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R(O) v East Riding of Yorkshire County Council [2010] EWHC 489 (Admin)

Application for judicial review of a decision by a local authority to cease to consider that a child was looked after once he had been accommodated in a special needs residential school. Application refused.

The claimant was diagnosed with severe autism in 2007 after he had been taken in for respite care: at that point he became a looked after child and subject to regular reviews. A SEN statement was also prepared and a school named though the parents were not happy with that choice. They did not, however, appeal the decision. Judicial review proceedings, on different grounds from this hearing, were issued but in October 2008 the consultant psychiatrist at the respite care centre suggested that the claimant should have a 52 week residential placement, a view supported by other child professionals asked to report on the claimant. A new SEN statement was prepared and the accompanying plan stated that once the claimant moved into the residential school he would cease to be looked after under the Children Act, instead the placement would be under the Education Act 1996. The claimant began attending the new school, successfully, but the grounds for the judicial review were amended to challenge the decision that he was no longer a looked after child.

In this judgment, the central question was

"whether the obligation to a 'looked after' child under sections 22 and 23 of the Children Act 1989 can continue, notwithstanding the claimant's 52 week a year residential placement".

Cranston J provides a thorough review of the local authority's duties under the relevant sections of the Children Act 1989 and the Education Act 1996, as refined by recent case law. He also highlights the importance of the parents' needs and wishes. He concludes that there was no doubt the claimant was looked after under s22 of the Children Act when receiving respite care but that the placement in the residential school was not a social service function as the accommodation was provided under the Education Act 1996. Further, any suggestion that the local authority was "side-stepping" its obligation were contradictory as the placement was

"exactly what the family wanted, and the evidence before me is that they are pleased with it and that it meets the claimant's needs."

He also rejects the submission that the local authority acted unlawfully in terminating the looked after child status as they had approached the matter with the "anxious scrutiny" required and there was no reason to assume that the parental support would diminish once the placement started.

Neutral Citation Number: [2010] EWHC 489 (Admin)

Case No: CO/7590/2008

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/03/2010

Before :

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Between :

The Queen on the application of O Claimant

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East Riding of Yorkshire County Council Defendant

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Nicholas Bowen QC and Shu Shin Luh (instructed by Childrens' Legal Centre) for the Claimant

Stephen Bellamy QC and Sally Gore (instructed by East Riding of Yorkshire Council, Legal and Democratic Services) for the Defendant

Hearing dates: 21 and 22 January 2010
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Approved Judgment

Mr Justice Cranston :

1. This application for judicial review concerns the interface between the Education Act 1996 and the Children Act 1989.  In particular it raises an issue as to whether a local authority, in this case East Riding of Yorkshire County Council ("the Council"), is entitled to bring a child's "looked after" status to an end in circumstances where the child has accommodation at a residential school provided under the Education Act 1996 via a Statement of Special Educational Needs.  Being "looked after" has a specific statutory definition under the Children Act 1989, linked with being accommodated by a local authority pursuant to its social services functions.  Being "looked after" has specific, practical benefits. 

2. The case has been advanced on behalf of the claimant as the first case of its kind and as having significance for the many children who are "looked after" by local authorities under the Children Act 1989 but also have special educational needs.  It is said that if local authorities are entitled to bring their duties to "looked after" children under the Children Act 1989 to an end by placing them in residential schools, it will have wide and detrimental implications of preventing a significant proportion of vulnerable children from being able to avail themselves of the care package available under that legislation.  The Council contend that this claimant has a residential school able to meet all his social care and educational needs.  That is consequent on a statement of special educational needs under Part IV of the Education Act 1996.  It was obliged to educate him in this way and was entirely justified in terminating his "looked after" status under the Children Act 1989.  It has not been to his disadvantage.  In any event the Council submits that this outcome is the result of the correct interpretation of the legislation. 

The claimant

3. The claimant is a 14 year old boy.  The "Final Statement of Special Educational Needs", dated 5th January 2009, describes him as having "something likeable" about him, having behaviour which can often be extremely challenging, and having consistently underachieved at school due to his special educational needs.  His severe autistic spectrum disorder is described as a complex, pervasive developmental disorder, pervasive because it affects every area of development and developmental because it changes over an individual's life-time. "ADHD is a major comorbid disorder in children with autism which increases the complexity of difficulties and significantly undermines behavioural, social and emotional adjustment.  [The claimant's] behaviour suggests he does have significant mental health issues."  An advice from the Council's social services on 5th November 2008 referred to the claimant's "very complex pervasive special needs" and his "challenging" and "disruptive" behaviour.   There are various descriptions in the papers before the court as to how extremely challenging and disruptive that behaviour was and how it manifested itself. 

4. The claimant is the second of the four children of his mother and father, who separated early in 2005 when he was about 9 years old.  The children then lived with their mother. Subsequently, she started to cohabit with A (the claimant's litigation friend, and referred to in this judgment as the step-father).  They have had a son.  Neither is working and both are available to look after the children.  Catherine More, an experienced social worker, opined in December 2008 that in terms of the reports she had read, and her interactions with the family, the couple were "capable parents able to deliver a more acceptable standard of care to their children, ordinarily … Under normal circumstances there was nothing to suggest that they would be unable to keep children safe and on the level of emotional warmth witnessed healthy interactions between the adults and three of their children."   The family had endured a difficult time over the last few years and have felt blamed for the claimant's difficulties and abandoned by local government services until 2007.  Consequently, the relationship between the parents and others, in particular, the Council's social services department, had become strained.  

The period 1999-2006
5. The Council was involved with the family in the period 1999 to 2001 due to the parents' health problems and allegations of domestic violence.  The father was having mental health problems. In 2001 the claimant had been diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD).  He came under a consultant child and adolescent psychiatrist, Dr Astill, and was placed on medication.    In 2002 the Council became involved again and carried out a section 17 Children Act 1989 investigation and assessment. Assistance was provided in the form of activity based, daytime services.  The case was closed later that year following improvements in the situation. 

6. The Council intervened again in 2005. An initial assessment was carried out in March 2005.  It records the claimant's obsession with fire, that he regularly went missing while playing outside the home, and that he was difficult to control and unable to meet basic care needs.  The plan was to refer the claimant to family support for help with his behaviour.   There was a section 17 Children Act 1989 investigation in September 2005, when the claimant's mother reported that she could not cope with him.  The claimant had been out alone at 11pm and then at 6.45am.  The claimant's mother requested respite care in October 2005.    

7. On 12 January 2006 the Council convened a multi-agency meeting.  Behavioural concerns were canvassed.  A "children in need assessment framework support plan" was drafted. There was a child protection referral in October when the claimant's grandmother informed social services of her concerns about the claimant and his effect on the family.  In November 2006 the mother told the Council's social worker of the claimant threatening her with a knife and that he was roaming the streets without medication.  A "crisis team individual agreement and support plan" was drawn up. An allocated worker had ongoing contact with the family following this.  A sessional worker also undertook some sessions with the claimant.  Respite for the claimant was approved, initially for one weekend per month for three months.  It would take some months to identify an appropriate respite placement.  In early December 2006 the claimant was temporarily excluded from his school.

8. In December 2006 a core assessment was commissioned, and on 15 December the Council convened a multi-agency meeting.  In anticipation of this meeting Dr Astill, the claimant's consultant, wrote that the behavioural problems "seem to me to be clearly about the parental setting of limits and boundaries and parenting resourcefulness in general."  He understood that in recent months fairly intensive social services support had been provided locally to the claimant and his family.  The core assessment, completed on 23 January 2007, was a lengthy document with detailed objectives and a plan of action.  In terms of the need for stability, respite care once a month was recommended, to give the family a break.  The core assessment recommended the claimant's referral to a specialist unit of the NHS Child and Adolescent Mental Health Service, West End, Hull ("West End") for a residential evaluation.  West End has educational facilities.  The objective of the West End assessment was to assess the claimant's education and to undertake work around his self-esteem and behaviour. 

