R (on the application of TG) v Lambeth London Borough Council (Shelter intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Date | 2011 |
| Court | Court of Appeal (Civil Division) |
Children – Local authority – Looked after child – Former relevant child – Claimant child being sentenced to supervision order for one year – Social worker within defendant local authority’s Youth Offending Service reporting that claimant in ‘desperate need’ of housing – Defendant’s housing department providing accommodation for claimant – Social worker and housing department failing to refer claimant to defendant’s children services department – Claimant subsequently seeking judicial review of defendant’s refusal to deal with him as ‘former relevant child’ – Children Act 1989, ss 20(1), (3), 22(1), 23C(1), 23A(2), Sch 2, para 19B(2) – Housing Act 1996, s 188 – Crime and Disorder Act 1998, s 39(5)(aa) – Human Rights Act 1998, s 8, Sch 1, Pt I, art 8.
At the age of six the claimant moved from the care of his father in Jamaica to that of his mother in England. In 2004, when aged 15, he began to get into trouble with the police. On 6 April 2005, he was sentenced to a supervision order for one year with an intensive supervision and surveillance programme; for the following year he was therefore subject to the close attention of the local authority’s Youth Offending Service (YOS). Pursuant to s 39(5)(aa) of the Crime and Disorder Act 1998, as amended, a person ‘with experience of’ social work in relation to children was a necessary member of a YOS. In October 2005, changes were made to the local authority’s administrative structure pursuant to s 18 of the Children Act 2004; various departments exercising functions which related to children and young people were reorganised so as to place them within a Children and Young People’s Service (CYPS) under the charge of a ‘director of children’s services’. One of the five divisions of the CYPS was the ‘children and families division’ (the children’s services department), which exercised social services functions. The YOS was placed within a different division, namely the ‘community learning division’. Between December 2005 and April 2006, the social worker within the YOS who principally had dealings with the claimant was Ms A. In January 2006, the claimant told Ms A that he intended to approach the Homeless Persons Unit (HPU) of the local authority’s housing department for the provision to him of independent accommodation, alleging that his mother wanted him to leave the family
home. After speaking to his mother, Ms A wrote a ‘Homelessness and Social Vulnerability Report’, which stated that ‘… the relationship between [the claimant] and his mother has broken down to the point that it is not advisable that they both live in the same household … [the claimant] has now been asked to leave the family home by his mother.’ It went on to comment that ‘This young person is in desperate need of housing and would hope that his housing need is met as he fulfils the Child in Need criteria.’ Ms A gave the report to the claimant so that he could take it to the HPU, but did not refer him to the local authority’s children’s services department. Between March and October 2006, when the claimant was aged 16 and 17, accommodation was ostensibly provided for him by the local authority as a local housing authority, pursuant to its interim duty under s 188 of the Housing Act 1996. The housing department also failed to refer him to the children’s services department. On 4 November 2009, the local authority decided that the claimant was not a ‘former relevant child’ within the meaning of s 23C(1) of the Children Act 1989 and thus that it did not owe to him the duties set out in the section. In due course, the claimant sought judicial review of that decision on the basis that it was wrong in law. To qualify as a ‘former relevant child’, s 23C(1) required the claimant during his minority to have been a ‘relevant child’. A ‘relevant child’ was defined in s 23A(2), requiring the claimant to have been, when aged 16 or 17, a young person who (i) had been ‘looked after’ by the local authority; (ii) had ceased to be ‘looked after’ by it; and (iii) before ceasing to be ‘looked after’ by it, had been an ‘eligible child’. An ‘eligible child’ was defined in para 19B(2) of Sch 2 to the 1989 Act and, insofar as material and in the light of the matters prescribed in reg 3 of the Children (Leaving Care) (England) Regulations 2001, SI 2001/2874, required the claimant to have been, when aged 16 or 17, a young person who was being ‘looked after’ by the local authority and whom it had ‘looked after’ for at least 13 weeks beginning after his 14th birthday and ending after his 16th birthday. A ‘looked after’ child was defined in s 22(1), requiring the claimant to have been provided with accommodation in the exercise of any of the local authority’s social services functions, in particular those under s 20(1) or (3). The claimant’s application was dismissed, the judge holding that the duty to provide accommodation as a children’s services authority pursuant to s 20 was not triggered until a child came to the attention of the division of the local authority responsible for those functions in the ordinary course; the peripheral attention of a duly qualified official of a different team would not do. On appeal by the claimant, the local authority conceded that ‘in all probability’ the accommodation should have been provided by it as a children’s services authority under s 20 of the 1989 Act rather than by it as a housing authority under the 1996 Act. The appeal therefore turned on whether the accommodation was to be deemed to have been provided under s 20. The Court of Appeal also considered whether to grant permission for the claimant to proceed with a claim for damages under s 8 of the Human Rights Act 1998, on the basis that the local authority’s past failures to meet
various alleged entitlements on his part represented an infringement of his right to respect for his private life under art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the 1998 Act).
