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R (C) v Nottingham City Council [2010] EWCA Civ 790

Appeal in judicial review proceedings against decision that local authority did not owe duties to the claimants under sections 23A, 23B and 23C of the Children Act 1989. Appeal refused.

Case No: C1/2010/2387
Neutral Citation Number: [2010] EWCA Civ 790
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 1st July 2010

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The Queen on the application of
C & ANR  Appellants

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(DAR Transcript of
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Mr Azeem Suterwalla (instructed by Messrs Bhatia Best) appeared on behalf of the Appellants.

Mr David Lock (instructed by Messrs Freeth Cartwright) appeared on behalf of the Respondent.
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(As Approved)
Crown Copyright©

Lord Justice Jackson: 
1. This judgment is in four parts: namely, part one, introduction; part two, the facts; part three, the present proceedings; part four, the preliminary issues. 

Part One: Introduction
2. This is a claim for judicial review of the decision by Nottingham City Council not to treat the first and second appellants as "former relevant children" within the meaning of the Children Act 1989 ("the Children Act") and the Children (Leaving Care) (England) Regulations 2001 ("the 2001 Regulations").  In this judgment, I shall refer to Nottingham City Council as "the council"; I shall refer to the Children Section of the Social Services Department of the Council as "the Children's Services Department"; I shall refer to the Housing Department of the Nottingham City Council as "the Housing Department".

3. A number of statutory provisions are relevant to these proceedings.  Section 20(1) of the Children Act provides:

"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) there being no person who has parental responsibility for him;

(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."

Section 22(1) of the Children Act provides that in the Act any child:

"…who is looked after by a local authority is a reference to a child who is -

(a) in their care; or

(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 sections 17, 23B and 24B."

Section 23C of the Children Act provides:

"(1) Each local authority shall have the duties provided for in this section towards—

(a) a person who has been a relevant child for the purposes of section 23A (and would be one if he were under eighteen), and in relation to whom they were the last responsible authority; and

(b) a person who was being looked after by them when he attained the age of eighteen, and immediately before ceasing to be looked after was an eligible child,

and in this section such a person is referred to as a 'former relevant child'.

(2) It is the duty of the local authority to take reasonable steps—

(a) to keep in touch with a former relevant child whether he is within their area or not; and

(b) if they lose touch with him, to re-establish contact.

(3) It is the duty of the local authority—

(a) to continue the appointment of a personal adviser for a former relevant child; and

(b) to continue to keep his pathway plan under regular review.

(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.

(5) The assistance given under subsection (4)(c) may be in kind or, in exceptional circumstances, in cash.

(6) Subject to subsection (7), the duties set out in subsections (2), (3) and (4) subsist until the former relevant child reaches the age of twenty-one."

Paragraph 19B of Schedule 2 to the Children Act provides:

"(1) A local authority shall have the following additional functions in relation to an eligible child whom they are looking after.

(2) In sub-paragraph (1) 'eligible child' means, subject to sub-paragraph (3), a child who—

(a) is aged sixteen or seventeen; and

(b) has been looked after by a local authority for a prescribed period, or periods amounting in all to a prescribed period, which began after he reached a prescribed age and ended after he reached the age of sixteen.

(3) The Secretary of State may prescribe—

(a) additional categories of eligible children; and

(b) categories of children who are not to be eligible children despite falling within sub-paragraph (2).

(4) For each eligible child, the local authority shall carry out an assessment of his needs with a view to determining what advice, assistance and support it would be appropriate for them to provide him under this Act—

(a) while they are still looking after him; and

(b) after they cease to look after him,

and shall then prepare a pathway plan for him.

(5) The local authority shall keep the pathway plan under regular review."

