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A (R on the application of) v Coventry City Council [2009] EWHC 34 (Admin)

Judgment arising from judicial review proceedings concerning a local authority’s decision that the claimant had been accommodated under a private fostering arrangement and was not eligible for continuing financial assistance.

The claimant had been living with a friend’s mother since he was 15 (he is now 17) after falling out with his father. In 2007 the friend’s mother visited the local authority seeking assistance for looking after the claimant. The local authority decided that the claimant was being privately fostered and, in these proceedings, argued that a duty had never arisen to accommodate him. Counsel for the claimant argued that the local authority had not made it clear that the friend’s mother should look to the father for support and therefore the authority could be seen to have been providing the accommodation.

In this judgment, Antony Edwards-Stuart QC, sitting as a Deputy High Court judge, reviews the facts and relevant case law and statutes. He finds, following in particular the decision in Collins v Knowsley, that it can be concluded that

“If a potential foster parent is allowed by the local authority to believe that she will receive financial support from the authority…. then it may be concluded that the local authority was exercising its functions under sections 20 and 23 of the 1989 Act…”

He therefore agreed with the claimant and found that a duty under s20 of the Children Act had arisen as the local authority had never made it clear that the claimant would be accommodated at the expense of the friend’s mother. He then made an order that local authority should pay a weekly allowance until the claimant reached his 18th birthday. He also found that the local authority’s decision that it was a private fostering arrangement was unsupportable as, without certainty in duration of accommodation, the claimant was a child in need requiring assistance.

Neutral Citation Number: [2009] EWHC 34 (Admin)

Case No: CO/10458/2007

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 22 January 2009


Sitting as a Deputy Judge of the High Court
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THE QUEEN on the application of A (Claimant)

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(Transcript of the Handed Down Judgment of
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Mr Ramby de Mello (instructed by Coventry Law Centre) for the Claimant
Mr Bryan McGuire (instructed by Coventry City Council) for the Defendant

Hearing date: 10 December 2008
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As Approved by the Court
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Mr Antony Edwards-Stuart QC : 
1. Late one night in early February 2007, the Claimant (to whom I shall refer as Terry) left his father’s house and went round to the home of a Ms Elizabeth Casey, with whom his elder brother, Matthew, had been staying, saying that he had been thrown out by his father’s partner.  Terry was then aged about 15¼.  Matthew had been staying for some time at the home of Ms Casey, who was the mother of his friend Christopher. She had effectively taken Matthew in as one of the family.  She agreed that Terry could stay there too.

2. Terry’s mother had died about three years earlier, and her death was followed a couple of weeks later by the death of Terry’s other elder brother, Stephen, who was severely disabled.  At that time their father had left their mother, and so the two surviving brothers were left to fend for themselves as best they could on their own at home.  After about four months, Matthew went off to live with Ms Casey and Terry went to stay with his elder married step sister.

3. It seems that Terry was happy with his step sister’s family, who treated him as one of their own.  However, after about a year or so Terry went on holiday with his father and his new partner, Marie, probably in about the summer or autumn of 2005.  During the holiday they asked him if he would like to live with them; apparently, they were going to have an extension built and he would be able to have a room of his own.  So Terry went to live with his father.  It was a three bedroom house in which there were already living three children under nine (two step brothers and a step sister), Terry’s father and Marie.  Terry had to share a bed with his father whilst Marie slept downstairs.  The extension was not built and, unsurprisingly, these unsatisfactory arrangements for the family’s accommodation did not work.  On the night in February 2007 to which I referred at the outset, Terry returned from skateboarding a little later than usual, tempers frayed and Marie told him that she wanted him out of the house.  He telephoned his brother who told him that he could go and stay in Ms Casey’s house where he was living.

4. Since then, Terry has remained with Ms Casey, with whom he has been very happy.  She has cared for and supported him ever since, almost entirely at her own expense.  He is now 17 and attending a carpentry course at a City College in Coventry.  Ms Casey’s kindness to Terry reflects enormous credit on her and her care has been beyond reproach.  The principal question before the court is under what arrangements, if any, Terry was and is being accommodated by Ms Casey.

The claim
5. Terry, acting initially through Ms Casey, as his next friend, brought a claim seeking judicial review of the failure by the Defendant (the Council) to make a proper assessment of his needs in respect of financial assistance and of the decision thereafter to withdraw financial support from the date of his sixteenth birthday, 11 November 2007. He sought in addition various consequential declarations and orders.

6. However, by Amended Grounds, for which permission was given on 30 July 2008, Terry seeks to challenge the Council’s considered decision that Terry was accommodated by Ms Casey pursuant to a private fostering arrangements and that Terry was not eligible for financial assistance.  By an earlier order made by Forbes J on 20 February 2008, the application for permission to apply for judicial review was to be “rolled up” with the substantive application.  I gave permission to apply during the hearing and so this judgment is concerned only with the substantive application.

7. Essentially, the central point in the case is whether Terry was (or should have been) provided with accommodation by the Council under section 20 of the Children Act 1989, with all the consequences that that entails, or whether there was indeed a private fostering arrangement made between Ms Casey and Terry’s father (or, alternatively, as it seems to have been suggested at one point in an Independent Investigator’s report of the Defendant’s, with Terry himself).  In a letter dated 23 October 2007, the Council asserted that Terry was privately fostered, by an arrangement made between Ms Casey and Terry’s father.  All subsequent documents originating from the Council have proceeded upon the assumption that there was a private fostering arrangement.