Held – (1) It was impossible to read the words in s 22 of the 1989 Act to include a child who had not been drawn to the attention of the local children’s services authority or provided with any accommodation or other services by that authority. However, the judge in the instant case had been wrong to hold that the claimant had to show that the children and families division had acted ‘in the ordinary course’. Ms A was not merely a qualified social worker with experience of social work in relation to children: her membership of the YOS reflected a statutory requirement that at least one of its members should have such experience. In the YOS she represented the eyes and ears of the children and families division of the CYPS. She had written a report about the claimant in terms apt only for the consideration of that division but, unfortunately, had not sought to dissuade the claimant from putting it only before the housing department. In the circumstances, the actions of Ms A were properly to be imputed to the children and families division. Accordingly, the appeal would be allowed; the judge’s dismissal of the claim for judicial review would be set aside; the local authority’s decision dated 4 November 2009 would be quashed; and, in that such was the only conclusion lawfully open to the local authority, it would be declared that, as from the claimant’s 18th birthday, he had had the status of a ‘former relevant child’ for the purposes of s 23C of the 1989 Act (see [23], [28]–[29], below); R (on the application of M) v Hammersmith and Fulham London BC[2008] 3 FCR 688 considered.
(2) The duties cast by Parliament upon the state to aid the personal development of a person who was or had been an adolescent in need, which raised the bar of welfare provision to him to an appropriately high level, were the creature of statute and enforceable on that basis. A failure to discharge the duties might lead to an infringement of that person’s right under art 3 of the Convention; but otherwise the consequences of failure were likely to be, as they certainly were in the instant case, far too nebulous, far too speculative and, insofar as discernible, far too slight to lead to a conclusion that the failure infringed his right to respect for his private life under art 8. The duties were not manifestations of the state’s obligation to satisfy the rights of its citizens under art 8. The claimant’s grounds of claim afforded no material whatever with which to identify the likely impact of the provision to him of the requisite support, still less to argue therefrom that the absence of such provision represented a violation of art 8. It was not good enough baldly to argue that the provision would be likely to have had some positive effect upon the quality of his private life. Permission for the claimant to proceed with his claim for damages would therefore not be granted (see [45]–[46], below).
Cases referred to in judgmentsAndersson v Sweden (1986) 46 DR 251, E Com HR.
Anufrijeva v Southwark London BC, R (on the application of N) v Secretary of State for the Home Dept, R (on the application of M) v Secretary of State for the Home Dept[2003] EWCA Civ 1406, [2003] 3 FCR 673, [2004] 1 All ER 833, [2004] QB 1124, [2004] 2 WLR 603, [2004] 1 FLR 8.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
Marzari v Italy (1999) 28 EHRR CD 175, E Com HR.
Mohammed v Home Office[2011] EWCA Civ 351, [2011] All ER (D) 329 (Mar).
MSS v Belgium (App no 30696/09) (judgment, 21 January 2011), ECt HR.
R (on the application of A) v Lambeth London BC[2003] UKHL 57, [2003] 3 FCR 419, [2004] 1 All ER 97, [2004] 2 AC 208, [2003] 3 WLR 1194, [2004] 1 FLR 454.
R (on the application of Bernard) v Enfield London BC [2002] EWHC 2282 (Admin), [2003] LGR 423.
R (on the application of G) v Southwark London BC[2009] UKHL 26, [2009] 2 FCR 459, [2009] 3 All ER 189, [2009] 1 WLR 1299, [2009] 2 FLR 380.
R (on the application of M) v Hammersmith...
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