West End and the first "looked after child" review
9. The claimant was admitted to West End on 19 February 2007 and was there four months.  During the time he was at West End his school requested a Special Educational Needs assessment ("SEN") under the Education Act 1996.  Various review meetings were held during the period.  The claimant left West End on 22nd June 2007.  Minutes of the West End discharge planning meeting on 14 June 2007 record that plans for an application for a Statement of Special Needs would go ahead.  It also stated that Dr Rasool, the consultant child and adolescent psychiatrist at West End, would be recommending that the claimant could not continue in a mainstream school but would require "a special school with boarding facilities".  Various special schools, including Farrow House School, were discussed as possibilities. The claimant was to be discharged and returned to his former school for what was left of the school term pending an appropriate school being identified. West End was to continue to support the claimant, and a family sessional worker was to assist three mornings per week.  Respite care for the family was to be examined.  The discharge planning meeting was followed up by a "looked after children care plan" dated 22 June. 

10. It was at West End that the claimant was finally diagnosed as suffering from autistic spectrum disorder, as well as ADHD.  That was set out in a letter from Dr Rasool, the day following the discharge meeting, 19 June 2007.  She sent her report containing her diagnosis of and recommendations for the claimant to the Council's Special Educational Needs section. She concluded in her summary that the claimant "has a diagnosis of childhood autism comorbid with severe combined ADHD."  His difficulties were severe and pervasive and he had little understanding of social rules and norms.  It was only by modifying the environment around him that his difficulties could be managed.  She recommended

"a very specialist environment in which to be educated with a high degree of structure and boundary around him to allow him to reach his potential. It is my opinion that [the claimant] will not be able to survive mainstream school from where he will be quickly permanently excluded. The claimant therefore requires an urgent assessment of his special educational needs and a statement of special educational needs which identifies a special school for him." 

11. There was no mention of residential schooling in Dr Rasool's report,  notwithstanding what had been reported at the discharge meeting.  On 5th July 2007 Dr Maret, senior house officer to Dr Rasool, sent a discharge summary, which in three of its five recommendations/discharge plans referred to education.  Dr Maret's report did not mention any need for a residential school.

12. In July 2007 the claimant had returned to his former school, Hornsea School, on a part time basis. Sessional workers were provided and attended to his immediate care during their assigned periods.  They took the claimant on various activities away from his home.  On 13th July 2007 respite care was offered for the claimant, but he refused. Eventually, on 1st August, the claimant accepted his first weekend of respite care.  In September respite care was increased to two weekends per month.  At a multi-agency meeting in June 2008 the mother and step-father said they were happy with the respite provision provided.  At some point two of the claimant's siblings were offered and attended a Barnardo's group, to assist those with an autistic sibling.

13. The respite care meant the claimant was now a "looked after" child under the Children Act 1989.  The first looked after child review was completed on 8 October 2007.  (One part of the document is dated 8 September 2007, the other 8 October 2007.  Given that 8 September was a Saturday, the latter date is the more likely).  Under the heading "care plan" it proposed that the claimant should continue to receive the same level of respite.  Urgent consideration should be given to a specialist residential placement such as New Options, a school and children's home in Lincolnshire specialising in students with severe autism.  Under the heading "education" the same point was made "so that [the claimant's] education can be resumed."

The 1st SEN statement and further "looked after child" reviews
14. Meanwhile, on 17th July 2007 the first draft of the SEN had been prepared. On 19th October the second draft of the SEN was completed.  It named Farrow House School, an independent day special school in Hull, as an appropriate placement. This second draft was sent to the claimant's mother and step-father. The accompanying letter explained that other schools had been considered but that they either had no available places or were regarded as unsuitable. The letter advised of the statutory right to appeal. On 23 November the claimant's mother objected that Farrow House was unsuitable. Another school, Bridge House, was considered but it had no available places.  It was later decided that it was not an appropriate placement for the claimant. On 29th November the statutory SEN was issued, naming Farrow House school.  None of the reports, to which reference was made in the SEN document, recommended a residential school.  On 30 November the step-father sent an email to the Council threatening legal action. 

15. A further "looked after child" review was held on 3 December 2007.  Under the "care plan" heading in the formal document it was noted that the respite care was to continue.  The parents and the key worker were to explore all available avenues, including New Options School.  The parents were to consider an appeal against the SEN statement and to seek legal advice.  Under the heading "education" it was said that the independent reviewing officer and key worker would seek a meeting with the education programme worker to discuss a way forward.  The record of discussion at the review meeting was prepared some six weeks later.  It records that the review felt that the original preference for a specialist school, such as New Options School, still remained the most suitable course.  The mother and step-father "feel that they have not been listened to, and are becoming increasingly desperate.  [The claimant] has now been out of education for a year and this is putting the family under severe strain".  The claimant did not want to attend a school where he had "to sleep over".  The record of discussion noted that the respite care continued to work well but in itself was nowhere near sufficient to meet the claimant's needs and to provide enough of a break.  Consultation was to occur with the West End Unit "to support the parents' contention that Farrow House was not a suitable option". 

16. On 29th January 2008 the statutory time period for appealing the SEN statement to the then Special Educational and Disability Tribunal ("SENDIST") expired without any appeal being pursued.  Farrow House therefore became the statutorily determined school.  However, the mother and step-father refused to send the claimant there. A compromise was suggested by the Council which involved his temporary attendance there, pending monitoring and a further review. No reply was received.  Further "looked after child" reviews in February and June 2008 reiterated New Options School as the most suitable school.  The discussion at the review meeting as recorded was that there appeared to be a complete blockage regarding any further progress, with the Education Department insisting that Farrow House was suitable, and the parents insisting that it was not.  From the information available the review agreed that Farrow House was not suitable and emphasised that education had become the key issue and "is obscuring everything else".  The record of discussion at the June 2008 meeting was as follows:

"Whilst the respite care meets some of [the claimant's] needs, it goes not nearly far enough.  A meeting is now urgently needed with the Head of the Special Needs Section, and from the highest level of Children's Services.  The issue of funding needs to be clarified.  If there is a respite component to a residential school placement, then no doubt this will be the responsibility of Social Services, although the education part of the placement would ordinarily be the responsibility of the Education Department.

The chief cause of the frustration is, as far as could be determined in the Review, the Education Department has already agreed funding, they are just awaiting a response from Social Services.  Of course, there remains the issue of the school, which has been identified.  The Review looked at other suitable schools, concluding that it had to be one which would be able to work with [the claimant's] diagnosis – ADHD/ASD."

17. There was a multi-agency meeting on 20 June 2008.  The Council's inclusion/SEN manager reported on school availability and that Farrow House had assured him they could meet the claimant's needs.  Later in the meeting he said that the medical reports received for the SEN suggested that the claimant needed a day provision.  The claimant's mother and step-father disputed that Farrow House was suitable, stated that they had sent their preference for New Options and said that they had made a mistake in not appealing the SEN.  They wanted a residential school to add structure to the claimant's week from Monday to Friday.  The independent reviewing officer stated he had been responsible for reviewing the short break provision being provided under section 20 Children Act 1989. 

"[He] advised that reviews should focus on the provision of short break and whether this provision met [the claimant's] needs.  However educational concerns had also been a main focus in the review process.  [H]e went on to state that this had been unfair on the parents and [the claimant] as education should not be the focus.  He recollected that West End Unit had stated that [the claimant's] needs would be better met through a specialist provision.  As far as [he] was aware short breaks were offered to the parents and the claimant prior to a residential educational provision being provided.  He stated that respite was working in so far as it stands."

When the claimant's mother and step-father were asked if they were happy with the respite provision, they confirmed that they were.  In a statement for this hearing, the claimant's mother says this:

"I was satisfied with the respite care being provided in that it worked well for Robert.  However, at no time did I accept the respite provision as a substitute for a residential educational setting which I considered to be essential for [the claimant]."

18. On 24th June 2008 the claimant's solicitors wrote to the Council's Education Department complaining of a failure to provide the claimant with education otherwise than at school.  They requested one to one tuition.  On 27th June 2008, the statutory period of six months having expired, the claimant's mother and step-father requested a statutory reassessment of the claimant's educational needs. This request was received on 8th July.  Shortly after, a new core assessment was discussed with the claimant's parents.  At a multi-agency meeting on 17th July 2008 the claimant's mother and step-father again confirmed that they were happy with the level of respite care provided. 

19. It was noted by the Council's joint commissioning panel on 18th July that the parents wanted a residential placement for the claimant and were supported in this by Dr Rasool.  A request was made for a letter from Dr Rasool to verify this, since there was no record of Dr Rasool having recommended a residential placement.  The Education Department wrote to Dr Rasool to seek her advice. At a "looked after child" meeting on 12 August the claimant's mother and step-father said they were slightly more optimistic that matters would be resolved satisfactorily.  On 19th August the claimant's mother was notified in writing that the Council had commenced a reassessment of the claimant's special educational needs.  There was an email from Dr Rasool to the claimant's solicitor on 22 August setting out the need for a specialist school, although there was no mention of the need for a residential school. 