8. At the hearing Mr Bryan McGuire, who appeared for the Council, directed his submissions to the question of whether the section 20 duty ever arose, rather than to upholding the case based on the existence of the private fostering arrangement.  The Council’s point is very simple: Terry did not require accommodation because he already had it, what he (or Ms Casey) required was money.  The response of Mr De Mello, who appeared for Terry, is that Terry required accommodation and that the Council is to be taken as having provided it because it never made it clear to Ms Casey that she was being expected to look to Terry’s father for the necessary financial support (or to provide it herself) and that it would not be provided by the Council.

The background to the claims and findings
9. The Council’s involvement in this part of story appears to have begun on about 28 March 2007, when Ms Casey went to the Council’s Coundon office to explain the position and to say how difficult she was finding it to support Terry without any financial support.  She says that she told the person she saw that she was getting into arrears with her rent and Council Tax, and that she didn’t want Terry to be taken into care - which is what would happen if she didn’t receive some financial assistance.

10. It seems to be accepted that this visit took place (see the Council’s letter of 23 October 2007, at page 227 of the Trial Bundle), although there appears to have been no record of this conversation.  I accept that the visit and conversation took place as Ms Casey describes, mainly because that is exactly what one might have expected to have happened and also because it is not inconsistent with any of the near contemporaneous documents.  This visit should have triggered an initial assessment by the Council, which according to the relevant guidelines should have taken place within 7 days (see “Framework for the Assessment of Children in Need and their Families”, paragraph 3.9).

11. Unfortunately this did not happen. The first visit by a Children & Family Worker (together with a social worker from Fostering Services) to Ms Casey’s home appears to have taken place on 21 June 2007 (not 4 June 2007 as suggested by the Initial Assessment - see the Council’s Stage 2 Report, TB page 206). The Initial Assessment records also that there were further visits on 20 July, 17 and 31 August 2007, but the Stage 2 report suggests that these were probably visits by Ms Casey to the Council Offices.  To the extent that it is necessary to do so, I find that the visits probably took place as noted in the Stage 2 report, and not as recorded in the Initial Assessment. 

12. The Initial Assessment appears to have been completed on 2 September 2007 by a Children & Family Worker who probably saw Ms Casey no more than twice (see the Council’s Stage 2 Report, TB page 206).  The reason why this assessment took nearly 5 months, and not the 7 days that the guidelines require, was at least in part attributable to the fact that Children & Family Worker concerned, who it seems was still under training, had not realised that she was supposed to do it (see the Council’s Stage 2 Report, TB page 207).  It is to be noted also that the Fostering Team Social Worker is recorded as saying that Children & Family Worker was not clear about her role or what she needed to do (see the Council’s Stage 2 Report, TB page 208).

13. It is Ms Casey’s case that she told the social workers, both during the June 2007 visit and subsequently, that she could not afford to support Terry any longer and that if she did not get some financial assistance from the Council either Terry would have to return to his father or he would have to go into care.  However, at paragraph 13.5 of the Council’s Stage 2 Report (TB page 210), the findings record that:

“During the first visit . . .  on 21 June 2007 [Ms Casey] was clearly told that this was a private fostering situation and the department were [sic] not responsible for funding the young person’s placement.”

If this is correct, then it is a little odd that a month later (as recorded in the following paragraph of the report) Ms Casey is said to have asked the Council why she was not receiving the full fostering allowance.

14. The Initial Assessment, by contrast, presents a rather different picture to that reflected by the statement in the Council’s Stage 2 Report quoted above.  It is noted, on page 9 (TB, page 115) that:

“[Ms Casey] has made it clear that if she does not get some support from social care then Terry will have to return to live with his father or go into care.

Terry is very clear about not returning to live with his father and wishes to stop with Ms Casey.”

15. The Fostering Assessment, which was not completed until 7 November 2007, must also have been based largely on information given at the visit on 21 June 2007.  It recorded Terry’s views in even stronger terms, noting that he said that he would run away if required to return to his father’s home (TB, page 135).  As to Ms Casey’s position, the assessment recorded that “Throughout the placement [Ms Casey] has indicated that she requires financial support to care for Terry” (TB, page 124).

16. The conclusion in the Initial Assessment was to similar effect, and was one with which both Terry and Ms Casey were said to be in agreement.  It was in the following terms:

“My conclusion is that this may be a private fostering placement which should be supported financially by Terry’s father.  However, as he is not able to support this due to debts of his own, this could effect the placement with Terry coming up into care.  Therefore I would recommend that social care support Elizabeth until Terry is 16 in which case he could claim housing benefit to pay [Ms Casey].”  (My emphasis)

If, as the Council claims, it had been made clear to Ms Casey all along that there was no question of funding being provided by the Council, then this conclusion is, to say the least, most inappropriately worded.

17. As to the attitude of Terry’s father, the Initial Assessment recorded that Terry had had no contact with his father since moving in with Ms Casey.  However, Ms Casey did make contact with him on one occasion, about a week or so after she Casey had visited the Council’s offices on 28 March.  She went to see Terry’s father to collect some clothes and to ask him to give her Terry’s child benefit book, which he did.  As a result she was able to claim and claimed child benefit for Terry from 16 April 2007 onwards and to claim the child tax credit (she was still working at the time).  That appears to have been the only contact between either Ms Casey or Terry and his father during the 6 months or so after he ran away.

18. The Fostering Assessment, after noting that Ms Casey was a widow on limited income whose requests for support “are real”, contained the following passage in its Conclusion (TB, page 136):

“[The father’s] lack of interaction and contributing in terms of information, authorisation and funding raise the question as to whether he has appropriately exercised his parental responsibility or whether he has abandoned Terry.”

I observe that this is wholly inconsistent with the existence of any agreement by Terry’s father to fund a private fostering arrangement.

