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“Can’t We Make the Local Authority Pay for It?”

Andrew Pack, care lawyer with Brighton & Hove City Council, considers the court’s powers to compel a local authority to meet the costs of a particular action.

As a long-standing (or perhaps that should be long-suffering) local authority lawyer, one aspect which comes up fairly routinely in a case is this: where some action needs to be done or service obtained, can the local authority be compelled to pay for it?

Over the years, I have been asked to commit local authorities to pay for an 8-seater "people carrier" (for one child), cleaning ladies, therapy, trips to Disneyland, legal costs for an intervener, travel costs to see the court expert, six months deposit on a flat, extensions to a house, private school fees and on one occasion a pool table.

My approach, after seeing whether the social work team will agree to pay this without query, is generally to advise on whether it is expenditure which the court can order the local authority to pay.  The starting point of that exercise is to consider where the power to make such an order can be found.

Categories of expenditure the court has jurisdiction to order the local authority to pay

An expert assessment commissioned within the proceedings
Following the case of Calderdale Metropolitan Borough Council v (1) S (2) Legal Services Commission [2004] EWHC 2529 (Fam), [2005] 1 FLR 751 the High Court determined the principles to be applied by a court when deciding whether the local authority should meet the entire cost of such an assessment, or should share the cost equally with each of the publicly funded parties.

A starting point will be to look at the thoroughness of the local authority's assessment and information gathering process, and to consider whether the expert assessment proposed is to add to that assessment (as an independent viewpoint, perhaps, to bring a fresh discipline to bear) or whether the assessment proposed is to compensate for a paucity of information in the assessment process which should have been carried out by the local authority. In the latter case, it may well be that the local authority should bear the costs, rather than them being equally shared.  

A residential assessment of the child with a parent
Following a body of case law, culminating in Kent County Council v G & Ors [2005] UKHL 65, [2006] 1 FLR 601, the court has jurisdiction to compel a local authority to fund a residential assessment PROVIDED that it falls within the narrow construction of section 38(6) of the Children Act 1989 as set out in this House of Lords authority. It is an authority that is often ignored, but is vitally important. The primary subject of the assessment has to be the child and it has to be an assessment, and not an intervention to bring about change.

Improper conduct in proceedings that led to wasted costs
The court has power to make wasted costs orders in proceedings. There are two relatively recent authorities on this which are important for local authorities.

The first is Re T (Children) (Care Proceedings: Costs) [2012] UKSC 36, [2013] 1 FLR 133 in which the Supreme Court determined that costs orders could not be used to make a local authority pay for the legal costs of an intervener, even when the findings sought had not been obtained, and confirmed that wasted costs orders in Children Act cases are restricted to reprehensible behaviour or an unreasonable stance. [For an article analysing this judgment, written (shortly after it was handed down) by Dorothea Gartland and Penny Logan, please click here.]

The second is Re A (A Child) (Costs) [2013] EWCA Civ 43 in which the Court of Appeal confirmed that even behaviour of that sort by a party could result in a costs order only if it could be shown to have caused additional costs, and could not be made as a merely punitive order.

There is nothing else within the Children Act 1989, or regulations, or the Family Procedure Rules 2010, which gives the court jurisdiction to order the local authority to pay costs. 

In practice, although there is no jurisdiction to order costs as to the obtaining of disclosure evidence, such as medical records or police documents, it tends to be understood that all parties should contribute to the costs of obtaining this disclosure material.

Categories of matters in respect of which the local authority has a statutory duty or a power
Resting just below those categories of expenditure over which the court has direct jurisdiction, are those matters in respect of which the local authority has statutory duties (or a discretionary power) which could potentially be scrutinised with a view to seeing whether the local authority is exercising those duties reasonably, or whether their decision not to use their power is reasonable.

Provision of services under section 17 of the Children Act 1989 
The local authority has a duty to provide services to children in need in its area. Section 17 states:

"17. —(1) It shall be the general duty of every local authority(in addition to the other duties imposed on them by this Part)—
 (a)  to safeguard and promote the welfare of children within their area who are in need; and
 (b)  so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."

However, it is worth noting that the courts have been reluctant in judicial review proceedings to compel a local authority to meet its section 17 duty in a particular way  [see, for example R (on the application of T) v A Local Authority [2004] 1 FLR 601].

Provision of accommodation to children under section 20 of the Children Act 1989
It is important to note that this duty does not extend to a duty to accommodate the parent or carer of that child:  R v B London Borough Council, ex parte G [2001] EWCA Civ 540.