The judicial review begins
20. Meanwhile, the claimant's solicitors had sent a pre-action protocol letter on 30 June 2008.  On 12 August 2008 judicial review proceedings were issued.  As an interim measure Goldring J made an order for respite care during the summer holidays.  The permission hearing before Wyn Williams J on 26 August was adjourned at the claimant's request, and the case was listed for a rolled up hearing. The Council submitted that it was necessary for the claimant to be in full-time education so that the re-assessment of special educational needs and the core assessment could be carried out.  Wyn Williams J made an order for the Council to accommodate the claimant full-time.   The Croft, a children's home, was identified as suitable temporary accommodation for the claimant.  During the period residing at The Croft the claimant was to attend Farrow House School.

21. When the claimant visited the Croft with his mother he refused to get out of the car. In the discussions with the social worker which followed the mother and step-father expressed distress and dissatisfaction at the claimant being accommodated full-time at The Croft and said that their concern was to obtain the right educational provision for the claimant.  Ultimately they agreed to The Croft as they believed it was the only way to get what they wanted, namely, a suitable residential school for the claimant.  At a planning meeting at The Croft in early September 2008, the mother and step-father confirmed their position and said

"that they wanted him to be part of the family and had been asking for a residential education provision but nothing had been offered and that was why they were in this position."

22. The claimant commenced living at The Croft on 3rd September 2008 and attended Farrow House School on 4th September. There is no need to go into detail, but suffice to say that the police were involved on several occasions.  At a "looked after child" review on 30 September, attended by the parents, one recommendation was that the claimant be returned to his mother and step-father.

23. Reports on the claimant were now multiplying as a result of the judicial review.  There is an undated care plan, created before 20 October 2008 and produced as a consequence of the order Wyn Williams J.  It stated that accommodation was being provided under section 20 of the Children Act 1989 and that no family members could provide the claimant with full time care.  The plan was still that he should stay at The Croft on a full time basis and attend Farrow House School.  If the placement broke down the Council would not return him home but would aim to find alternative accommodation. 

24. Dr Rasool's report, dated 9 October 2008, expressed concern that the claimant's position remained unchanged, fifteen months after his discharge from West End.  Under the heading "recommendations" she wrote:

"It is my opinion that given [the claimant's] complex needs and the degree of support and supervision that he is going to require, [the claimant] needs to be educated in a residential therapeutic special school.  The teaching staff teaching [the claimant] would have to be trained in the management and teaching of children on the Autistic spectrum and those who have other comorbid disorders like ADHD, which make their behaviour even more challenging.  At the same time he needs to be looked after at the same site by social care staff that have continuous links with staff who educate him and who also understand and are able to work with children on the autistic spectrum.  The need for a residential placement therefore is as much a social care need and responsibility as an educational one."

She suggested an initial 52 week a year placement.  A day school was not appropriate, because that would mean living at home, nor was a school like Farrow House, for those with emotional and behavioural difficulties, because of the type of children there and the behavioural management strategies used.  Without a residential placement to meet his social care and educational needs "this young boy is going to drift and this will to his detriment and to the detriment of society at large in the long run."  Dr Rasool wrote on the 4th November 2008 to the Council's special needs unit confirming what she said were her earlier views. 

25. Heloise Dove is an independent social worker and was commissioned by the claimant's solicitors.  Her report of 22 September 2008 recommended a 52 week a year residential placement, with a programme of home contacts.  Because like many other children with autistic spectrum disorders the claimant found transition difficult, there would be clear benefits for him of being in a consistent environment on a twenty-four hour basis, which would meet both his education and social care needs.  It should not be a resource which primarily focused on children with conduct disorders or emotional and behavioural difficulties, since these needs were different and could be modified through a different type of input. 

26. Another report was commissioned by the claimant's solicitors, from Lindsay Towns, a chartered child psychologist.  Dated 14th October 2008 it concluded that the claimant had complex and significant special educational needs.  A diagnosis of an autistic spectrum disorder, associated with severe ADHD, meant that his development had been affected in every way.  He had not had appropriate or consistent intervention, which had resulted in his behaviour becoming more and more out of control, since he had been able to set his own agenda.  The claimant was on the periphery of crime and delinquency, which could easily lead to drug and alcohol abuse.  He was a danger to himself and others, especially family members.  His mother and step-father had felt the strain of looking after him and trying to keep him safe.  Although he had been known to social services for many years, the support offered to the family appeared to have been "sporadic, uncoordinated, too little, too late, inappropriate and most importantly not assessed for its effectiveness".  The claimant needed a residential school, able to offer him 52 week residential provision, at least for the next few years. 

27. Finally, there is Catherine More's report.  She is an independent social worker, commissioned by the Council, whose core assessment of the claimant's needs is dated 3 December 2008.  She noted that the latest proposed Statement of Special Educational Needs recommended a 52 week residential placement catering for children with autistic spectrum disorders.  That she supported, although with continued contact with the family through the claimant returning to their care at weekends and during planned holidays.  She also thought that the family could benefit from support in parenting the claimant.  

28. All the time the judicial review proceedings were ongoing.  On 20th October 2008 a rolled-up hearing took place before Bennett J. The claimant sought leave to amend the grounds and to rely on the three expert reports.  The claimant's residence at The Croft was confirmed, as was his education at Farrow House. At a hearing before me on 19th November 2008 orders were made, including the continuation of The Croft and Farrow House. The matter was adjourned generally and to stand withdrawn if not restored within 35 days after service of the draft SEN statement, the Council's new Core Assessment and the Council's care plan.  

The new SEN statement
29. That very day, 19 November 2008, the draft Statement of SEN was sent, specifying specialist residential education. The parents were invited to comment. On 1st December they returned the SEN assessment form indicating a preference for Horton House School, stating in their own handwriting:

"When we visited the unit we clarified that the residential status can be as flexible as we wished, which is a vital criteria for us.  This provision caters for all [the claimant's] diagnosed needs.  Most importantly it is made up of very small units (Therapeutic Environment) and it has the important added advantage of being local.  When we visited the unit we clarified that the residential status can be as flexible as we wished which is a vital criteria for us."   

30. Horton House School is part of a group of community based special schools and children's homes providing specialist care and education for children and young people with special educational needs.  It is similar to New Options School.  The Final Statement of Special Educational Needs was dated 5th January 2009.  Reference was made to the reports, inter alia, of Dr Rasool, Heloise Dove and Lindsay Towns.  The statement provided for a 52 week residential placement.  Horton House School was the named as the appropriate school. 

31. A further "looked after child" care plan was dated 19 December 2008.  It contains the decision, the subject of this judicial review.  The care plan is set out in standard form.  Under the heading "the legal basis for current work with this child/young person", the form noted that the accommodation at The Croft was provided under section 20(4) of the Children Act 1989, as ordered by Wyn Williams J, and that the previous respite care was provided under the same section.  Then under the question "why does the child/young person need to be looked after now?" there is this passage:

"Horton House School has been identified by the parents and has been agreed by education and the [Department of Children, Schools and Families] as a suitable placement.  Upon commencement of that placement, which is envisaged to start in January 2009, [the claimant] will cease to be a looked after child under section 20(4) of the Children Act 1989 because the assessment is that his welfare needs will be met by the educational placement under the Education act 1996."

In a standard question on alternatives to accommodation, the answer given is that the local authority had not been able to identify any relations or close family to care for or offer accommodation to the claimant.  It had been assessed that he needed a 52 week residential placement.  The box "yes" was marked under the question whether, if additional resources were available, would accommodation be necessary.

32. The plan was then set out: the claimant would remain in respite accommodation, subject to parental wishes, for the Christmas period, until he commenced a specialist residential educational placement.  The explanation for the plan was that the claimant was in need under section 17 of the Children Act 1989 and required respite accommodation under section 20(4) of the Act, until he commenced a specialist residential educational placement in accordance with his revised statement of special educational needs.  The duration of the respite placement was in accordance with the order made by the Administrative Court on 19 November 2008.  The claimant would cease to be looked after under the Children Act 1989 upon his admission into a 52 week residential placement, where he would be accommodated under the Education Act 1996. 