4. The 2001 Regulations state that the prescribed period referred to in paragraph 19B of Schedule 2 to the Children Act is 13 weeks.  Regulations 5 to 12 of the 2001 Regulations set out the various services which a local authority must provide to former relevant children between the ages of 18 and 21.  Those services include the following: assessment of the former relevant children, including assessment of their needs in relation to health, development, training, employment, support, their financial needs and so forth; preparation of pathway plans; review of pathway plans; assistance with accommodation; and similar matters.  The assistance with accommodation includes according priority need status to former relevant children between the ages of 18 and 21.  As the House of Lords has observed on more than one occasion, these rights of former relevant children are significant rights, and can be of considerable value to them.

5. After that brief outline of the relevant primary and subordinate legislation, I must now turn to the facts.

Part Two: The Facts
6. The first appellant was born on 7 October 1991, and so is now aged 18 years and eight months.  The second appellant was born on 15 May 1991, and so is now aged 19.  Both the first appellant and the second appellant presented serious behavioural problems in their late teenage years.  The first appellant was living with her father, Mr Godber, when her behaviour deteriorated.  In November 2007 Mr Godber told the first appellant that she must leave home because of her unruly behaviour.  By that time, the first appellant had formed a relationship with the second appellant, and was living in a hostel for the homeless.  The first appellant therefore went to live with the second appellant at the hostel upon leaving her father's house.

7. The second appellant had run into difficulties at a somewhat earlier stage.  The second appellant had lived for many years with his mother, Mrs Carder and his stepfather.  As the second appellant's behaviour deteriorated, he frequently went to stay with his aunt, Karen Seagrave, who lived nearby.  In January 2007 Mrs Carder and Ms Seagrave referred the second appellant to the Children's Services Department on account of the second appellant's extremely bad behaviour, which included matters of violence and theft.  The Children's Services Department carried out an assessment of the second appellant.  The Department noted the problems with the second appellant's behaviour, but concluded that matters were not such that the Children's Services Department should step in and provide separate accommodation for the second appellant.

8. The second appellant's family were not satisfied with the conclusion reached by the Children's Services Department.  The Department's records show a number of occasions where the family reported the second appellant's bad behaviour.  The records also show the Department stuck to its conclusion that intervention was not required.  The second appellant was seen as being an extremely difficult and rebellious teenager, but one who should remain living with his family.  It was, however, indicated to the second appellant that when he reached the age of 16 he would be able to apply to the Housing Department for his own independent accommodation.

9. On 15 May 2007 the second appellant attained the age of 16.  On the day after his birthday he went to the Housing Department and sought housing assistance on the grounds of difficulty living with his family.  The Housing Department carried out an assessment.  The Housing Department in its assessment forms recorded the various incidents of violent conflict between the second appellant and his family.  The upshot of this assessment was that the Housing Department decided to place the second appellant in a hostel for the homeless. 

10. The second appellant was initially placed in a hostel called New Albion, where he had a self-contained flat.  His financial support came from welfare benefits.  After that, the second appellant was moved to a different hostel called the The Elms.  Unfortunately, he was evicted from that hostel on the grounds of bad behaviour. He lived for a period with his aunt, Karen Seagrave. He then returned to the Housing Department, who placed him in a hostel at 210 Mansfield Road, Nottingham.  It was while the second appellant was living at 210 Mansfield Road that the first appellant and the second appellant met and they began a relationship with one another.

11. When the first appellant left her father's house, she went to the Housing Department and asked them to accommodate her at the hostel at 210 Mansfield Road.  The Housing Department carried out an assessment of the first appellant's circumstances. The Housing Department noted the difficulties which the first appellant had been having with her father.  The situation as reported by the first appellant to the Housing Department is pithily summed up in an entry in the Housing File as follows:

"Dad has kicked me out because of behaviour at school.  He has had a fine through the door from my lack of attending school, he says he's had enough of me and just wants me gone and we're always arguing."

12. In due course, the Housing Department decided that the first appellant more than likely would need independent accommodation, and it placed her at the hostel at 210 Mansfield Road where she could share a room with the second appellant.  In the meantime, before that decision had formally been reached, the first appellant had been living unofficially with the second appellant at that hostel address.