Note also that the courts in addressing judicial reviews of local authorities' exercise of their section 20 duties have counselled strongly against taking an "over legalistic" approach in considering how the local authority provide such accommodation or the nature of it: R (on the application of S) v London Borough of Croydon [2011] EWHC 2467 (Admin).

Provision of payment of fostering allowance to foster carers
This category includes family members who are determined by the courts to be fostering the child, rather than doing so as a private family arrangement.  There are cases almost too innumerable to specify, but most recently SA v A Local Authority (Intervening) [2011] EWCA Civ 1303.

Provision of payment of allowance to a Special Guardian
The Special Guardianship Regulations 2005 and section 14A-E of the Children Act 1989 set out provisions for the local authority to provide support services, including financial support for special guardians.

It is now settled law that a local authority must act in accordance with its own policy, provided that its policy takes the level of Fostering Allowance as a starting point – see B v X Metropolitan Borough Council [2010] EWHC 467 (Admin).

Payments under Schedule 2 to the Children Act 1989
The relatively little-known, and yet to be litigated, Schedule 2 to the Children Act 1989 includes the following provisions:

Paragraph 5 – where a child is considered by a local authority to be suffering, or to be likely to suffer, ill treatment at the hands of an adult with whom he is living and the local authority asks the adult to move out of the home, the authority may provide that person with assistance, including financial assistance, to obtain alternative accommodation. It could therefore be argued that a decision has to be made about whether to do this, and such a decision would have to avoid being "Wednesbury unreasonable".

Paragraph  7 – every local authority must take steps to reduce the need to bring proceedings for care and supervision orders with respect to children in their area  (it being as yet untested as to whether this duty could be narrowed down to services to a particular family). 

Paragraph 8 – every local authority shall make such provision as it considers appropriate for specified services to be available with respect to children in need within their area while they are living with their families. These include:

(a) advice, guidance and counselling;
(b) occupational, social, cultural or recreational activities;
(c) home help (which may include laundry facilities);
(d) facilities for, or assistance with, travelling to and from home for the purpose of taking advantage of any other service provided under this Act or of any similar service;
(e) assistance to enable the child concerned and his family to have a holiday.

Once again, given that this is a discretionary provision ("such services as it considers appropriate")  the  issue would be one of whether the decision to do so, or not to do so, is "Wednesbury unreasonable".

Funding of legal costs of a prospective Special Guardian
It is arguable, though this has yet to be tested, that a local authority might be liable for the legal costs of a prospective Special Guardian.  Although the Special Guardianship Regulations 2005 do not (as most practitioners commonly believe) set out a duty on the local authority to pay the legal costs of a prospective Special Guardian, this is an area which would probably be challenged by way of judicial review.

The relevant paragraph of the Regulations is not an apparent and obvious 'duty' to fund those costs (instead it specifies that when considering whether to meet the legal costs of a prospective Special Guardian the fact that they have sufficient resources to pay their own costs is not a factor which can lawfully be taken into account).

Regulation 13(4) states:

"The local authority must disregard the considerations in paragraph (3) where they are considering providing financial support in respect of legal costs, including court fees, in a case where a special guardianship order is applied for in respect of a child who is looked after by the local authority and the authority support the making of the order or an application is made to vary or discharge a special guardianship order in respect of such a child."

The Special Guardianship support package
In the case of Suffolk County Council v Nottinghamshire County Council [2012] EWCA Civ 1640 the Court of Appeal make it plain that the court has no jurisdiction over what services and support the local authority is to provide under the Special Guardianship Order, but make the obvious point that the Court is the final arbiter on whether the Special Guardianship Order should be made.

In that case at para 30, Mr Justice Hedley said:

"Section 14F imposes duties on a local authority but it does not empower the family court to direct how or (in some aspects) even whether such duties are to be performed. Moreover the statute gives the court no power to make directions as to payment of money or provision of services. Of course judges may properly express views to local authorities and are entitled no doubt to expect that they will receive serious consideration (just as judges can and do express views about adoption and care plans) and of course it is only the judge who in the end can make the special guardianship order."

Leaving care services
These are set out in section 23A to section 23E of the Children Act 1989, applying to people who were in care before they were 16, but are now aged between 16 and 21 – or older than 21 if in tertiary education.

Other than those areas where the court has jurisdiction, or there is a specified duty on the local authority  [including for example arising from housing legislation or community care legislation outside the scope of this article]  where the court might for example, give a judgment setting out that the refusal to provide such services appears to be 'unreasonable' thus opening the door to a judicial review,  any request for the local authority to pay for a particular service or item is only a request, and not something which could be compelled.