33. In terms of the claimant's long term needs, which the placement would meet, the Horton House provision was spelt out under the heading "education".  Horton House was also identified in relation to the type of placement proposed.  As to the contingency plan if the placement broke down, the plan form said that further liaison would need to take place between the mother and the Education Department to identify an alternative 52 week placement.  Question 17 asked: "if the child/young person is accommodated, what has been agreed for ending this episode?"  The answer was that the claimant would cease to be looked after under section 20(4) of the Children Act 1989 once he started at Horton House School.  Finally, as regards steps if any party wished to alter the plan, the answer given in relation to Horton house was liaison with the Education Department. 

34. On 19th December 2008 the parents collected the claimant from The Croft for the Christmas holidays.  After the holidays they did not return him there or to Farrow House school.  He resided with them until 23rd February 2009, when he started at Horton House School as a residential pupil full-time, having been part time from 14th January. During January and February the parents said they were able to cope.  At Horton House the claimant has made good progress and his mother has told the court that the family is very happy indeed.  The school informs her of his programme and progress, and the family is very comfortable with the support he is receiving.  The claimant returned home to his family, at their request, every weekend and during school holidays.  The cost of the claimant's placement at Horton House is £150,000 per annum. 

35. On 15th January 2009 the original judicial review claim was restored.  On 25th February Lord Carlile of Berriew QC refused the application to restore. On 18th March the claimant lodged a permission to appeal. On 28th May 2009 Sir Richard Buxton refused permission to appeal. The claimant then amended his grounds of appeal and, at an oral hearing, Elias LJ granted permission to appeal to bring judicial review on the amended grounds.  In granting permission for judicial review Elias LJ identified the central issue for me as to whether the obligation to a "looked after" child under sections 22 and 23 of the Children Act 1989 can continue, notwithstanding the claimant's 52 week a year residential placement at Horton House School. 

Children Act 1989 duties/powers
(a) General duties

36. Part III of the Children Act 1989 contains a range of duties and powers for local authorities to enable them to support children and families.  It opens in section 17 with what the legal authorities have characterised as the framework duty.  That section falls within the heading "provision of services for children and their families".  Section 17(1) imposes a duty on every local authority

"(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."

There is no definition of the nature and scope of "welfare" under the Act.  A child is taken to be a "child in need" if

"(a) he 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 by a local authority under this Part;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled: s. 17(10).  "

"Family" in relation to such a child includes any person who has parental responsibility for the child and any other person with whom he has been living: s. 17(10).  Disablement includes suffering from mental disorder of any kind: s. 17(11).  "Development" means physical, intellectual, emotional, social or behavioural development; and "health" means physical or mental health: s. 17(11). 

37. The Framework for the Assessment of Children in Need and their Families, 2000, is the statutory guidance which accompanies the Act.  It explains that assessing whether a child is in need, and the nature of any needs, requires a systematic approach which uses the same conceptual map for gathering and analysing information about all children and their families, but discriminates effectively between different types and levels of need.  Assessment requires a thorough understanding of the developmental needs of children; the capacities of parents or caregivers to respond appropriately to those needs; and the impact of wider family and environmental factors on parenting capacity and children.  Those three dimensions are then sub-divided along a number of critical dimensions, twenty in all.  One of the seven dimensions to a child's development needs is education.

38. For the purpose principally of facilitating the discharge of this general duty, section 17(2) of the Children Act 1989 confers on local authorities the duties and powers set out in Part 1 of Schedule 2 to the Act.  Paragraph 3 of that Schedule reads as follows:

"Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under –

(a) the Chronically Sick and Disabled Persons Act 1970;
(b) Part IV of the Education Act 1996;
(c) the Disabled Persons (Services, Consultation and Representation) Act 1986; or
(d) any other enactment."

It is clear from section 17(6) that the services provided by a local authority in the exercise of functions conferred on it under section 17 may include accommodation, assistance in kind and, exceptionally, cash.  As a general or framework duty section 17(1) does not generate an obligation to meet the assessed needs of every child, regardless of resources: R (G) v Barnet LBC [2003] UKHL 57; [2004] 2 AC 208. 

39. There is another general duty of relevance to this claim, contained in section 85 of the Children Act 1989.  It applies where a child is provided with accommodation by a local education authority ("the accommodating authority") for a consecutive period of at least three months.  Section 85(1)-(2) obliges the accommodating authority to notify the local authority, both when they accommodate and when they cease to accommodate the child.  Section 85(4) then provides:

"85(4) Where a local authority have been notified under this section, they shall –

(a) take such steps as are reasonably practicable to enable them to determine whether the child's welfare is adequately safeguarded and promoted while he is accommodated by the accommodating authority; and

(b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child."

(b) Accommodation
40. There are then the duties and powers in Part III of the Children Act 1989 for the provision of accommodation to children.  Section 20 is the focus of this litigation.  First, in section 20(1), is the duty to accommodate.  As relevant to this case it reads as follows:

"20 (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 –

(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."

The concept of "being prevented … for whatever reason" from providing suitable accommodation in section 20(1)(c) is not defined but must be given a wide interpretation: R (G) v Barnet LBC [2003] UKHL 57; [2004] 2 AC 208, [100] per Lord Hope; see also [24] per Lord Nicholls; R (M) v Hammersmith and Fulham LBC [2008] UKHL 14; [2008] 1 WLR 535, [43].  In addition to the duty to provide accommodation in section 20(1), there is the power conferred on local authorities to provide accommodation in section 20(4).

"20 (4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare."

Thus even if a parent caring for a child were not prevented from providing suitable accommodation, so that there was no obligation under section 20(1), a local authority could do so in its discretion under section 20(4),  to safeguard or promote the child's welfare. 

41. The series of administrative judgments demanded of a local authority by section 20(1) is authoritatively laid down in  the judgment of Ward LJ in R (A) v Croydon LBC [2008] EWCA Civ 1445, [75], approved in R (G) v Southwark LBC  [2009] UKHL 26; [2009] 1 WLR 1299, [28]: (1) Is the applicant a child? (2) Is the applicant a child in need? (3) Is he within the local authority's area? (4) Does he appear to the local authority to require accommodation? (5) Is that need the result of: (a) there being no person who has parental responsibility for him; for example, (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented from providing him with suitable accommodation or care?  (6) What are the child's wishes and feelings regarding the provision of accommodation for him? (7) What consideration (having regard to his age and understanding) is duly to be given to those wishes and feelings? Does any person with parental responsibility, who is willing to provide accommodation for him, object to the local authority's intervention?  If there is objection, does the person in whose favour a residence order is in force agree to the child being looked after by the local authority? 

42. Unlike the general duty in section 17(1), once that series of judgments in section 20(1) has been made in favour of the child a duty is owed and accommodation must be provided: R (G) v Barnet LBC [2003] UKHL 57; [2004] 2 AC 208, [100].  There is a primacy of this specific, section 20(1) duty, over the general duty in section 17(1).  Moreover, there is a primacy of this specific, section 20(1), duty over the duty to house the homeless in the Housing Act 1996.  If every item in this list has been assessed in a child's favour, so that the duty has arisen, the local authority cannot sidestep its obligation by giving the accommodation a different label: R (M) v Hammersmith and Fulham LBC [2008] UKHL 14; [2008] 1 WLR 535, [42]; R (G) v Southwark LBC [2009] UKHL 26; [2009] 1 WLR 1299, [28]. 

43. When does the duty in section 20(1) come to an end?  The only authority is the obiter remark of Baroness Hale in R (G) v Southwark LBC [2009] UKHL 26; [2009] 1 WLR 1299, [32]:

"[32] … We have heard no submissions from the other parties on the circumstances in which, once triggered, the duty under section 20(1) might come to an end. Presumably, it will do so if the criteria are no longer met - if the child is no longer "in need", or his parents or carers are no longer prevented from providing him with suitable accommodation or care, or if a competent child no longer wishes to be accommodated under that section. But the whole purpose of the leaving care provisions was to ensure that older children who were without family support were given just the sort of help with moving into independent living that children normally expect from their families. Authorities should therefore be slow to conclude that a child was no longer "in need" because he did not need that help or because it could be provided in other ways."