13. The first and second appellants continued living together at the hostel until June 2008.  During this period the first appellant became pregnant.  In April 2008 the Children's Services Department were notified by hostel staff of the first appellant's pregnancy.  A social worker in that department investigated and concluded that the arrangements for the first appellant were satisfactory.  She had somewhere to live and was still receiving education. 

14. Unfortunately, on 2 June 2008, the first and second appellants were arrested on suspicion of dealing in Class A drugs.  They were both immediately evicted from the hostel.  The first appellant was granted bail by the police on the condition that she lived at her father's address. So the first appellant duly returned to Mr Godber's house.  She lived there for about three days.  The second appellant was granted bail on condition that he lived at his aunt's home. So he duly returned to his aunt's address for a period which is not entirely clear but appears to have been about three days.  After that, the Housing Department arranged for both appellants to live at the New Albion Hostel, and that appears to have been accepted, presumably by a variation of the bail conditions.

15. It was during June 2008 that the Children's Services Department became involved once more.  The Children's Services Department was kept informed of events concerning the arrest and the grant of bail and so forth.  The Children's Services Department liaised with the midwife who was looking after the first appellant.  However, it was the Housing Department, not the Children's Services Department, which arranged for the appellants' new accommodation.  Although the Children's Services Department had not arranged the accommodation, the representatives of that department visited the appellants in their new home and carried out an assessment of the appellants' unborn child.  They completed that assessment on 8 July 2008.  The Children's Services Department noted that both the appellants were young, but seemed to be taking on the looming responsibility of caring for a baby.  The social workers noted that there was a possibility of the appellants losing their accommodation at the New Albion, if it was held that they had become intentionally homeless.  It was also noted that both the appellants continued to have contact with their respective families.

16. A trainee social worker called Kathryn McGovern became involved in the case in August 2008.  She carried out a further assessment.  She noted that the appellants had obtained clothes and equipment for their baby and she believed that they would be competent parents. 

17. On 8 September 2008, unfortunately, the second appellant was given 28 days' notice to quit New Albion.  Apparently this was because of suspicions of drug dealing and domestic violence.  The first and second appellants wanted to stay together. So the Housing Department transferred both of them to another hostel called Highwood House.  This transfer occurred on 18 September.

18. On 23 September the Housing Department concluded that the first and second appellants had made themselves intentionally homeless because of their earlier dealing in drugs while at 210 Mansfield Road.  The Housing Department gave notice that both appellants must quit Highwood House by 28 October.  This decision gave rise to serious and immediate problems, because the first appellant was almost eight months pregnant. 

19. The Children's Services Department arranged a "Children in Need Review" meeting to be held on 7 October 2008.   That meeting duly took place; it was attended by the first appellant, her mother, the second appellant, the second appellant's mother and stepfather, Ms McGovern and a more senior member of the Children's Services Department, Sonia Johansen.  Ms Johansen chaired the meeting.  The upshot of this meeting was a decision that the first and second appellants should go to live with Mr Godber, who was willing to accommodate them.

20. On 20 October 2008 the first and second appellants duly left Highwood House and went to live at Mr Godber's home.  On 2 November 2008 the appellants' baby was born.  The couple continued to live together at Mr Godber's house until the summer of 2009, when their relationship broke down and they went their separate ways.  The first appellant went to live with her new partner, taking the baby with her.  The second appellant, who was by then aged 18 and therefore an adult, went to stay with various friends and family members at a variety of addresses.

21. During the course of 2009 both appellants on legal advice took the view that they had been let down in the past by the Social Services Department.  The accommodation which the Housing Department had provided for them ought to have been provided by the Children's Services Department under section 20 of the Children Act.  Accordingly they took the view that between the ages of 18 and 21 both appellants should be entitled to the status of "former relevant children" within the meaning of the Children's Act and the 2001 Regulations.  This status would entitle the appellants each to receive the various services set out in the 2001 Regulations.  The status would also entitle the second appellant to priority need status for housing benefits.  The latter point was not of concern to the first appellant, because she had such status in any event by reason of having a young child.  The appellants took the view that they ought to have this status because (so they were advised) their former accommodation should be treated as having been provided under the Children's Act rather than under the homelessness provisions of Part 7 of the Housing Act 1996.

