National Union of Rail, Maritime and Transport Workers v Serco Ltd (trading as Serco Docklands)

JurisdictionEngland & Wales
JudgeLord Justice Rix,Lady Justice Smith,Lord Justice Richards,Lord Justice Elias,Lord Justice Etherton,Lord Justice Mummery
Judgment Date04 March 2011
Neutral Citation[2011] EWCA Civ 226,[2011] EWCA Civ 196
Docket NumberCase Nos: A2/2011/0180(A) and A2/2011/0083,Case No: C1/2010/0791
CourtCourt of Appeal (Civil Division)
Date04 March 2011

[2011] EWCA Civ 196

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Cranston

Before : Lord Justice Rix

Lady Justice Smith

and

Lord Justice Richards

Case No: C1/2010/0791

CO/7590/2008

Between
The Queen on the Applicatin of R.o.
(By His Litigation Friend and Step Father Andrew Burton)
Appellant
and
East Riding of Yorkshire Council
Respondent
and
Secretary of State for Education Respondent
Intervener

Mr Nicholas Bowen QC and Ms Shu Shin Luh (instructed by Children's Legal Centre) for the Appellant

Mr Stephen Bellamy QC and Ms Sally Gore (instructed by Legal and Democratic Services) for the Respondent

Mr Clive Sheldon (instructed by Department for Education) for the Intervener

Hearing dates : Monday 15 th & Tuesday 16 th November 2010

and supplemental written submissions dated 23 rd November and 6 th December 2010

Lord Justice Rix

Lord Justice Rix :

Introduction

1

This appeal is about what is to happen to a teenage boy, just under 13 at the time when these proceedings started, now 15, the son of committed, capable and loving parents, who as a result of the effects on him of his severe autism (coupled with severe attention deficit hyperactivity disorder, ADHD, for which he has long been on medication), is now being schooled, I am glad to say at last happily and successfully schooled, under a special educational needs (SEN) placement, at a specialist residential school, Horton House in East Yorkshire: that is to say, this litigation is about what is to happen to him when, at the age of 18 or 19 or thereabouts, if not before, he emerges from Horton House into the wider world.

2

This question arises because, if the boy, RO, here (by his litigation friend, his stepfather) the appellant, either because of past accommodation provided to him by his local authority as a matter of respite care for the sake of his parents, and/or because of his present placement and thus his accommodation at the school, falls currently within the regime of having the status of a "looked after child" (LAC) within the Children Act 1989, as well as within the SEN regime of the Education Act 1996, then he will be entitled to receive the benefits of that LAC status from his local authority, here the respondent East Riding of Yorkshire County Council (the "council") even after he becomes an adult, and even after he leaves his school, until he is at least 21. If, however, he currently lacks LAC status, then once he leaves school and/or becomes an adult, the benefits of that previous but expired status may not be available to him.

3

His parents, out of concern for his welfare, have sought to do the best for him. When they began these proceedings, their primary objective, naturally enough, was to achieve RO's placement at Horton House or some similar specialist residential school. In the course of these proceedings they have achieved that objective, they would say as a result of the additional pressure of this litigation, the council would say as a result of a fresh SEN statement. I am not sure that that dispute, like much that is disputed between the parties, any longer matters very much. Now, however, that their primary objective has been achieved, their aim has been modified to look to RO's future, rather than or as well as his current, welfare. It may be that they were always concerned for the medium term future as well as the instant question of RO's placement, and it was just that the immediacy of the latter issue obscured the enduring question of the former. Again, I do not think that that matters very much. The question of RO's proper status under the legislation is of more importance than any temporary position taken up in pleadings or submissions in what has always been a fluid situation. It could be said that these proceedings have suffered from a superfluity of pleadings and submissions, which have sometimes served to obscure rather than elucidate the issues – although I recognise that everyone involved has been concerned to find the right answer, sooner or later. At the end of the day, I do not think that either party has suffered any unfairness through failing to appreciate what the other party's case has been.