44. When exercising any of these duties and powers contained in section 20 to provide accommodation, the local authority must take account of the child's wishes and feelings, and cannot provide accommodation for a child under sixteen if someone who has parental responsibility, and is willing and able to do so, objects: ss. 20(6),(7),(11).  In the case of a child under sixteen any person with parental responsibility may at any time remove him or her from the accommodation provided: s. 20(8). 

(c) Looked after children
45. The third part of Part III of the Children Act 1989 contains the duties of a local authority in relation to children looked after by them.  "Looked after" children are defined for the purposes of the Act in section 22(1) as those in care or those accommodated under social services functions.

"22 (1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is –

(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."

Children in care are those subject to a care order under section 31(1) of the Act: s. 105(1).  Accommodation means accommodation which is provided for a continuous period of more than 24 hours: s. 22(2).  Social services functions within the meaning of the Local Authority Social Services Act 1970 are those specified in Schedule 1 of that Act, as amended: s. 1A.  The only part of the Education Act 1996 specified in Schedule 1 is section  322, which imposes a duty on a local authority to assist a local education authority to help the latter, in certain circumstances, to perform its functions, if required to do so. 

46. Once a child is a looked after child – because he or she was in care or accommodated – various social welfare services accrue.  As Baroness Hale put it in R (M) v Hammersmith and Fulham LBC [2008] UKHL 4; [2008] 1 WLR 535, local authorities are expected to look after the child in all the ways a good parent would.  The general duty as regards looked after children is to safeguard and promote their welfare: s. 22(3)(a).  That duty includes, in particular, a duty to promote the child's educational welfare: s. 22(3A).  Inserted by the Children Act 2004, section 22(3A) was part of a wider purpose, to create a unified approach to children's services.  The Explanatory Memorandum set out the rationale for the new section 22(3A) as follows:

"226. A looked after child is defined in section 22 as a child in care (i.e. under a care order) or a child provided with accommodation by the local authority in exercise of its social service functions.  There is evidence that this group of children achieve significantly less well than their peers and that this under-performance is due at least in part to a lack of effective support from local authorities as "corporate parents" of these children.

227. The new duty will mean that local authorities will have to give particular attention to the educational implications of any decision about the welfare of any child they are looking after.  That might be for instance the need to organise a suitable school placement at the same time as arranging a new care placement."

47. There are also specific duties to accommodate and maintain looked after children set out in this part of Part III: s. 23 (to be replaced by ss. 22A-F by the Children and Young Persons Act 2008, which are not yet fully in force).  Accommodation under section 23 can be in a children's home or via other arrangements.  A residential school would be one such arrangement: ss. 23(2)(f).  The 2008 Act also inserted a duty on local authorities to ensure visits to, and contact with, looked after children, including those who have ceased to be looked after as a result of prescribed circumstances: s. 23 ZA(1)(b), (2). 

48. One aspect of being a looked after child is that regular looked after child (LAC) reviews must be held.  The statutory power is in section 26 of the Act; the details are laid down in the Review of Children's Cases Regulations 1991, 1991 SI No 895, as amended.  Regulation 2A of the latter sets out the requirements for the independent reviewing officer, who must attend reviews and, amongst other things, identify the persons responsible for implementing a decision taken in consequence of a review.   Regulation 3 governs the frequency of reviews.  A first review occurs within 4 weeks of the child being accommodated.  The second review must be no later than three months after that, and subsequent reviews are at least 6 monthly intervals until the child is 18 years old.  The reviews are holistic in character, concerned with all factors affecting a child's needs and progress: Schedules 2, 3. Education, and special educational needs, are aspects: Schedule 2, para 7.  The reviews are attended by all the relevant professionals.  The review must consult with any relevant professionals, the parents and the child.  The responsible authority must make arrangements themselves or with other persons to implement any decision which the local authority proposes to make in the course, or as a result, of a review. 

49. The implications of being a looked after child for older children are expertly set out by Baroness Hale in R (M) v Hammersmith and Fulham LBC, at [2]-[23]. 

"21 Particularly relevant in this case are the duties towards older children inserted by the Children (Leaving Care) Act 2000. The aim was to supply for those older children the same sort of continuing support and guidance which children can normally expect from their own families as they move from childhood to adulthood.

22 A child who is still being looked after by the local authority is 'eligible' for these extra services if she is aged sixteen or seventeen and has been looked after for a total of 13 weeks or more since the age of 14: see 1989 Act, Schedule 2, para 19B(2), and Children (Leaving Care) (England) Regulations 2001, SI 2001/2874, reg 3(1) (the Leaving Care Regulations). The basic requirement is to carry out an assessment of the young person's future needs, to prepare a detailed pathway plan for her, covering matters such as accommodation, education, financial support and preparation for independent living, and to arrange for her to have a personal adviser: see 1989 Act, Schedule 2, paras 19B(4) and 19C , Leaving Care Regulations, regs 7, 8, 12 and Schedule.

23 If an 'eligible child' ceases to be looked after by a local authority, but is still aged sixteen or seventeen, she becomes a 'relevant child': 1989 Act, section 23A(1) . The local authority must take reasonable steps to keep in touch with her, appoint a personal adviser, assess her needs and prepare a pathway plan if she does not already have these. There is also a specific duty to support her, unless they are satisfied that her welfare does not require it, by maintaining her, providing her with or maintaining her in suitable accommodation, and assisting her with education, training and employment: 1989 Act, section 23B and Leaving Care Regulations . Once a 'relevant child' reaches 18 (or a child ceases to be looked after at that age), the local authority still owe duties towards such a 'former relevant child', to advise and to provide various forms of assistance, especially with employment, education and training: 1989 Act, sections 23C, 24B."

(d) Impact of Children Act 2004
50. The Children Act 2004 integrated children's services under the one umbrella so that both the social care of children and their education are now under a single director of children's services.  The policy aim was to create a cohesive and integrated system.  Cooperation between the different arms of children's services is mandatory.  The amendment of the welfare duty to looked after children in section 22 of the Children Act 1989, to embrace the promotion of educational achievement in subsection 3A, is a statutory expression of the new approach. 

(e) The court's role.
51. R(M) v Lambeth LBC [2009] UKSC 8; [2009] 1 WLR 2557 concerned the duty in section 20(1) of the Children Act 1989.  In the course of the decision the Supreme Court approved a line of case law on the issue of the respective roles of public authorities and the courts when determining whether the conditions exist for the exercise of a statutory duty or power.  Baroness Hale referred to the judgment of Lord Scarman in R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309 at p.341:

"If a local education authority gets the law right, or, as the lawyers would put it, directs itself correctly in law, the question of fact – i.e. has the student established the prescribed residence? – is for the authority, not the court, to decide.  The merits of the application are for the D subject only to judicial review to ensure that the authority has proceeded according to the law". 

She also referred to the speech of Lord Brightman in R v Hillingdon London Borough Council, ex parte Pulhofer [1986] AC 484, a case concerning the Housing (Homeless Persons) Act 1977, where he held that "[w]hat is properly to be regarded as accommodation is a question of fact to be decided by the Defendant": at 517.  Finally, Baroness Hale referred to her own words in R (Wahid) v Tower Hamlets London Borough Council [2002] EWCA Civ 287; [2002] BLGR 545, 554 in relation to the duties to provide accommodation for vulnerable adults under the National Assistance Act 1948:

"[30] … [I]t is for the local social services authority to assess whether or not those conditions are fulfilled, and if so, how the need is to be met, subject to the scrutiny of the courts on the ordinary principles of judicial review".  

It was for the court to decide what the words meant and for the authority to decide whether the facts fitted those words.  Specifically, in relation to the Children Act 1989, Baroness Hale observed in R(M) v Lambeth LBC:

"[26] … The 1989 Act draws a clear and sensible distinction between different kinds of value judgments.  The question whether a child is 'in need' requires a number of different value judgments… … Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act.  Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make.  But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review.  Within the limits of fair process and 'Wednesbury reasonableness' there are no clear cut right or wrong answers."

Education Act 1996, special educational needs and residential schooling
52. Part IV of the Education Act 1996 provides for meeting special educational needs. In summary, when a request is made from a duly authorised person to assess whether or not a child has special educational needs it is the duty of the local authority to comply with the request and carry out an assessment. If that assessment results in a Statement of Special Educational Needs it is the duty of the local authority to arrange for the special educational provision set out in the Statement, unless the child's parents have made suitable arrangements, and also to arrange any non-educational provision specified in the Statement, as considered appropriate.