22. The appellants' solicitors asserted this claim in a letter before action to the council dated 3 June 2009.  This letter also requested provision of certain of the services which are specified in the 2001 Regulations.  By a letter dated 26 June 2009 the council's solicitors denied that the appellants had any such entitlement.  The appellants, on advice, were aggrieved by that rejection of their claim. Accordingly, they commenced the present proceedings.

Part Three: The Present Proceedings
23. By a claim form issued on 25 September 2009, the appellants applied for judicial review of the council's ongoing failure to provide the services to which they were entitled as former relevant children.  On 8 October 2009 the council served its acknowledgment of service with summary grounds of defence attached.  In those summary grounds the council denied the substance of the appellants' claim.  The council also argued that the appellants' claim was issued outside the three-month time limit provided for by CPR Rule 54.5.  Finally, in paragraph 19, the council set out its position as to the future in the following terms:

"Further there is no utility served by this claim.  If the Claimants were to approach the Defendant to seek the assistance of social workers for practical help or even the appointment of a Personal Advisor then the Defendant, even if not obliged to do so under the Children Leaving Care provisions, would be prepared to assist the Claimants.  No such approach has been made for assistance and these proceedings have been commenced instead.  The Claimants should seek a practical solution through one to one contact with social workers rather than seeking a legal solution."

24. On 12 October 2009 the appellants' application for permission to proceed with the judicial review hearing came on before HHJ Inglis, with both parties represented.  The judge noted that whatever rights the appellants may or may not have had under the Children Act, as a matter of historical fact, at all material times accommodation had been provided for the appellants under Part 7 of the Housing Act 1996 rather than under the Children Act.  The judge applied the reasoning of the House of Lords in R (M) v Hammersmith & Fulham LBC [2008] UKHL 14; [2008] 1 WLR 535.  The judge held that the appellants could not claim to have been looked after by the Children's Services Department.  Accordingly they had no entitlement to the services set out in the 2001 Regulations.  The judge refused permission to proceed on the appellants' primary claim.  The judge also refused permission to proceed on a subordinate claim, which is no longer in issue.  That subordinate claim concerned the council's failure to prepare a protocol.  A protocol was in fact then under preparation and has subsequently been produced.

25. One week after HHJ Inglis's decision refusing permission to proceed with the judicial review claim, the council repeated its previous offer.  In a letter dated 19 October 2009, the solicitors for the council wrote as follows to the appellants' solicitors:

"We are instructed to write to you renew this offer and to propose a meeting between your clients and their old social workers to discuss your clients' ongoing requirements.  We suggest that such a meeting should take place as soon as possible.  We do not think that the attendance of others would be required and we therefore ask that your clients contact their social workers to arrange a date.  We look forward to hearing from you by return with you and your clients' agreeability to such a meeting."

As the letter makes plain, the offer which was being reiterated was the offer formerly set out in paragraph 19 of the summary grounds of defence of the council.

26. The solicitors for the appellants responded on 21 October saying that they would take their clients' instructions in relation to the proposed meeting. However, no response came following the taking of any instructions.  On 23 November 2009 the solicitors for the council wrote again to the appellants' solicitors stating amongst other things:

"We note that you have still not responded to several of the points raised in our letter of 19 October, namely our proposal of a meeting ... Please respond by return as soon as possible."

Unfortunately, the offer made on more than one occasion to resolve the issue between the parties by a sensible agreement out of court, was neither accepted nor pursued. 

