budgets of a properly funded pathway plan for looked-after children, has become distressingly clear to local authorities after two recent judgements, one by the Court of Appeal, another by Mr. Justice Kenneth Parker. 

Mr. Justice Parker's judgment in the case of R(A) v London Borough of Lambeth  [2010] EWHC 1652; [2010] 2 FCR 539, Admin., makes clear that a local authority must carry out an assessment of the welfare needs of every former relevant child (that is, every child leaving care). The pathway plan that is created must be "operational," in the sense that it must analyse what the claimant's likely future financial needs will be and "adequately specify how such identified needs may be met." (See para 6 of Parker LJ's judgment. See also the article by Oliver Studdert, "The Importance of Pathway Plans and Local Authorities' Duties to Care Leavers", with regard to the importance of pathway plans for local authorities and for children leaving local authority care.) 

The Court of Appeal has now also made clear that "future financial needs" may in some cases include providing accommodation for the former looked-after child. The case of R (SO) v London Borough of Barking and Dagenham [2010] EWCA Civ 1101, handed down on 12 October 2010,  provides that local authorities owe a duty to "looked-after" children to provide accommodation for those children when required. The case offers both a fascinating analysis of recent legislative history regarding local authority duties to children in need, and a clear statement by the courts that Parliament has intended that local authorities provide a fully funded safety net for children leaving the care system. 

The case of SO involved a failed asylum-seeker who had been cared for by the local authority when he was 17 years of age. He had arrived in the UK from Eritrea in 2007, and the relevant local authority assessed his age at the time to be 17. (There is in fact an ongoing dispute about the asylum seeker's age. For the purposes of the appeal, the Court of Appeal noted that it would consider the claimant to have been 17 as of the relevant date, and therefore now 20 years of age at the time of the appeal. The age of the child will eventually be determined by a judge in the Administrative Court. See R (A) v Croydon LBC; R(M) v Lambeth LBC [2009] 1 WLR 2557.) 

The local authority provided the claimant with accommodation under s.20 of the Children Act 1989. The claimant therefore became a "looked-after" child. In 2009, the local authority wrote to SO and told him that the authority would discontinue its support of him, and that it would not provide housing for him. The authority gave two reasons: 1) First, it believed that the now-adult SO would soon be deported because his asylum application had failed, and had no prospects of success on appeal; 2) And in any event SO was eligible for assistance under s.4 of the Immigration and Asylum Act 1999, which provides for central government assistance to asylum seekers who are destitute. The local authority contended it was permitted to take into account the assistance that might be given the claimant under the 1999 Act.  SO challenged the decision by judicial review. 

The matter came before Calvert-Smith J. (See [2010] EWCA 634, Admin.) Local authority counsel now sought to argue that a further reason existed for denying housing assistance to this now adult claimant. The local authority contended that Parliament had never intended to give power to local authorities to provide funding for accommodation for former looked-after children. The local authority argued that Parliament, in the Children (Leaving Care) Act 2000, did not intend to give this onerous duty to local authorities. The claimant contended in response that the language used by Parliament in ss.23C(4)(a), (b) and (c), and 23C(5) should be interpreted to mean that the local authorities had been given this duty to provide assistance with accommodation insofar as the relevant former looked-after child's welfare required assistance. 

Calvert Smith J agreed with the local authority. He held that the local authority had no power under s.23C(4)(c) of the Children Act 1989 to provide accommodation to an adult asylum seeker, notwithstanding that the applicant was a former looked-after child. Not surprisingly, the judgment was viewed with relief by local authorities, and seen by children's rights groups as a refusal by the Administrative Court to follow the intention of Parliament with regard to state duties to children. 

The Court of Appeal allowed the claimant's appeal. The Court of Appeal,  per Lord Justice Tomlinson, held that Parliament in s23C of the Children Act 1989 had in fact provided power for a local authority to provide accommodation to a former looked-after child, and that the power was to be construed as a duty, insofar as the welfare of the child requires it. 