53. A child with 'special educational needs' is defined by section 312 of the Education Act 1996 as one who has "a learning difficulty which calls for special educational provision to be made for him."  In general a child has a "learning difficulty" for the purposes of this Act if, amongst other things, " he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority".  The process by which an assessment of a child's educational needs is undertaken is set out in section 323: where the local education authority are of the opinion that a child for whom they are responsible may have special educational needs, it is necessary for the authority to determine the special educational provision which any learning difficulty he may have demands.  The local education authority must serve a notice on the child's parents informing them that it proposes to make an assessment, of the procedure for this, of how further information may be obtained, and of the parent's right to make representations and to submit written evidence.   Where a local education authority decides to make an assessment under this section, it must give notice in writing to the child's parents of that decision and of its reasons for making it.

54. A Statement of Special Educational Needs is provided pursuant to section 324.  In particular, the statement must give details of the authority's assessment of the child's special educational needs, and specify the special educational provision to be made for the purpose of meeting those needs.  Under the Education (Special Educational Needs) England (Consolidation) Regulations 2001, 2001 SI No 3455, Part 2 of the Statement sets out the special educational needs "in terms of the child's learning difficulties which call for special educational provision".  In Part 3 the objectives which the special educational provision should aim to meet are specified.  The educational provision to meet the needs in Part 2, and the objectives in Part 3, are then, in their turn, to be specified.  Part 4 of the statement is concerned with placement in a school.  Part 5 specifies the non-educational needs of a child for which provision is thought appropriate if the child is to benefit properly from the arrangements for special educational provision. 

55. After outlining these provisions, Judge LJ (as he then was) said in W v Leeds City Council [2005] EWCA Civ 1988; [2005] ELR 617:

"[37] In my judgment, the principle to be derived from Ex parte E is not as wide as Mr Friel suggests.  Consistent with the relevant statutory provision, Part 3 of the Statement must make provision for the educational needs specified in Part 2: no more, no less.  Provision is not required to be made in Part 3 for matters of background and comment, nor even for needs which in the judgment of the Tribunal do not amount to educational needs.

[42] Mr Friel sought finally to develop a new argument … The effect of his submission would have been that the Tribunal would have had some level of jurisdiction over the provision made by the Social Services Department of the Council to ensure that constant supervision was provided for C.  This is a radical proposition, boldly advanced for the first time before this Court.  My preliminary consideration of the Act and the Regulations suggests that such a jurisdiction is extremely unlikely to have been vested in this specialist Tribunal with specific statutory responsibilities in the field of education ..."

Wall LJ emphasised the multiple needs of the child in that case, that his education needs could not be treated in isolation and that a holistic approach was needed: [50]. 

56. Where a local education authority maintains a statement under section 324, unless the child's parent has made suitable arrangements the authority

"(ii) shall arrange that the special educational provision specified in the statement is made for the child, and (ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate": s. 324(5)(a). 

Section 326(1) makes provision for an appeal to the tribunal.  The deadline for parents to issue a notice of appeal is 2 months from the date on which the local education authority gives notice of the right to appeal: Special Educational Needs Tribunal Regulations 2001, 2001 SI No 600, reg. 7(3).  Section 328 provides for reassessments of statements.   

57. As far as residential schooling is concerned, the educational provision as a result of Parts II and III of a statement of special educational needs could be a residential school, although there is no specific mention of it.  The Special Educational Needs Code of Practice (DfES/581/2001) recognises at para. 8.74 that Education Authorities are likely to consider a residential provision appropriate "where the child has severe or multiple special educational needs that require a consistent programme during and after school hours that cannot be provided by parents with support from other agencies". 

58. The claimant's case has been transformed over the last sixteen months since this judicial review began.  The grounds have been amended and re-amended.  The original grounds of the claim of August 2008 are not before me.  The amended grounds were before Bennett J at the permission hearing on 20 October 2009, as were the reports of Dr Rasool, Heloise Dove and Lindsay Towns.  Bennett J commented that although the Council had not had time to digest the reports, they would be extremely influential on what the claimant's future care plan would contain.  Bennett J gave directions for the hearing and permitted re-amendment of the grounds.  The upshot of all this is effectively a new judicial review.  The decision under challenge before me is now that of December 2008.  As the re-amended claim form puts it this is "the decision to cease to continue to look after [the claimant] under ss. 22 and 23 of the Children Act 1989 and refuse to treat the full-time residential placement at Horton Education and Care as a s. 20 accommodation."

59. Before me Mr Bowen QC advanced the claimant's case under two broad heads.  The first was that the claimant still fell within the terms of section 20(1)(c) of the Children Act 1989, as a child in need requiring and being provided with accommodation, and thus was a looked after child within the terms of sections 22 and 23 of that Act.  Secondly, Mr Bowen QC contended that if the claimant did not fall within section 20(1)(c), the Council's decision of December 2008 to treat the claimant's looked after status as at an end was flawed in public law terms.  These broad heads subsumed other contentions such as the narrowness of special needs provision under the Education Act 1996; that it is unlawful for a local authority to side-step its duties under the Children Act 1989, by invoking duties under other legislation like the Education Act 1989, since the former have primacy: that care and education functions are integrated and must be treated as such; and that anomalies would result if the Council's submissions were correct, given the significance of having looked after status under the Children Act 1989.    

60. Before addressing directly Mr Bowen QC's submissions it is important in my judgment to have regard to the evidence of what the claimant, his mother and step-father want.  At the end of the day their wishes are paramount, not how lawyers and judges might want to characterise them.   To my mind there are striking features of this evidence.  The first is that the claimant's mother and stepfather were clear, at least from the second part of 2007, that what they wanted for him was a special residential school such as New Options.  It was not until his assessment at the West End Unit in 2007 that the autism was diagnosed, although the ADHD was identified in 2001.  Until 2007 his consultant, Dr Astill, had opined that the behavioural problems were attributable to environmental factors.  During their attendance at the looked after child reviews in 2007 and 2008 the mother and step-father underlined their desire for a specialist residential school such as New Options. When the court ordered the claimant to live at a children's home, The Croft, and attend Farrow House School, the mother became very depressed and had to see a doctor.  That arrangement broke down, in time.  The mother and step-father then kept the claimant at home and refused to send him to Farrow House School.  They wanted New Options or something like it.   

61. The claimant's mother and step-father did not appeal the first Final Assessment of Educational Needs of 2007, which named Farrow House School.  As the step-father has explained they made a mistake in not doing so.    Moreover, there did not seem support from any expert in favour of a specialist residential school like New Options School.  Dr Rasool, the consultant at West End, was a key player.  She had the longest involvement with the claimant of all professionals, from February 2007 until January 2009.  Although it was reported in June 2007 that she would recommend residential education at a specialist facility her report did not say that.  It was only when she reported again, 15 months later, that she explicitly recommended a specialist residential school.  By then the claimant's experts, Heloise Dove and Lindsay Towns had recommended a specialist, residential school, on 22 September 2008 and 14 October 2008 respectively.  The Council's own expert, Catherine More supported that approach on educational, psychological and social grounds on 8 December 2008. 

62. So when the four experts reported between October and December 2008, they all agreed that what was required for the claimant was a specialist residential school.  As I understand it, this recommendation is because autistic children have a life long disability for which there is no cure, so the provision to help them lies in schools with a specialism in autism, where there is an overlap of both educational provision and social and developmental skills.  Specialist residential schools like New Options and Horton House provide this.  Be that as it may, the fact is that the experts agreed with what the family wanted for the claimant. 

63. A final aspect of the evidence is the fact that the claimant is currently at the type of residential school, Horton House School, which the experts have recommended and his mother and step-father want.  The claimant's mother is very pleased with the school.  It provides for all his needs.  There is no longer any need for respite care.  Horton House is available to the claimant 52 weeks a year if he and the family want.  In fact, they prefer to have him return to them at weekends and during holidays.  Whatever the outcome of this judicial review the provision of residential education at Horton House School will continue, as will the claimant's returning home at weekends and in school holidays, as his parents wish. If needs be Horton House School is available for up to 52 weeks in each year.  Where a school is named in Part IV of a Statement of Educational Needs it ceases at age 19.  Mr Bellamy QC for the Council assured me in oral submissions that Horton House School is potentially available until the claimant is 20 years old. 
Issue 1: Does the claimant still fall within section 20(1)(c) or section 20(4)?