27. The appellants applied to the Court of Appeal for permission to appeal against the decision of HHJ Inglis.  At an oral hearing on 10 March 2010 Waller LJ gave permission to appeal against the order refusing permission to apply for judicial review.  Waller LJ directed that there should be a rolled-up hearing of the judicial review application before the Court of Appeal. In other words, the Court of Appeal would consider the question of permission to proceed with the judicial review claim and, if permission to proceed were granted, would consider the full judicial review claim.

28. Following that order, the council disclosed all relevant files and both parties served witness statements.  One of the statements served by the council was that of Ms Sonia Johansen, the senior team leader to whom I have referred in Part Two above.  Ms Johansen stated as follows in paragraph 34 of her witness statement:

"In the Council's Defence to the substantive Judicial Review application, it was made clear that if either Jacqueline or Simon were to approach the Council to seek the assistance of social workers for practical help or even the appointment of a Personal Advisor then we would be prepared to assist them, even though we do not consider that we are obliged to do so under the Children Leaving Care provisions.  Neither Jacqueline nor Simon, either directly or through their solicitors, has approached the Council to ask for this type of help."

29. In due course both parties served their skeleton arguments for the hearing in the Court of Appeal.  The respondent's skeleton argument confirmed the previous offers which had been made.  That skeleton argument also addressed the position of the second appellant in relation to housing.  Counsel for the council stated in his skeleton argument that the council's Housing Department confirmed that, despite no request being made by the claimants' solicitors to the Housing Department, the claimants would be treated as being in priority need for the purposes of the Housing Act 1996 until they reached the age of 21.  For reasons previously mentioned, that assurance was of value to the second appellant.  It did not affect the pre-existing position of the first appellant.

30. The rolled-up proceedings have come on for hearing in the Court of Appeal today.  At the start of the hearing, counsel on both sides debated two preliminary issues.  The first preliminary issue is whether the proceedings serve any useful purpose, having regard to the various offers which the council has made.  The second preliminary issue is whether the proceedings have been started out of time and, if so, whether time should be extended.  These matters were debated in advance of the substantive issues between the parties.  I must now turn, therefore, to those two preliminary issues.

Part Four: The Preliminary Issues
31. The first preliminary issue is whether these proceedings serve any useful purpose.  When counsel for the appellants, Mr Azeem Suterwalla, commenced his submissions this morning the Chancellor enquired whether either appellant had sought a personal advisor, a pathway plan or any of the other services set out in the 2001 Regulations.  Mr Suterwalla replied that the appellants' solicitors had sought such services in the letter before action dated 3 June 2009.  However, the appellants had not made any request for services since 8 October 2009, when the council started to make its series of offers.  Mr Suterwalla submitted that it was not satisfactory for the various services to be provided by the council on a voluntary basis.  Both appellants need a declaration that they are entitled to those services as a matter of statutory right.  Disputes might arise between the parties in the future as to the scope of services provided, if there is not an admission by the council or a declaration by the court of the appellants' statutory entitlement.

32. In relation to this first preliminary issue, Mr David Lock for the council made his client's position clear. The council was and is prepared to provide to the appellants on a voluntary basis all of the services set out in the 2001 Regulations, if the appellants desire those services.  So far, however, all offers of such services have been rebuffed.  The first appellant is and always has been entitled to priority status for housing because she is the mother of a young child.  As to the second appellant, the Housing Department is prepared to concede priority status, whatever the second appellant's strict legal position, until he reaches the age of 21.  The council has always recognised, said Mr Lock, that the first and second appellants are two vulnerable young people.

33. In the light of those concessions by the council, I am quite unable to see what useful purpose is served by this litigation.  The decision of the Court of Appeal in Cowl v Plymouth City Council  (Practice Note) [2001] EWCA Civ 1935; [2002] 1 WLR 803 is very much in point.  In that case, eight elderly residents of Plymouth sought to challenge by way of judicial review a decision taken by the council to close down the care home in which they were living.  The council made an offer to the claimants to treat their grounds of claim as a complaint under certain procedures operated by the Plymouth Council, and the council offered to let that complaint be subject to independent evaluation.  There would be an independent panel to look at the grounds put forward by the eight residents for challenging the closure decision.  This offer was neither accepted nor pursued by the lawyers representing the eight elderly residents. Instead the judicial review proceedings continued and in due course made their way to the Court of Appeal. 