4

While ultimately this appeal will be decided upon the facts of this particular case, it raises an interesting and important question about the relationship of the Children Act and the Education Act. It also raises issues about a local authority's obligations and powers under section 20 of the Children Act to accommodate children, which have given rise to much litigation in recent years. Moreover, a recent and critical authority in this area, although concerned with the relationship of the Children Act with a different statute, the Housing Act 1996, R (G) v. London Borough of Southwark [2009] UKHL 26, [2009] 1 WLR 1299, was making its way through the courts, ultimately to the House of Lords, just as these proceedings were on foot.

5

The judge, Cranston J, held that RO's LAC status under the Children Act came to an end when he went to Horton House and that 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" ( [2010] EWHC 489 (Admin) at [86]). The ultimate question on this appeal by RO is whether that is right, or whether his LAC status continues.

The critical facts

6

The narrative of the engagement of RO's family with the council is so rich and productive of dispute that I believe that it is important to concentrate, at the beginning of this judgment rather than too far into its midst, on what I have come to regard as the critical or core facts.

7

RO was born on 28 August 1995. He is the son of Mrs and Mr O, who separated in 2005. RO no longer has contact with his father. His mother (as I shall call Mrs O in this judgment) now lives with Mr AB, whom I shall call his stepfather. I shall refer to the mother and stepfather together as RO's parents. The family unit comprises the parents, RO, an elder full sibling, DO, two younger full-siblings, AO and EO, and a half-sibling, LB. AO and EO are girls, the other siblings are boys.

8

In 2001 RO was diagnosed as suffering from ADHD. However, his autism was not diagnosed until 2007, when he was in danger of being excluded from his school, Hornsea School, and he was referred, pursuant to a core assessment by the council, to a specialist unit of the NHS Child and Adolescent Mental Health Service at West End, Hull ("West End") for a residential evaluation. RO was there for four months, from 19 February to 22 June 2007. There he came under the care of Dr Hufrize Rasool, the consultant child and adolescent psychiatrist at West End. She diagnosed RO as suffering from "childhood autism comorbid with severe combined ADHD". Her report to the council dated 15 June 2007 described RO as a very challenging young man whose difficulties were severe and pervasive. He would not be able to survive mainstream school and required an urgent assessment of his special educational needs. He was not to be seen as a child with severe conduct problems but one with complex needs which made him vulnerable. He needed "a special school" identified for him urgently. Although in that report she did not write expressly of a residential school, minutes of RO's discharge meeting held on the previous day, 14 June 2007, said Dr Rasool "will recommend a Special School with boarding facilities". However, a more formal minute of that meeting did not mention such boarding facilities but spoke of "a small structured school". It also recorded Dr Rasool's opinion that RO "is unable to cope even in small social settings such as his family. He cannot understand social values, norms and order. He has no idea of feelings or understanding of people's positions." Both minutes came from the council's disclosure.

9

Later in 2007 the council began to provide RO with weekend respite care. The first such weekend took place at the beginning of August 2007. He would go to specialist foster-carers for either one weekend or (later) two weekends a month. It is from this time that he was regarded as achieving LAC status, as a child "in need" who was being accommodated by the council under section 20 of the Children Act. A dispute has since emerged as to whether that accommodation was provided by the council by reason of its duty to accommodate under section 20(1)(c) of that Act, or under its power to accommodate under section 20(4). For the provisions of section 20, see under [70] below. Whether that issue matters, remains to be considered: but it is common ground that from this time at least RO was a child "in need" to whom LAC status applied, because of the accommodation provided to him by the council.

10

The first LAC review was held on 8 October 2007 and signed off on 12 December 2007. Its minutes recorded that for the purposes of short-break care he was "accommodated under Section 20". Thus no distinction was made between section 20(1)(c) and section 20(4). Its formal "Recommendations" referred, both under the heading of "Care Plan" and under the heading of "Education", for urgent consideration to be given to a "specialist residential" placement or provision.

11

Despite that recommendation, when a first draft SEN statement had been issued on 17 July 2007, to be followed by a second draft on 19 October 2007, both had named a day school, Farrow House School, in Hull, as an appropriate placement. The mother objected, but on 29 November 2007,...

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