19. Pausing here, in the light of the contents of the Initial Assessment and the Fostering Assessment, I make the following findings of fact as to the position during the period June to August 2007:

i) Terry was being looked after by Ms Casey because he had turned up on her doorstep seeking shelter and she had generously taken him in.  There was no prior arrangement of any sort (apart from the telephone conversation between Terry and his brother, Matthew, which had taken place very shortly beforehand).
ii) At the initial visit on 21 June 2007 Ms Casey told the social workers that she could not continue to look after Terry without financial assistance from the Council, failing which Terry would have either to go back to his father or be taken into care.
iii) Terry told the social workers that he wanted to stay with Ms Casey and was not prepared to be returned to his father and that, if he was, he would run away.
iv) From the time that Terry left his father’s home, his father had taken no steps to make contact with Terry or to involve himself in any arrangements for Terry’s care, apart from agreeing to hand over the child benefit book to Ms Casey when she called on him in early April 2007.
v) The Children & Family Worker identified the appropriate response to the needs identified - at least so far as she was concerned – to be the provision of financial support to Ms Casey so that she could continue to care for Terry.
vi) Ms Casey was reassured, or at least given the clear impression, on 21 June 2007 that a way would be found to provide her with financial assistance so that she could continue to care for Terry.  She was not told that this was a private fostering situation with the result that the Council would not be accepting responsibility for funding Terry’s placement (it may well be that the expression “private fostering” was used at some point or another, but I am quite satisfied that, contrary to the position adopted subsequently by the Council, the financial implications of this for which it contends were never explained to Ms Casey).

20. I have already referred to the Council’s assertion, made in a letter dated 23 October 2007 (TB, page 227), that Terry was privately fostered, by an arrangement made privately between Ms Casey and Terry’s father.  In the light of my findings set out above this is not a sustainable assertion.  If there was a private fostering arrangement, it was not one made as a result of anything done by Terry’s father.

21. To continue with the story, in about mid September 2007 Ms Casey lost her job (because she had been taking too much time off work).  This appears to have prompted the Council to give her an allowance under section 17 of the Children Act 1989 of £50 per week, which was continued until Terry’s 16th birthday on 11 November 2007.  She had already received some modest section 17 payments, totalling £180 in all, towards items such as school uniform and a school trip.  In addition, Ms Casey was by this time in serious arrears with her rent and Council Tax, to the extent of about £900.  Also in September 2007, Terry started a carpentry course at a City College in Coventry (incidentally thereby undermining the basis for an assurance given to Ms Casey by the Children & Family Worker that when Terry was 16 he would be able to claim housing benefit which he could then pass to her).

22. On 27 September 2007 the Coventry Law Centre, who had been instructed by Ms Casey, wrote to the Council to say that Terry was a child in need who fell under sections 17 and 20 of the Children Act 1989 and to complain about the lack of appropriate assessments and financial assistance.  This elicited the Council’s letter of 23 October 2007 from the Children’s Social Care Team, to which I have already referred, asserting the existence of a private fostering arrangement and saying that the responsibility for paying for Terry’s care and accommodation rested with his father.  Thereafter the claim for judicial review was made by a Claim Form dated 22 November 2007.

The legislative framework
23. Under the heading “Provision of accommodation for children: general”, section 20 of the Children Act 1989 provides:

“(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) . . .
(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.”

24. In addition to the specific duty which is owed to any child in need who falls within the scope of section 20, the Council owes a general duty to children in need as a class under section 17(1) of the Act.  That includes safeguarding and promoting the welfare of children in their area who are in need “by providing a range and level of services appropriate to those children’s needs”. 

25. By sub-section (6) the services provided by the Council “may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash”.  The reference to the provision of accommodation was added by the Adoption and Children Act 2002.  As will be seen from my consideration of the authorities, this amendment appears to have had an effect on the way in which a local authority can approach the task of considering whether or not a child falling within the section “requires accommodation”.

26. Section 17(10) defines the meaning of a child in need for the Purposes of Part III of the Act to include a child who (a) “is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services” or (b) whose “health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services”.   In relation to this, Mr McGuire points out that this definition necessarily involves having regard to the future in deciding whether the child is presently in need of services.  This is a fair point.  However, since this definition applies also to section 20, it must follow that the suitability of accommodation for a child in need must also be judged, at least to some extent, by reference to something more than just its immediate condition.  For example, I cannot see how accommodation with a family that was on the point of being evicted from its home could be regarded as suitable.

27. It is not in dispute that Terry was a child in need, within the meaning of section 20.  That is expressly recorded at page 11 of the Initial Assessment (TB, page 117).  It is also not in dispute that he was in the Council’s area.  Although I did not understand it to be formally conceded that Terry’s father was prevented from providing Terry with suitable accommodation or care within the meaning of the section, Mr McGuire did not put forward any argument to the contrary.  I find that Terry fell within this category.

28. Mr McGuire’s argument is that “there never was a concern that Terry required accommodation or was in fact on the verge of requiring accommodation” for the simple reason that he was being accommodated by Ms Casey.  Mr de Mello, for Terry, submits that the accommodation that the child lacks must be suitable accommodation - a proposition that Mr McGuire accepts - and that accommodation that is temporary and precarious is not suitable.  Mr de Mello submits that Terry’s accommodation with Ms Casey was both temporary and precarious, or at least that was the only reasonable conclusion that a decision maker could reach, because Ms Casey could not continue to provide it unless she received funding and there was no prospect whatever that any such funding would come from Terry’s father.