34. The Court of Appeal was strongly critical of the approach adopted in that case.  Lord Woolf CJ, delivering the judgment of the Court of Appeal, said at paragraph 11:

"This was a very sensible proposal to make. It may not have been couched in the ideal terms but any necessary modification could and should have been the subject of negotiations. However, instead, the wheels of the litigation began turning. The letter did not stop their progress; first to a procedural hearing before Harrison J and then to a full hearing before Scott Baker J."

At paragraph 14, he added:

"It appears that one reason why the wheels of the litigation may have continued to roll is that both parties were under the impression that unless they agreed otherwise the complainants were entitled to proceed with their application for judicial review unless the complaints procedure on offer technically constituted an "alternative remedy" which would fulfil all the functions of judicial review. This is too narrow an approach to adopt when considering whether an application to judicial review should be stayed. The parties do not today, under the CPR, have a right to have a resolution of their respective contentions by judicial review in the absence of an alternative procedure which would cover exactly the same ground as judicial review. The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process."

35. At the start of the hearing in the Court of Appeal the parties rapidly came to terms, seemingly with the benefit of some judicial encouragement.  At paragraph 26 of the judgment, Lord Woolf CJ said this:

"At the opening of the hearing we therefore insisted on the parties focusing on what mattered, which was the future wellbeing of the claimants. Having made clear our views, building on the proposal which had been made in the 23 May letter, the parties had no difficulty in coming to a sensible agreement in the terms which are annexed to this judgment and will form part of the order of the court."

He added at paragraph 27:

"This case will have served some purpose if it makes it clear that the lawyers acting on both sides of a dispute of this sort are under a heavy obligation to resort to litigation only if it is really unavoidable."

36. For my part, I would echo in this case all of the sentiments which Lord Woolf CJ expressed in Cowl.  In this case also, the parties are under a heavy obligation to resort to litigation – and, I would add, to continue with litigation -- only if that is really unavoidable.  In the present case litigation is far from unavoidable.  There is on offer to the appellants the complete package of services which they are seeking to obtain.  The appellants have now obtained in practical terms all of the remedies which they require.  Therefore this litigation serves no useful purpose.  There is no need for any settlement agreement to be drawn up and attached to the judgment of this court, as was done in Cowl.  The council is bound by the offers which it has made in writing and which it has repeated through Mr Lock in this court.  This judgment is based upon the premise that those offers made by the council are irrevocable until the appellants attain the age of 21.  It is abundantly plain from the terms of the offers that that was what was intended.

37. Mr Suterwalla sought to buttress his position by pointing to the wider implications of this case.  He submitted that a decision on the main issues in this case would impact on many other young persons throughout the country.  Although Mr Suterwalla put this submission most attractively to the court, I am afraid that I do not see any force in it.  The Court of Appeal has a heavy workload. It does not exist to decide moot points.  Also, the Children's Department of Nottingham City Council has a heavy workload.  Its resources are better devoted to promoting the welfare of children in Nottingham, rather than arguing points of law whose only relevance is to other cases in which the Nottingham City Council is not involved.

38. I therefore come to the conclusion that these proceedings serve no useful purpose.  I would therefore decide the first preliminary issue in favour of the council and refuse permission to proceed with the judicial review claim.

39. The second preliminary issue does not arise.  If it were to have arisen, however, and if these proceedings genuinely concerned the welfare of the two appellants (both vulnerable young adults), I for my part would have been minded to extend time.

40. For all of the reasons which I have stated, the decision of HHJ Inglis to refuse permission to apply for judicial review must stand.  Therefore in my view this appeal should be dismissed.

Sir Andrew Morritt C:
41. I agree.

Lord Justice Rimer:
42. I also agree.

Order:  Appeal dismissed.