Tomlinson LJ states that a "crucial reason" for his (and the Court of Appeal's) judgment comes from the legislative history of  the language used by Parliament in 2000, when Parliament by the Children (Leaving Care) Act 2000 inserted into the Children Act 1989 sections 23A, 23B, 23C, and 24A and 24B. In particular, Tomlinson LJ was convinced by arguments put forward on behalf of the appellants that the particular language used by Parliament at s23C had been construed in the past by the Court of Appeal to mean that assistance with housing could be provided. 

The legislative history provides an insight into how Parliament in the last 50 years of the 20th century sought to provide a safety net for children in need. It is worth reviewing the social history in order to understand the legislative intent. 

The story begins, as is often the case when dealing with welfare state legislation, with the Labour government elected in 1945. The Children Act 1948 was enacted as a direct result of what has been called "one of the greatest reforming documents of the twentieth century," the Curtis Report.2  A committee chaired by the civil servant and educator Myra Curtis had been created by Parliament because of public outrage at the ill-treatment of children in the care of the state. The case of Dennis O'Neill, a child boarded out by a local authority to abusive foster parents living on an isolated Shropshire farm, had been revealed to the public by an inquiry chaired by Sir Walter Monkton KC. The inquiry—much as later inquiries would in the 1980's—created a climate that would allow a complete reform of the law surrounding state intervention in childhood. Dennis O'Neill died after being worked to death on the farm. After he was boarded out, he received almost no visits from social workers. The Monkton inquiry revealed this was not an isolated case. 

The Curtis Committee made more some 60 recommendations., many of which made their way into the legislation that followed. The legislation that resulted from the Curtis Committee's report was the Children Act 1948. The Act for the first time required local authorities to create specialist children's departments. Trained social workers under the direction of a "children's officer' would, under the Act, carry out the duties of the local authority to children in need. Under the 1948 Act, the power of the old Poor Law authorities to pass a resolution assuming the rights of a parent over a child was formally granted to local government. Local authorities, as recommended by the Curtis Committee, would seek to act as the substitute parents of abandoned or abused children, and would have the same (or similar) duties that all parents owe their children: a duty to provide food and shelter, and a duty to prevent children from suffering harm. 

A variety of reasons might prompt the local authority to act. But without a "fit person" order, local authorities were in theory powerless to keep children from their parents. In 1952, Parliament permitted local authorities to remove children, even in cases where the parent was not also prosecuted for the crime of cruelty to children, which had been a requirement of the 1948 Act. (See Children and Young Persons (Amendment) Act 1952). In 1958, Parliament granted power to trial court judges hearing divorce disputes to order the children of the family to be taken into the care of the local authority, when the welfare of the child required it. 

The focus on removal of children by the legislation, however, was increasingly seen to be misplaced. Local authorities, under this view, should work to keep families together, and in particular where poverty was the primary driving factor behind the breakup of a family unit, the local authority should focus on providing assistance to the family in order to keep the family intact. 

In 1960, Parliament established the Committee on Children and Young Persons (also referred to as the Ingleby Committee). The Committee heard evidence from social workers who stated they were often being placed in situations that required them to act outside any legislative authority in order to keep families together. The emphasis on preventive social work meant that some local authorities were providing emergency cash grants to homeless families. The legislation in fact required social workers to await the family break up before intervening. The Ingleby Committee praised the work of those departments seeking to help the child before the crisis made help impossible. The Children and Young Persons Act 1963 sought to implement some of the recommendations of the committee. The Act gave to local authorities power to employ staff specifically for preventive work, and attempted to implement a family-centred approach to social service intervention. 

Crucially, Section 1 of the 1963 Act provided as follows:  

"It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under the Children Act 1948, the principal Act or the principal Scottish Act, or to bring children before a juvenile court, and any provisions made by a local authority under this subsection may, if the local authority think fit, include provision for giving assistance in kind or, in exceptional cases, in cash." 