29. If Terry was a person who appeared to the Council to require accommodation and was provided with it under section 20, then he would have become a “looked after” child: this involves the Council in a wide range of obligations, as described by Baroness Hale of Richmond in R (M) v Hammersmith and Fulham LBC [2008] UKHL 14; 1 WLR 535, at paragraphs 20 and 21.  By contrast, any assistance or services provided under section 17 are at the discretion of the local authority (that discretion to be exercised in the context of its general duty to safeguard and promote the welfare of children in need within its area).

30. It is a matter of record that the Council made no decision as to whether or not Terry required accommodation at the time of or shortly after Ms Casey’s visit to the Council offices on 28 March 2007, because they did virtually nothing (apart from appointing someone to the case on 10 April 2007 and writing thereafter to the wrong address).  If the Council made a decision about this at all, then it seems that they only did so after completion of the Initial Assessment in September 2007.  The first statement of the Council’s position was in the letter of 23 October 2007.

The authorities
31. Although a number of authorities have been cited to me, there are only two or three cases in which the question raised by this claim has been considered, either directly or indirectly.

32. In London Borough of Southwark v D [2007] EWCA Civ 182, the case concerned a girl, S, who was born in Jamaica in October 1990.  At all material times, the mother lived in Jamaica and the father, who was not married to the mother, lived in England (in Southwark).  In 2001, aged 11, S came to England to live with her father but her mother retained sole parental responsibility for her.  The father had had relationships with a number of women, one of whom was ED. In the course of her relationship with the father ED cared for S, mainly at her own home, which was in Lambeth.  ED arranged to enrol S at the school where ED's own daughter attended, which in fact was in Southwark.

33. ED's relationship with the father ended in 2003, and, in May 2003, Southwark placed S with local authority foster parents on account of concerns about her father’s treatment of her. The placement was not successful. S was very unhappy. She left the foster parents and went to stay with ED for about two months, with Southwark's knowledge and consent. She then returned to live with her father. In December 2003, the father visited Jamaica and left S in the care of JA, another girlfriend or former girlfriend of his, who lived in Tottenham. In January 2004, S returned to live with her father.

34. On about 18 January 2004, this arrangement broke down and S went back to JA.  She told the school staff that her father had been violent to her and that she did not wish to return to him. The school contacted Southwark Social Services to tell them of this allegation of violence and also that the father was coming to the school later in the day to collect S. Southwark instructed the school not to allow the father to take S away. It said that it would send someone from the social services department and also someone from the Police Child Protection team to the school.

35. A meeting was convened in the late afternoon attended by the father, who admitted that he had been violent towards S.  It appears that S had told the school staff that she would like to go to stay or live with ED, as she felt safe there, to which her father agreed.  An officer of the Council, a Mr Dallas, telephoned ED, who was at work, and asked her whether she would care for S.  She agreed to do so and it was arranged that S would be taken to ED's house and left in the care of her eldest child.  That was done and S lived with ED ever since.

36. The following day, ED attended at Mr Dallas's office at his request. Mr Dallas told her that social services knew that RB had been violent to S in the past. He told ED that someone from his office would visit her within a few days and that steps would be taken to offer her assistance. He did not say anything about the length of time for which ED was to care for S.  Because ED was concerned for S's welfare, she indicated her willingness to cooperate. Nothing specific was said about the financial arrangements and ED assumed that these would be made by 'someone from the office'. However, no one visited her. ED telephoned Mr Dallas on a number of occasions but still no one came.

37. On 31 January 2004, Mr Dallas spoke to S's mother in Jamaica by telephone and she consented to S being cared for by ED. It was evident from his notes that Mr Dallas regarded the arrangement he had made as a private fostering arrangement.  By contrast the notes he made of his conversations with ED were silent as to the legal basis of the arrangements being made.  ED found it difficult to care for S without financial support. She asked Mr Dallas for support and, on four occasions between January and March 2004, he arranged for her to receive modest lump sums: £230 in all.

38. A summary of the principal argument before the Court of Appeal can be taken from the judgment of the court delivered by Janet Smith LJ.  She said:

“48.  We turn to the substance of appeal. Was Southwark ever under a section 20(1) duty to provide accommodation for S? As we have said, before this Court, Southwark accepted not only that S was a child in need but also that her father, who had been caring for her, was, for the foreseeable future, prevented from providing such care. Southwark contended that its section 20(1) duty was on the verge of arising but never crystallised, because it did not appear to the authority that S required accommodation; ED was willing to provide it.

49.  We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to 'side-step' that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case. Usually, a private fostering arrangement will come about as the result of discussions between the proposed foster parent and either the child's parent(s) or a person with parental responsibility. But we accept that there might be occasions when a private arrangement is made without such direct contact. We accept that there might be cases in which the local authority plays a part in bringing about such an arrangement. However, where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. If an authority wishes to play some role in making a private arrangement, it must make the nature of the arrangement plain to those involved. If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all.

50.  In the present case, the local authority took a central role in making the arrangements for S to live with ED. It directed the school that the father must not be allowed to take S away. It arranged a meeting attended by all the relevant parties. The father was told that he must have no contact with S. Those factors are far more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement. The father consented to the proposed arrangement with ED. S was consulted as to her wishes. Mr Dallas contacted ED to ask her if she would take S in. Mr Dallas delivered S to ED's home and checked that the arrangements were satisfactory. Those factors were equally consistent with an exercise of statutory powers as with the making of a private arrangement. However, there was no contact between ED and either parent. Mr Dallas said nothing to ED, either on the telephone or the following day at his office, about the arrangement being a private one, in which she would have to look to the parents for financial support or to Lambeth for section 17 discretionary assistance. Far from it, he gave her to understand that Southwark would arrange financial support. In our judgment, the judge was quite right to conclude that this was not a private fostering arrangement. Indeed, it is hard to see how he could have come to any other conclusion.” (My emphasis)

39. In the passage quoted above, the court did not address directly the argument that S never required accommodation because ED was at all times willing to provide it, but I have little trouble in concluding that on the facts of that case the argument was well nigh hopeless because S was not already living with ED when Southwark first became involved.  What is perhaps of much more relevance to the present case are the observations about the existence of a private fostering arrangement in circumstances where the implications of that arrangement have not been brought to the attention of the proposed foster parent.  The court was accepting the possibility that a local authority may be treated as accepting financial responsibility if the situation is that the proposed foster parent has been led to believe that the local authority will provide suitable funding. The question, as the Court said at paragraph 58 of the judgment is: what did the local authority in fact do?