(a) The claimant's case
64. The first step in Mr Bowen QC's argument under this head was that the claimant still falls within section 20 of the Children Act 1989 as a child in need requiring accommodation.  The claimant could not be cared for by his family full-time.  That had led the Council to provide accommodation from February 2007 and to the claimant being a "looked after child" within the meaning of s. 22(1).  (In Mr Bowen QC's submission the accommodation was provided under section 20(1)(c).  However, he also submitted, and I accept, that it is irrelevant for these purposes whether that accommodation was provided under section 20(1)(c) or section 20(4)).  As such, the Council owed the claimant duties under sections 22 and 23 to provide suitable support and accommodation to him as a "looked after child".  These duties included providing suitable support to safeguard his educational achievements (s. 22(3A)) and emotional and social welfare (s. 22(3(a) and s. 23(1)), and to provide him with accommodation suitable to meet his disability needs (s. 23(2) and s. 23(8)). 

65. As of January 2009, Mr Bowen QC submitted, nothing had changed in the factual circumstances of the claimant's needs which gave rise to section 20 accommodation in February 2007. The claimant remained a child in need within the meaning of section 17 of the Children Act 1989.  It was common ground that he could not return home to his parents' care in view of their inability to keep him safe or offer him suitable care and accommodation for his needs.   The criteria under which the section 20 duty had originally arisen remained.  What had happened was that the Council was now in agreement that the claimant required a full-time specialist residential placement capable of meeting his psychological, social care and educational needs.  In December 2009, the Council finally conceded in its core assessment that the claimant's complex needs were such that he required something more than weekend respite, and something better than The Croft, a children's home, both of which had been provided under section 20. The care plan dated 19th December 2008 stated that even if additional services were not provided to the claimant, accommodation would be necessary, and if the Horton House placement broke down an alternative full-time placement would be required. 

66. In Mr Bowen QC's submission this was an unquestionable acceptance of the recommendations made by the claimant's three experts, and in particular, of those of Dr. Rasool. The Council's concession, in Mr Bowen QC's submission, evidenced that the criteria for accommodation under section 20 remained live and met.  The only fact which had changed as of January 2009 was the type of accommodation that was being provided to the claimant under section 23 of the Children Act 1989. Whereas previously the claimant had been provided with respite care, between February 2007 and August 2008, and a place at a children's home, The Croft, between August 2008 and December 2008, in January 2009 he was finally provided with a full-time residential placement at Horton House, capable of meeting his needs.  

67. A mere change in the type of accommodation arranged under section 23 could not itself justify, in Mr Bowen QC's submission, a change in status as a looked after child simply because Horton House, the residential school, is capable of being provided under a different legislative enactment, i.e. section 324 of the Education Act 1996.  Although the claimant's parents had insisted on a residential school this was not simply an educational matter.  The Council could not side-step its duties under section 22 and 23 of the Children Act 1989 and effectively substitute those duties with weaker responsibilities under section 324 of the Education Act 1996.  R (G) v Southwark LBC [2009] UKHL 1; [2009] 1 WLR 1299 and R (M) v Hammersmith and Fulham LBC [2008] UKHL 4; [2008] 1 WLR 535 established the primacy of the accommodation duty under Children Act 1989 over other legislation relating to children requiring accommodation. That same legal point, Mr Bowen QC contended, should be imported analogously to the present case.  The Council could not lawfully side-step its clear and non-derogable duties under the Children Act 1989, when its criteria were still met, by 'choosing' to accommodate the claimant under the Education Act 1996.

68. The importance of being a looked after child under the Children Act 1989 was not simply an academic exercise, given the duties owed to such children.  At the present the placement at Horton House in Part IV of the Final Statement of Special Education Needs was driven only by the claimant's special education needs, not the wider care aspects.  The evidence supported the contention that the claimant would require intensive support in the longer term and for his transition into early adulthood. This was fundamentally why he needed to access a holistic care package under the Children Act 1989 capable of meeting all of his needs. 

69. Finally, Mr Bowen QC invoked the integration of social care and educational services as a result of the Children Act 2004, in particular under section 11 of that legislation.  By adopting an integrated approach to children's services, that legislation demonstrated that it would be a breach of the duty to safeguard this claimant's welfare if his case were to be treated as simply one of addressing his special educational needs.  The need for an integrated approach to his welfare was underlined by section 22(3A) of the Children Act 1989, which makes promoting a child's educational advancement one aspect of safeguarding the welfare of a looked after child. 

(b) Discussion and analysis
70. There is no doubt that the claimant was a looked after child under section 22(1)(b) of the Children Act 1989, as a result of the accommodation provided for his respite care and subsequently when he was at The Croft, a residential home.   The claimant's diagnoses, autism and ADHD also brought him within section 312(2)(b) of the Education Act 1996, that is, his disabilities prevented him from making use of educational facilities provided in his area for children who do not have special educational needs.  The claimant still falls within the education Act 1996 and has a Statement of Special Educational Needs, enabling him to attend Horton House full-time.  In my judgment, because the claimant is at Horton House, and no longer wants or receives respite accommodation, he is no longer a looked after child.  That follows directly from the statutory definition of a looked after child in section 22 (1)(b) of the Children Act 1989, a child provided with accommodation by a local authority in the exercise of its social services functions.  Social services functions, as outlined earlier, do not cover accommodation provided as a result of a Statement of Special Educational Needs under the Education Act 1996.  This is not, as Mr Bowen QC contends, a question of labelling but a direct result of the definition of looked after child in the Children Act 1989.

71. In my view this is not a matter, as Mr Bowen QC also contends, of the Council side-stepping its legal duties.  It follows from how Parliament has couched the legislation.  The claimant has a Statement of Special Educational Needs, naming a school which the family wants.  It happens to be a residential school.  The Council, in accordance with their legal obligations under the Education Act 1996, have provided it.  There is no question of altering the provision unless there is a re-assessment pursuant to the section 328 Education Act 1996 or an appeal to the Tribunal.  Section 22(3A) of the Children Act 1989 imposes a duty to "safeguard and promote" a child's education.  It might in certain cases run alongside but it is no substitute for, nor is it paramount over, the detailed provisions of the Education Act 1996.  That is on the statute book specifically for special needs children.  For the Council not to have acted under the Education Act 1996 to offer the claimant Horton House might well be regarded as having "sidestepped" the specific duties which Parliament has imposed on it. 

72. In relation to the side-stepping issue, Mr Bowen QC referred to the body of case law which makes it clear that a local authority which owes a duty to a child pursuant to section 20 of the Children Act 1989 cannot sidestep that duty by purporting to act under a different statutory regime.  The case law relates either to purporting to accommodate a child under section 17 of the Children Act 1989 (e.g., R(G) v London Borough of Southwark [2009] UKHL 26; [2009] 1 WLR 1299), or by employing the Housing Act 1996 (e.g. M v Hammersmith and Fulham LBC [2008] UKHL 14 [2008] 1 WLR 535), as an alternative means of providing accommodation.   A distinguishing feature of these cases is that the children required accommodation because they had nowhere else to live. In this case the claimant did not require accommodation in this sense, other than respite care for his parents. His parents several times confirmed that they were happy with the respite care provided and that the issue earlier between them and the Council was whether he should attend a residential school.   A further difference is that this case involves the Education Act 1996, as opposed to the Housing Act 1996 or to accommodation purportedly provided under section 17(6) Children Act.   The Housing Act 1996 does not apply to 16 or 17 year old children to whom a duty is owed under section 20: Homeless (Priority Need for Accommodation)(England) Order 2002,  SI 2002 No. 2051, para 3.   

73. Moreover, in terms of the realities it does not make sense to me to describe what the Council has done as side-stepping their duties.  It is significant, as I have said, that the residential school placement was what was sought by the claimant's mother and step-father from the second part of 2007.  To suggest that the provision of Horton House is an attempt by the Council to sidestep its obligations is quite contradictory.  It is exactly what the family wanted, and the evidence before me is that they are pleased with it and that it meets the claimant's needs.

74. In my view, the conclusion I have reached is reinforced by section 85 of the Children Act 1989.  Because the claimant is accommodated by the local education authority, section 85 places a duty on the Council to keep under review the question of whether it needs to exercise any of its functions under the Act with respect to the claimant.  The existence of this provision demonstrates, in my view, that Parliament cannot have envisaged that children who are in a residential school would automatically be regarded as "looked after" pursuant to sections 20 and 22(1)(b) of the Act.  Had that been the case, there would have been no need for a section requiring the local authority to consider whether it needs to exercise any of its social services functions. 

