O (A Child) by her Litigation Friend v Doncaster Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Judge Heaton |
| Judgment Date | 09 July 2014 |
| Neutral Citation | [2014] EWHC 2309 (Admin) |
| Docket Number | Case No: CO/9096/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 July 2014 |
2014 EWHC 2309 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Clive Heaton QC
Sitting as a Judge of the High Court in Leeds
Case No: CO/9096/2013
The Claimant was unrepresented
Joseph O'Brien (instructed by The Borough Solicitor) for the Defendant
Hearing date: 1 st July 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Judge Heaton QC:
This is a substantive hearing in a claim for Judicial Review. The Claimant is C, a young woman who will be 17 years old later this month. She has been represented by her litigation friend and carer TD but has been otherwise unrepresented before me. The respondent to the application is Doncaster Metropolitan Borough Council, represented before me by Mr O'Brien.
The claim that is brought on behalf of C is for a Declaration that from the time she went to live with TD in 2008 C was a Looked After Child. C seeks damages in respect of unpaid financial allowances as a consequence of that declaration if made, and also the provision of services for C. The Defendant resists the claim. Its case is that C came to live with TD in 2008 as a consequence of a private family arrangement. It says that in consequence C was not a Looked after Child, and that it has met its other duties to her.
The background
Sadly C had a very poor start in life. Her mother was a substance misuser. In consequence C's care by her mother was inconsistent and often neglectful. She lived in a chaotic home environment. Her needs were not met.
In February 200C's mother agreed with the Defendant's social care department that the situation could not continue. There was an agreement that C would go to live with a maternal Aunt and uncle AB and CD.C did go to live there and seemed to settle reasonably well. On the 19 th June 2006 AB and CD obtained a Residence Order in respect of C. AB and CD had been receiving financial support from the Defendant to his point, and following the making of the Residence Order that support was converted into a Residence Allowance. On the 27 th June 2006 social care closed its file in respect of C. There matters lay so far as is relevant for this claim until the beginning of 2008.
It is not in issue in this case that following the making of the Residence Order in June 2006 C would not have been a Looked after Child, and so June 2006 provides a convenient starting point for my consideration of the issues here.
TD tells me that on 7 th January 2008 AB called social care and informed them that she and CD were in difficulty in sustaining C's placement with them. TD tells me that her understanding of the situation was that C was effectively being evicted by AB and had nowhere to go. As she put it "her bags were packed". TD says that the situation was not that she put herself forward as a carer for C, but that she said to AB that she did not wish to be forgotten when social care were considering where C might be placed following her departure from the home of AB.
TD says that there was no agreement between AB and herself that C should come and live with her. Indeed TD tells me that AB was saying that it was not up to her to sort something out but that it was up to social care. AB was reluctant to let C go to live with TD (on TD's account) as AB was concerned of the effect of that upon the other child of the family TD was caring for.
On the 10 th January 2008 a social worker went to see AB at her home. The record says that AB and CD can no longer care for C. AB says to the social worker as it is recorded that there is a paternal aunt who has come forward as a carer for C, and that C has regular contact with her. This is of course TD. It is recorded that TD is already looking after C's niece. It is to be noted that what AB appears to have told social care goes further than TD tells me she had intended to go when she had spoken to AB earlier.
It is clear that the social worker understood that TD had it in mind that she might take C on long term as there is an early record of a conversation with her legal team where the possibility of a Residence Order to TD is being discussed.
The next record of interaction between social care and the family is the following day. The social worker firstly speaks to TD on the telephone on the 11 th January. The issue of whether this is to be permanent arrangement is discussed and TD says that she is hoping that AB will decide to have C back after a while, but that TD is prepared to have C on a long term basis if necessary.
Following that call the social worker made a home visit to AB on the 14 th January 2008. AB told the social worker that C knew that she was to move to the home of TD and was happy about the plan. There is a note that the social worker raised with AB the issue of finance. It is recorded that the social worker told AB that TD had said that she expected to receive a Residence Allowance for C. AB told the social worker that she got a Residence Allowance for C. The social worker said that she had not been aware of that and would need to look into it.
The social worker then went on to see TD at home that day. There is again a record of that meeting. It is recorded that TD explained that she was in receipt of a Residence Allowance for the other child of the family living with her and she would expect the same for C. The note says that the social worker said she was not aware of this.
TD's account of these events is not dissimilar from the notes but differs in emphasis. She tells me that she was saying to social care that she could not take C without a financial allowance as she could not afford to do so. Commonly family members in this situation are naïve as to the workings of social care but TD tells me she was not. She had been a foster parent in the past and had been around this particular block once before in respect of the child of the family now living with her. So she knew what to ask she says. TD tells me that now she does not recall whether it was put to the social worker as to a Fostering Allowance or a Residence Allowance.
On the 16 th January 2008 the social worker spoke to her legal section and the relevant team manager. The manager proposed that C move to live with TD as a means of respite in the first instance to see whether the arrangement was to be permanent. The team would need to go through "fostering procedures" before any payments could be made to TD. The manager suggested that the Residence Allowance paid to AB continue (presumably on the basis that this was a respite arrangement on this plan) and that AB then hand the allowance over to TD to cover the period until assessments had been done.
That day social care wrote to TD. That letter is of some significance. It says in its material parts:
(i) "…following your offer to provide care for [C] I would like to confirm the following"
(ii) "You have put yourselves forward as long term or permanent carers for C"
(iii) "You have requested financial support from [social care]"
(iv) "[social care is] unable to offer financial support to you at this time and further assessments are needed to indentify whether or not this is an option"
(v) "As an interim measure it is proposed that C comes to you for respite care and [AB and CD] will continue to claim all monies in respect of [C] and pass this on to you whilst the period of respite care is ongoing"
(vi) "[Social care] will commence the appropriate assessment in respect or your request to become the permanent carer for [C], this assessment to take account of your request for financial support"
TD told me that she thought that the assessments which were to be undertaken were in respect of fostering, but cannot now recall what she was told which caused her to come to that view. In any event no assessment of any sort was undertaken in the subsequent months.
As things worked out, TD tells me, the plan for the transfer of funds from AB to herself did not work out either. On the first occasion that AB went to get the money from the bank she found that social care had stopped the Residence Allowance to her. That situation is reflected in a note of the 15 th February 2008. That records that TD was on the telephone to a new social worker, the case having been transferred. It is said here that TD is telling the new social worker that AB's Residence Allowance for C has been stopped.
It is to be noted that the social worker records that she told TD that she did not qualify for "this allowance". That accords with what TD told me during the course of the hearing, that social care were saying to her at this time that she did not qualify as this was a private arrangement (although she was not sure whether it was said that this was a family fostering arrangement or a private fostering arrangement).
C went to live with TD and her husband on the 1 st February 2008.
On the 20 th February 2008 there is a further telephone conversation between the social worker and TD. It is clear that TD has a range of concerns about her position in respect of C. Finance is described as "a major issue", which again entirely consistent with TD's account of events at this time.
On the 26 th March 2008 there is a record of the social worker visiting TD to complete "Reg 38" forms. Doing the best he could Mr O'Brien told me that these may...
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