40. In R (G) v London Borough of Southwark [2008] EWCA Civ 877, the Court of Appeal had to consider the interaction between sections 17 and 20 of the Children Act 1989.   The case concerned a 17 year old Somalian youth, G, who had arrived in the UK with his mother in 1998.  In June 2007 he fell out with his mother and it was accepted that he could no longer be expected to live with her.  After spending a couple of months sleeping on friends’ sofas and in their cars, he saw solicitors in early September and, armed with a suitable letter, he then presented himself at Southwark social services department seeking accommodation.  The following day his solicitors wrote to Southwark requesting an assessment under section 17 of the Children Act 1989 and asking that accommodation be provided under section 20 of the Act.

41. An assessment was completed promptly and recommended, amongst other things, that G’s housing need could be met by a referral to the Southwark Homeless Persons Unit, where he would be treated as a priority need because he was then under 18.  His solicitors took issue with this approach and reiterated their view that he should be provided with accommodation under section 20.  Southwark’s response, which was the decision under challenge, was that “section 20 is not appropriate as [G] has no identified need for social services support, and his needs can satisfactorily be met through the provision of housing and referrals to other support agencies.”

42. It was accepted that at the relevant time G was a child in need, was within Southwark’s area and fell within sub-section 20(1)(c) of the 1989 Act.  The question, as Longmore LJ stated at paragraph 11 of his judgment, was “whether G appeared to the local authority to require accommodation”.  Much of the argument centred on the wording of guidance contained in a 2003 Circular, which said that

“The amendment to Section 17 did not 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.”

43. The submission made on behalf of G was that there was no valid distinction between “requiring accommodation” and “requiring help with accommodation”: either the child required accommodation because he did not have it or he did not require accommodation because he already had it.  As to this argument, Longmore LJ made the following observations:

“21.  None of this is, in my judgment, contrary to the statutory wording. It is true that section 20 does not expressly draw a distinction between a child who ‘requires accommodation’ and in child who ‘requires help with accommodation’. But the fact that section 17(6) empowers a local authority to provide accommodation as part of its general duty to safeguard and promote the welfare of children within their area must presuppose that not every child (or even every child in need who satisfies the three criteria in section 20(1) of the 1989 Act) must require accommodation under section 20; otherwise there would be no room for the evaluative judgment which everyone agrees the local authority must make pursuant to the statutory phrase ‘who appears to them to require accommodation’.

22.  The most that, as it seems to me, can be said against the circular is that it may be it is not clear enough that a decision that a child requires ‘help with accommodation’ (as opposed to the actual provision of accommodation under section 20) should not be driven by the consideration that expensive consequences will result from any decision to accommodate him under section 20. But it is, of course, the case that it should not be so driven. The decision, whether a child requires accommodation or only help with accommodation, is to be a free-standing decision based on the needs of the child without regard to the financial consequences of the decision. I am, however, satisfied that the dichotomy between requiring accommodation and requiring help with accommodation is lawful.”

44. At paragraph 24, Longmore LJ said:

“It is, of course, important, as has been said in some of the cases, that the local authority should not side-step its section 20 obligations by deciding that accommodation or help with accommodation can be provided under section 17. But there is no evidence that that has happened here unless it can be said, as Mr Wise does say, that the decision letter is not properly based on the assessment or that, on its true reading, the decision letter itself accepts that accommodation is required under section 20.”

45. Of the assessment itself he said, at paragraph 25, that “It is fair to say that parts of the assessment do refer to G's need for accommodation but, in my view, only in the sense that everyone needs accommodation who does not already have it.”

46. Having referred to the distinction made in the decision letter between providing accommodation and providing help with accommodation, at paragraph 27 Longmore LJ expressed his conclusion in the following terms:

“The decision is, of course, based on the assessment and points out that there is no identified need for social services support. It also points out that G will be treated by the Housing Department as being in priority need and concludes that G's needs (for accommodation and other matters) can be satisfactorily met through the provision of housing and referrals to other support agencies, saying that he simply requires help with accommodation. I do not read the phrase ‘provision of housing’ as accepting that G requires accommodation for the purpose of section 20. The Decision Letter comes to the opposite conclusion and is, in my opinion, entitled to do so.”

47. In a powerful dissenting judgment, Rix LJ disagreed with this conclusion.  At paragraph 40, he summarised the problem thus: “So in truth the only issue in this appeal is whether Southwark was entitled to say that it did not appear to it that G required accommodation within section 20(1) when all around, including Southwark's own housing department, acknowledged that G did require accommodation.”  He continued, in the following paragraph, as follows:

“How is it then that Southwark is able to put forward a case that it did not appear to it that G required accommodation? The reasoning, as it has been advocated, has varied, but it is essentially, I think, because Southwark says that it is entitled to take the position that, in circumstances where its housing department would be obliged to provide accommodation under the Housing Act, it can conclude that there is no need for it to provide, and therefore G does not require, accommodation for the purposes of section 20(1) of the Children Act. In my judgment, that only has to be stated to be seen to be a non sequitur; but, as I shall seek to show, it is also inconsistent with the primacy which, in a case within section 20(1), must be accorded to the Children Act regime over the Housing Act regime.”