In 1980, Parliament re-enacted s.1 of the 1963 Act when it consolidated child care legislation in the Child Care Act 1980. In 1981, the Court of Appeal confirmed that the language used by Parliament (in particular, "giving assistance in kind, or, in exceptional cases, in cash") meant that local authorities had the power to provide assistance with accommodation. See Attorney General, ex rel. Tilley v Wandsworth LBC [1981] 1 WLR 854, CA. The Court of Appeal confirmed this interpretation in 1988, in the case of R v Tower Hamlets LBC, ex parte Monaf (1988) 20 HLR 529. The Court of Appeal held in that case that the word "assistance" in s.1 of the 1980 Act included the power to provide or pay for accommodation. 

It was against this legislative background that Parliament in 1989 enacted the Children Act 1989. At section 17(6) of the Children Act 1989, similar language as set out above was used by Parliament to describe the duties of a local authority to children in need within a local authority's area.3 

In November, 2000, the Children (Leaving Care) Act 2000 inserted into the Children Act 1989 specific duties to children leaving the care of local authorities. At s.23(C) (4) (a), (b) and (c), Parliament provided as follows: 

(4) It is the duty of the local authority to give a former relevant child:
 a) assistance of the kind referred to in section 24B(1), to the extent that his  welfare requires it;
 b) assistance of the kind referred to in section 24B(2), to the extent that his  welfare and his educational or training needs require it;
 c) other assistance, to the extent that his welfare requires it. 

Section 23C(5) provides that the assistance given under section 4(c) may be in kind or, in exceptional circumstances, in cash. 

The language used by Parliament in those sections therefore tracks closely the language used by Parliament in 1963 and 1980. That language has already been held on two occasions to encompass assistance in housing as well as assistance in other areas of need. That means, after R(SO) v London Borough of Barking and Dagenham, there really can be no further question about local authority duties regarding provision of housing assistance to children who have been in their care: when the child's welfare (or the welfare of the former looked-after child) requires it, assistance with accommodation must be provided. 

To make matters even more onerous for local authorities, Tomlinson LJ and the Court of Appeal also held that the authority cannot depend on other legislation and other state-provision of support when it considers the welfare needs of former looked-after children. Therefore it would be wrong in law for the local authority to determine that assistance is available to the child from, for example, the Secretary of State under the Immigration and Asylum Act 1999. That Act gives the Secretary of State the power to provide assistance to failed asylum seekers who appear to be destitute or to be likely to become destitute. If the former looked-after child is also a failed asylum seeker, that child must look first to the local authority with the duty to provide a pathway plan for him or her. 

If it is clear that this duty exists, the question of how this duty is to be funded remains distressingly unclear. That, of course, remains in the end a matter for Parliament. This government cannot simply continue to tell local authorities to write cheques on an account central government refuses to fund. The government must either provide the funds, or seek by legislation to amend the Children Act 1989. 

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Footnotes

[1] See R (J) v Caerphilly County Borough Council [2005] EWHC 586; [2005] 2 FLR 860, para 45: "A pathway plan must clearly identify the child's needs, and what is to be done about them, by whom and by when. Or, if another aphorism would help, a pathway plan must spell who does what, where and when." 

[2] See Watkin, Documents on Health and Social Services: 1834-1975 (Methuen 1975), p. 420. 

[3] As noted by Tomlinson LJ in SO v.London Borough of Barking and Dagenham , section 17(6) was amended in 2002 by the Adoption and Children Act 2002, which inserted into the section language specifically permitting assistance with accommodation for children in need. The language was inserted because of a decision by the Court of Appeal in the case of R(A) v LB Lambeth [2001] EWCA Civ 1624, where the Court held that section 17(6) did NOT encompass the power to provide assistance with housing. But that decision was later labelled per incuriam  by the Court in the later case of R(W) v Lambeth LBC [2002]All ER 901. The Court accepted that in fact the original language of s.17(6) permitted assistance with housing.