75. As part of his argument Mr Bowen QC highlighted the advantages of being a looked after child.  He came close to conceding, however, that this was a circular argument, relying as it does on the consequences of being a look after child as justification for being a looked after child.  The test is not whether the claimant needs to be "looked after", but whether he receives accommodation provided by the Council in the exercise of a social service function.  As I have explained, that does not apply in the claimant's case. In any event, no additional services or provisions have been identified as being needed for the claimant which are not already being provided at Horton House.  At the present a looked after status would add nothing to his situation.  He is being provided the holistic care Wall LJ referred to in W v Leeds City Council [2005] EWCA Civ 1988; [2005] ELR 617, [50].  He can remain at Horton House, if appropriate, until he is 20 years old.  If he were to leave, his family would be there.  The Council would need to exercise its powers under the Children Act 1989.  The claimant remains a child in need under section 17 and the Council has a continuing duty to him.  The Council could not suddenly abandon the claimant were he to leave Horton House. 

76. As to Mr Bowen QC's final point, there is the duty under section 11 of the Children Act 2004 for different agencies to cooperate in the provision to children of social and educational services.  No doubt this is an important obligation, to safeguard and promote the welfare of children, but I cannot see its relevance here: the duty applies no differently in relation to children who are looked after and those who are not.  Nor can I see how section 18 of the 2004 Act, which merged the social care and education functions for children under one umbrella organisation called children's services, has any purchase in this case.  Further, section 22 (3A) cannot affect the interpretation of the definition of looked after children in section 22(1). 

Issue 2: Termination of "looked after" status
77. The second limb to Mr Bowen QC's submissions is that if he is wrong on the first, the Council acted unlawfully in terminating the claimant's looked after status.  The fact is that the statutory assessment of his special educational needs reached the same conclusion as his care assessment, that he required a specialist, residential placement.  That confirmed the contention that a residential environment was necessary for the claimant's needs.  In cases such as that of the claimant it is not unusual for a specialist assessment of a child's educational needs to be parallel to an assessment of his welfare needs:  Framework for the Assessment of Children in Need and their Families, paras. 1.50, 3.39 and 5.52-5.58.  It is also not uncommon for a child with the claimant's needs to have a Statement of Special Educational Needs as well as a care plan.  One should not trump or terminate the other. 

78. Given the background – the looked after child reviews, the report of Dr Rasool and so on – that the claimant needed accommodation, the Council could not terminate its obligation to him as a looked after child.  Provision of accommodation through The Croft had been defective performance because it was not appropriate to the claimant's needs.  It could not be easily said that Horton House was provided under the Education Act 1996 when that legislation does not import a duty to accommodate.  Its focus is on educational needs, not more widely on all a child's needs.  By contrast, the duties under the Children Act 1989 exist to ensure that a vulnerable child with complex needs can be met holistically, under one umbrella of services.  These duties are of such importance that duty cannot readily be terminated. 

79. In the same way that care should be taken before placing a child in section 20 accommodation, care should be taken before bringing it to an end other than for the "natural" reason, that the child can return home safely.  Parliament's intention with section 22(3A) cannot be clearer, that the educational aspects of a child with looked after care status is subsumed within the overall welfare duty under sections 22 and 23.  Thus changes in educational support for a looked after child must be seen as carried out within the framework of those sections and cannot stand alone to justify bringing a child's looked after status to an end, particularly where the circumstances leading to the child acquiring it in the first place remains unchanged. 

80. While not unhappy with Horton House School, Mr Bowen QC made the short point that the Special Educational Needs statement did not make a 52 week placement there the inevitable outcome of its reasoning.  Nor was it clear that the claimant's social needs were an equally strong, if not stronger, driver for residential schooling by comparison with the educational need.  This again mitigated against termination of the Children Act 1989 duties. 

81. To my mind the starting point to reviewing the Council's decision to cease to treat the claimant as a looked after child turns on an application of Baroness Hale's obiter remarks in R(G) v Southwark LBC [2009] UKHL 26; [2009] 1 WLR 1299.  In paragraph 32 of her judgment she envisages three situations where this might happen: (i) where a child's parents are no longer prevented from caring for him; (ii) where a 16 or 17 year old child no longer wishes to be accommodated; or (iii) where a child ceases to meet the criteria.  Baroness Hale warned that a local authority should be slow to conclude that a child was no longer in need just because he or she did not need help or because the help could be provided in other ways. 

82. R(G) v Southwark LBC makes clear that the correct approach in deciding whether a child is "looked after" is to apply the criteria set out in the wording of the statute and analysed by Ward LJ in R(A) v Croydon London Borough Council [2008] EWCA Civ 1445, [75].  In my judgment there is no basis for the suggestion that the criteria for a child ceasing to be looked after are in any way different from the criteria which apply to a child becoming looked after.  Building on Baroness Hale's judgment, however, the issue of termination must be approached, in my judgment, with anxious scrutiny.  Because a child has been accommodated pursuant to section 20 does not mean any different test should apply to the question of whether he or she is to be accommodated under section 20 in the future.  Essentially the issue as to whether a child is still a looked after child is whether he or she is either accommodated pursuant to section 20 of the Children Act 1989 or is subject to a care order under section 31.  The duty to take account of educational needs, section 22(3A), has no bearing on this.   

83. In January 2009 the Council reached its decision on the claimant's educational needs.  It was then duty bound to consider compliance with its other duties, under the Children Act 1989 and otherwise.   What had happened previously was that the Council provided respite accommodation.  It was never the case that the claimant required accommodation full time, or that his mother and step-father could not ever provide it for him.  It was known that they experienced difficulties in caring for him and wished to devote attention to their other children,  whom they feared would be neglected.  They needed a break from the claimant's care to enable them to cope better.  If they took that break with the claimant still in their care, then his welfare might suffer, although this was never their intention.  Thus the Council decided they must provide respite accommodation from time to time to prevent this possibility.  But they remained of the view that the family had the capacity to meet the claimant's physical and emotional needs.  What they could not provide for was the care and education needed arising out of his autism, which requires specialist residential education. 

84. By the time the decision was made that the claimant's placement at Horton House was to be under the Education Act 1996, he had been in his family's care full time and not even attending school for the majority of this time, during which they had continued to care for and accommodate him. There was no reason to assume that this parental ability would diminish when the claimant was in a residential school for up to 52 weeks a year.  Once the Council provided Horton House, through the Statement on Special Educational Needs, it also decided that the claimant no longer needed the respite accommodation.    All his accommodation needs, for 52 weeks a year, would be met by Horton House School.  In the circumstances the Council approached the matter with anxious scrutiny.  I cannot conclude that the Council erred in law in ceasing to regard the claimant as requiring accommodation pursuant to section 20 of the Children Act 1989, once he was to attend Horton House and no longer needed respite care.   

85. The claimant in this case ceased to be a looked after child under the Children Act 1989 by virtue of the way the statute is drafted.  The Council is providing him accommodation at the residential school, Horton House, not under its social services functions but by virtue of a Statement of Special Educational Needs under the Education Act 1996.  The question of whether a child is a looked after child is judged against the statutory criteria of being provided accommodation pursuant to social services functions.  It is not the same as to whether social services duties are owed to him.  The Statement of Special Educational Needs was the product of a statutory reassessment under the Education Act 1996.  In complying with it the Council was not side-stepping its duty but acting in accordance with it.  It was a binding duty on the Council, as a result of the statement, to arrange for the claimant to be placed at Horton House. 

86. It may be that those advancing the claimant's case have identified a lacuna in the interface between the Children Act 1989 and the Education Act 1996.  At least in the case of this claimant the more general, adverse consequences which they have hypothesised have not occurred.  At Horton House all the claimant's needs are met.  In accordance with the wishes of his mother and step-father he can return to their care at weekends and during holidays.  This is all they wanted for the claimant, and continue to want.  It is agreed by all that the claimant has made tremendous progress while at Horton House in all aspects of his life and behaviour.  It is possible that he will remain there until he is 20 years old.  Since Horton House is available 52 weeks a year the Council decided that there was no need for respite care.  It approached the matter with anxious scrutiny and the decision to cease providing it is not reviewable on public law grounds.  I dismiss this application for judicial review.