48. At paragraph 44 Rix LJ made the following observations on section 20:

“It may be observed that, even though the underlying concept of the "looked after" child concerns children who are not only "in need" but also require the assistance of the local authority in some other respect, such as accommodation or the safeguarding of welfare, nevertheless where section 20(1) is concerned, the extra test is the need for accommodation (as a result of certain defined causes the general effect of which is that the child is alone) not a more general test of the need for the intervention of social services. That is in my judgment plain on the wording of the section, and has been acknowledged in the course of argument by Mr Bryan McGuire, who has appeared on behalf of Southwark. In this respect the need for accommodation as a result of the defined causes is itself the test for the incidence of the more general duties of looking after which the Children Act regime applies. That is subject, however, to the relevance of the child's wishes and feelings. It may be that an older child will make it plain that he does not want or require the provision of accommodation under section 20. It may be that accommodation is not "required" under section 20 because, for example, a private fostering relationship is available (see Southwark London Borough Council v. D [2007] EWCA Civ 182, [2007] 1 FLR 2181 at paras 49/50). In such a case, it may be that provision of accommodation by the local authority is not required, even in a case otherwise within section 20(1). As Baroness Hale of Richmond said in R(M) v. Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535 at para 43:

‘On the other hand, as will be obvious from what has gone before, I have reservations about the narrow approach of Stanley Burnton J in the Sutton case [R(S) v. Sutton London Borough Council [2007] EWHC 1196 (Admin), [2007] 2 FLR 849, [2007] EWCA Civ 790, 10 CCLR 615] to the significance of the child's wishes under section 20(6), on which the Court of Appeal declined to express a concluded view. It seems to me that there may well be cases in which there is a choice between section 17 and section 20, where the wishes of the child, at least of an older child who is fully informed of the consequences of the choices before her, may determine the matter. It is most unlikely that section 20 was intended to operate compulsorily against a child who is competent to decide for herself. The whole object of the 1989 Act was to draw a clear distinction between voluntary and compulsory powers and to require that compulsion could only be used after due process of law.”  (My emphasis)

49. I have to confess that, left to my own devices, I would have found the reasoning of Rix LJ hard to refute.  However, Pill LJ agreed with Longmore LJ.  At paragraph 88 of his judgment he said:

“I agree with Longmore LJ's reasoning at paragraph 21. Not every young person who satisfies the other criteria in section 20(1) must be held to require accommodation within the meaning of the section. The local authority are entitled to conclude, in the case of some young people, that they are sufficiently capable and resourceful, or in such social circumstances, that they can find their own accommodation, if necessary with help provided by the local authority under other statutory powers.”

50. It seems to me that the effect of the introduction in 2002 of a power to provide accommodation under section 17 is that section 20 is now to be read as if it said “who appears to them to require accommodation under this section as a result of . . .”, so that the decision maker is entitled to have regard as to whether or not the whole panoply of the local authority’s services for looking after children is required in the particular case taking into account, in particular, any known wishes of the child.  If it is not, and if the accommodation needed by the child can be provided by other means, then the local authority does not have to provide accommodation under section 20(1) even though although the other requirements of the sub-section are met.  At least, this is clearly the current position in the light of the decision in R (G) v Southwark.

51. Whilst this decision will be of crucial importance wherever there is a challenge on grounds of perversity to a decision by a local authority that a homeless child does not require accommodation under section 20, its relevance to the facts of the present case may depend on the nature of the decision (if any) that the Council actually took.

52. The most recent case in this area, and the one whose facts are closest to those of the present case, is the decision by Michael Supperstone QC, sitting as a Deputy High Court Judge, in Sarah Jane Collins v Knowsley Metropolitan Borough Council [2008] EWHC 2551 (Admin).  The claim arose out of events that began in October 2003, when the Claimant, S, who was aged 14, came to the attention of the local authority.  Her mother had died in a fire two years earlier and she had been living with her step-father, but he had a drink problem and some time before October 2003 she had left the step-father’s home and had gone to live with various friends.   By the time the social services department began to investigate her situation she was living with her boyfriend’s family and was being looked after by his mother, Dorothy Leyden.  In early November she  was seen by a social worker from the Children and Families Team, whom she told that she did not want to go back home and wanted to be placed in foster care.  It was decided that she should remain at Mrs Leyden’s house for the time being.  The social worker subsequently completed a placement request, noting that she was “currently staying with her boyfriend and his family, in an overcrowded house.  This is a temporary arrangement which cannot be continued.”  It concluded by recommending that she needed “a stable environment where she will receive emotional support and appropriate guidance and boundaries”.

53. When S was told the following day, 26 November, that a request had been made for a foster placement, she said that she did not want this any more, but wanted to stay where she was.  S was adamant that she would not return to her father or consider the prospect of going into care.  Later that day the situation was discussed with Mrs Leyden, who said that she was happy for S to continue to live with her.  It seems to have been intended that there should be a planning meeting to discuss S’s future, but this never took place.  On 16 December 2003 S’s step father died.

54. On 12 January 2004 there was a home visit to Mrs Leyden and S, and Mrs Leyden was given £50 for food and essentials under section 17 of the 1989 Act.  In June 2004 Mrs Leyden began raising concerns about the level of financial support that she was receiving.  In late 2005 she became aware that she might be or have been entitled to a fostering allowance and she later consulted solicitors.  On 28 April 2006 solicitors whom she had instructed wrote to the Council saying that S was a “looked after child” and that Mrs Leyden should be treated as a foster parent.  The Council rejected this.
55. It was Mrs Leyden’s case that, after S’s step father died, she was approached by the social worker and asked if she would be prepared to care for S on a long term basis.  The Council’s position, on the other hand, was that S was already living with Mrs Leyden when it first became aware of her situation and appeared happy and settled.  The Council asserted that it neither arranged nor set up the accommodation arrangements, although it decided not to intervene when it became clear that S could not be persuaded otherwise.

56. At the hearing the Council argued that the case was to be distinguished from R (D) v London Borough of Southwark because in that case the local authority had taken a central role in making the arrangements for the child to live with the carer, whereas in the present case S already had somewhere to live when the Council became involved and so a duty under section 20 did not arise.  The Court of Appeal’s decision in G, which had been decided about 6 weeks earlier, does not appear to have been referred to.

57. The Deputy Judge held that there was “no material distinction” between the case of D and the facts of the case before him.  Until 26 November 2003 S was not living with the Leydens other than as part of “a temporary arrangement” (by then she had been there for some 3-4 weeks).  The Council then asked S what she wanted to do and, having ascertained her views, Mrs Leyden was then asked (so the Judge inferred) whether she was agreeable to it.  From then on various steps were taken to arrange a planning meeting for S’s future and Mrs Leyden was provided with some discretionary financial assistance under section 17.  Like the present case, it was not explained to Mrs Leyden that she would not be receiving any financial support because the Council was not responsible for S (as it should have been if that was the Council’s position).  In the words of the Judge: “rather she was left in the unsatisfactory position where she agreed to allow [S] to live with her permanently, but was not told the basis upon which that would be, namely, one that would not involve the [Council] or any other party being obliged to provide financial support” (paragraph 32).

58. The Judge’s conclusion was that the Defendant Council did have a duty to provide accommodation under section 20 of the 1989 Act and he found, on the facts, that a placement was made with Mrs Leyden under section 23(2) of the Act.

59. It may be that the conclusion reached by Mr Michael Supperstone QC about the existence of the duty might have been expressed in different terms if his attention had been drawn to the recent decision of the Court of Appeal in G, but I doubt whether anything turns on it in the light of his conclusion on the facts.  The decision to make the placement with Mrs Leyden presupposed or carried with it a decision that S required accommodation under section 20(1), and it was not a case where S could have been left to find her own accommodation with assistance from the council – she needed a proper home.

The issues
60. Since the Council did not actually take any formal decision about the question of providing accommodation for Terry under section 20 of the 1989 Act at any stage between March and September 2007, I consider - in the light of the authorities discussed above - that the issues in this case must be approached in two stages:

i) What did the Council actually do or, more pertinently, what (if anything) is the Council to be taken to have done, between March and September 2007 about providing Terry with accommodation under section 20 of the 1989 Act?
ii) If the answer to (1) is nothing, was the Council’s decision as reflected in its letter of 23 October 2007 not to provide Terry with accommodation under section 20 of the 1989 Act a decision that was reasonably open to it?  This question obviously requires the application of a test of perversity according to the well established principles.

The first question - what did the Council do?
61. In my judgment it is plain from the passage that I have cited above from Janet Smith LJ’s judgment in London Borough of Southwark v D, paragraphs 48-50, that a local authority may by its conduct in dealing with a potential or proposed foster parent be treated as having taken a decision which it may not have taken or even intended to take.  If a potential foster parent is allowed by the local authority to believe that she will receive financial support from the authority, rather than have to look to her own resources to fund the cost of keeping the child, then it may be concluded that the local authority was exercising its functions under sections 20 and 23 of the 1989 Act and was not simply facilitating a private fostering arrangement.

62. The facts of Collins v Knowsley are about as close to the facts of the present case as they could be.  It is true that in that case S’s accommodation arrangements at the Leyden’s were described in the request for a placement as a “temporary arrangement which cannot be continued”, but it must be remembered that at the time when this was prepared S had expressed a wish to be placed in foster care.  The fact is that the arrangement with the Leydens continued for many months and the Council supported it.  There is no record that when she was first approached Mrs Leyden said anything about her ability to look after S being contingent on appropriate funding.

63. By contrast, in this case Ms Casey made it clear from the outset that her ability to keep Terry on any permanent basis would be dependent on the provision of appropriate funding, and her financial position was known to the Council.

64. It seems to me that I should follow the approach taken by Mr Michael Supperstone QC in Collins v Knowsley unless I consider that it was not in accordance with other authority that is binding on me.  For the reasons I have already given, although it appears that his attention was not drawn to the decision of the Court of Appeal in G, I doubt whether that would have altered his conclusion on the facts and the decision that he accordingly reached.  I see no basis on which I should not follow his approach and I see every reason to do so.

65. So, like Collins v Knowsley, this is a case that falls squarely within the circumstances discussed by Janet Smith LJ in R (D) v London Borough of Southwark where a local authority has allowed a proposed foster parent to believe that she would receive financial support for looking after a child, as opposed to having to do so at her own expense.

66. Accordingly, in my judgment this is a case where it is to be concluded that, in its dealings with Ms Casey between March and September 2007, the Council is to be taken to have exercised its powers and duties as a public authority pursuant to sections 20 and 23 of the 1989 Act.  This conclusion makes it unnecessary for me to go on and consider the second question, but in case I am wrong I shall briefly state my views on that question also.

The second question – was the Council’s decision one that it could properly have taken?
67. When approaching this question the court must first ask what, on the balance of probabilities, was the true situation in March/early April 2007 when the question of providing accommodation to Terry should first have been addressed.  Given that an important feature of the assessment involves the likely permanence or security of any accommodation under consideration, the time at which the question is asked may affect the answer.

68. What the Council appears to have done was to approach the matter of Terry’s accommodation from the outset upon the assumption that there was or may have been in place a private fostering arrangement made between Terry’s father and Ms Casey.  This is clear from the letter of 23 October 2007 (TB, page 27).  The letter makes no reference to any decision under section 20 of the 1989 Act.

69. In a letter from the Children’s Neighbourhood Services department of the Council dated 21 December 2007, written after completion of the Stage 2 report, the author stated that she had considered the reports carefully “and have [sic] decided to accept all the findings and recommendations” (TB, page 194).  In the Summary of Findings the Stage 2 report stated that “in February 2007 [Ms Casey] began to care full time for a 15 year old young man to whom she is not related, under a Private Fostering arrangement” (TB, page 198).   The only reference in the Stage 2 report as to how the placement came about is in paragraph 13.9.  This stated:  “In this case the agreement was a private one that had been set up by the complainant with the young person himself”.  However, the report continued by saying that in cases where the Council had not been involved in setting up the child’s placement, the funding should be provided by the child’s parents.  It said, at paragraph 13.10 “In this case the father has parental responsibility and part of his responsibility is to contribute financially to his child’s care.  If he was not able or was not prepared to meet these responsibilities it would be [Ms Casey’s] responsibility to apply for benefits in order to care for the young person.” (TB, page 211).

70. However, as the assessments made clear, Terry’s father had simply not co-operated at any stage of the process.  The only step he had taken in respect of Terry was to hand over the child benefit book to Ms Casey in early April 2007.  Since by that time he had not been looking after Terry for some 8-10 weeks, he had no entitlement to claim the benefit and he was giving up nothing by handing over the benefit book. 

71. I would have thought that it was self evident that a 15 year old child could not enter into a binding private fostering arrangement with another adult.  The arrangement must be made either by the parents (or someone with parental responsibility) or by a local authority acting under its statutory powers.  However, whether or not any such arrangement is in existence at any particular time is a question of fact: it is not a matter that can be decided by the exercise of a discretionary judgment on the part of the Council.  True it is that the Council may have the power in certain circumstances to create such an arrangement, but that is a different matter.

72. It seems that in practice what happened was that the Council in effect decided that it did not need to consider whether Terry required accommodation under section 20 of the 1989 Act because his accommodation was already catered for under a private fostering arrangement.  If and insofar as this amounted to a decision under section 20, then it was a decision based on a false premise.

73. The likely position in March/early April 2007 was that Ms Casey would have told the social workers much the same as what she told them in June, except that there would probably have been greater uncertainty as to whether the arrangement would work and for how long Ms Casey would be able to provide Terry with accommodation if told that no funding would be available.

74. In my judgment accommodation which is uncertain as to duration because it is not founded on any secure financial footing is not accommodation that can be said to be suitable for a 15 year old who is a child in need, however caring the prospective family may appear to be.  Accordingly, a child in that situation lacks suitable accommodation and therefore requires it unless he is a resourceful person whose accommodation needs can be met in other ways (as in G).  I doubt whether that will often be the case where a 15 year old boy is concerned.  I therefore conclude that, on the facts of this case, leaving Terry in the care of Ms Casey in circumstances where it was questionable as to how long she could afford to keep him would not have amounted to him having accommodation suitable for a 15 year old – it was too precarious and insecure.  Accordingly, Terry was a child in need who required accommodation and in my judgment no local authority could reasonably have concluded otherwise.

75. However, it is open to doubt as to whether the Council ever really addressed this question at all.  The Council proceeded throughout on the assumption that Terry was being looked after by Ms Casey pursuant to a private fostering arrangement made between her and Terry’s father.  Since this was, as I have found, a wrong assumption, the Council’s decision as reflected in its letter of 23 October 2007 was one made on a false basis and is therefore a decision which cannot stand.

76. As I have indicated above, my conclusion on the second question is that if the Council had asked itself the right question, namely whether Terry required accommodation 20, the only answer to which it could reasonably have come at any time prior to 23 October 2007 was that accommodation ought, in the circumstances of this case, to have been provided to Terry under section 20 of the 1989 Act.

77. In my judgment this is a case where the Council must be taken to have arranged to provide accommodation for Terry at its own expense because that it is what it appeared to Ms Casey that it was doing.  I am in no doubt that it was never made clear to Ms Casey during the Initial Assessment that she would be expected to accommodate Terry at her own expense if that is what she chose to do.  On the contrary, every indication was given that funds of one sort or another would be made available to assist her.  Whether or not this was what the Council intended, or whether it was the product of the inexperience of those involved in dealing with Ms Casey, in my judgment does not matter.

78. So far as the decision in the letter of 23 October 2007 is concerned, it was made on a false basis (the assumed existence of the private fostering arrangement) and is therefore a decision which cannot stand.

79. For these reasons the Claimant is entitled to

i) a declaration that with effect from 21 June 2007 he was a child looked after by the Defendant within the meaning of section 22 of the Children Act 1989, and
ii) an order requiring the Defendant to pay the appropriate weekly allowance to Ms Casey from that date until the Claimant’s 18th birthday (for these purposes sums waived or remitted by the Defendant in relation to Ms Casey’s rent or Council Tax are to be treated as payments made on account of such allowance).

80. I will hear submissions from the parties as to the precise form of the relief that should be granted, the question of costs and on any ancillary matters.