R (on the application of O) v East Riding of Yorkshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Year | 2010 |
| Date | 2010 |
| Court | Queen's Bench Division |
Children – Local authority – Looked after child – Statement of special educational needs – Claimant child being diagnosed with autistic spectrum disorder and attention deficit hyperactivity disorder – Local council providing respite care – Statement of special educational needs identifying day special school as appropriate placement – Parents preferring for claimant to attend residential school during week – Claimant bringing judicial review proceedings against council – Council producing revised statement identifying residential school – Claimant amending judicial review claim – Whether council entitled to end claimant’s ‘looked after’ status on account of accommodation at residential school in accordance with statement of special educational needs – Children Act 1989, ss 20(4), 22(1)(b), 23, 85 – Education Act 1996, s 324.
The claimant was a 14-year-old boy who displayed extremely challenging and disruptive behaviour. Although his parents were ordinarily capable of delivering an acceptable standard of care, his mother requested respite care in October 2005 on account of his behaviour. In due course, the local council produced a core assessment recommending respite care once a month and that the claimant be referred to a specialist unit for residential evaluation of his behaviour and educational needs. The claimant spent four months at the unit, during which time his school requested a special educational needs assessment under the Education Act 1996. He was diagnosed as suffering from autistic spectrum disorder and attention deficit hyperactivity disorder, and the unit’s consultant child and adolescent psychiatrist considered that he required a very specialist education environment with a high degree of structure to allow him to reach his potential. She reported to the council’s special educational needs section that an urgent assessment of his special educational needs should be undertaken. The claimant returned to his former school on a part-time basis and respite care was provided to him from August 2007. As a child provided with accommodation by a local authority in the exercise of its social services functions, he thus became a ‘looked after’ child pursuant to s 22(1)(b) of the Children Act 1989, with the result that the local authority was under a general duty to safeguard and promote his welfare by virtue of s 22(3)(a). According to s 22(3A), that duty included a duty to promote his educational achievement. Specific duties to accommodate and maintain looked after children were also set out in s 23 of the 1989 Act. On 29 November 2007,
the claimant’s statement of special educational needs was issued pursuant to s 324 of the 1996 Act. Although it named an independent day special school as an appropriate placement for him, the parents refused to send him there, stating that they wished for him to attend a residential school during the week. They subsequently wrote to the council’s education department, complaining of a failure to provide the claimant with education otherwise than at school, and requested a statutory re-assessment of his needs. Judicial review proceedings were issued on the claimant’s behalf and, from 3 September 2008, the claimant was temporarily accommodated in a children’s home in order to facilitate full-time education so that his special educational needs could be re-assessed. According to the council, that accommodation was provided pursuant to s 20(4) of the 1989 Act, which stated that ‘[a] local authority may provide accommodation for any child within their area (even though a person with 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’. A number of experts reported that the claimant required a residential school and the claimant sought leave to apply to amend the grounds of his claim in order to rely on the reports. His residence in the home was continued, with the matter being adjourned generally. In November, a revised statement was sent to the parents, specifying residential education. A particular school was agreed upon and the council decided, in a ‘looked after child’ care plan dated 19 December, that, since the claimant’s welfare needs would be met by the educational placement under the 1996 Act, he would cease to be a looked after child under s 20(4) of the 1989 Act upon commencement of that placement. The plan stated that the claimant would continue to receive respite care until he commenced the placement. Although he made good progress at the residential school, the original judicial review claim was restored in order to challenge the council’s decision to end his ‘looked after’ status. The claimant submitted, inter alia, that a change in his status could not be justified simply because the residential school was capable of being provided under s 324 of the 1996 Act; the council could not side-step its duties under ss 22 and 23 of the 1989 Act and effectively substitute those duties with weaker responsibilities under s 324 of the 1996 Act. In considering the claim, the court had regard to s 85 of the 1989 Act, which applied where a child was provided with accommodation by a local education authority for a consecutive period of at least three months. Section 85(1)–(2) obliged the accommodating authority to notify the local authority both when it accommodated and ceased to accommodate the child. Section 85(4) provided that where a local authority had been notified under the section, it ‘shall—(a) take such steps as are reasonably practicable to enable [it] 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) [it] should exercise any of [its] functions under this Act with respect to the child’.
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Held – Since the claimant was at the residential school and neither wanted nor received respite accommodation, he was no longer a looked after child. That was neither a question of labelling, nor a matter of the council side-stepping its legal duties; it followed directly from the statutory definition of a looked after child in s 22(1)(b) of the 1989 Act as a child provided with accommodation by a local authority in the exercise of its social services functions. Social services functions did not cover accommodation provided as a result of a statement of special educational needs under the 1996 Act. The claimant had a statement of special educational needs, naming a school which the family wanted; it happened to be a residential school. Although the duty to ‘safeguard and promote’ a child’s education imposed by s 22(3A) of the 1989 Act might in certain cases run alongside the detailed provisions of the 1996 Act, it was no substitute for, nor paramount over, those provisions. For the council not to have acted under the 1996 Act to offer the claimant the residential school might well have been regarded as ‘side-stepping’ the specific duties which Parliament had imposed on it. That conclusion was reinforced by s 85 of the 1989 Act. Because the claimant was accommodated by the local education authority, s 85 placed a duty on the council to keep under review the question of whether it needed to exercise any of its functions under the Act with respect to the claimant. The existence of that provision thus demonstrated that Parliament could not have envisaged that children who were in a residential school would automatically be regarded as ‘looked after’ pursuant to ss 20 and 22(1)(b) of the 1989 Act; had that been the case, there would have been no need for a section requiring the local authority to consider whether it needed to exercise any of its social services functions. In the circumstances, the council had not erred in law in ceasing to regard the claimant as requiring accommodation pursuant to s 20 and the application would be dismissed (see [70]–[71], [74], below).
Cases referred to in judgmentAssociated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA.
Puhlhofer v Hillingdon London BC [1986] 1 All ER 467, [1986] AC 484, [1986] 2 WLR 259, [1986] 2 FLR 5, HL.
R (on the application of A) v Croydon London BC, R (on the application of M) v Lambeth London BC[2008] EWCA Civ 1445, [2009] 1 FCR 317, [2009] 1 FLR 1324; rvsd[2009] UKSC 8, [2009] 3 FCR 607, [2010] 1 All ER 469, [2009] 1 WLR 2557, [2010] 1 FLR 959.
R (on the application of A) v Lambeth London BC, R (on the application of G) v Barnet London BC, R (on the application of W) 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 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 and Fulham London BC [2008]
UKHL 14, [2008] 3 FCR 688, [2008] 4 All ER 271, [2008] 1 WLR 535, [2008] 1 FLR 1384.
R (on the application of Wahid) v Tower Hamlets London BC[2002] EWCA Civ 287, [2002] LGR 545.
R v Secretary of State for Education and Science, ex p E[1993] 2 FCR 753, [1992] 1 FLR 377, CA.
Shah v Barnet London BC [1983] 1 All ER 226, [1983] 2 AC 309, [1983] 2 WLR 16, HL.
W v Leeds City Council[2005] EWCA Civ 988, [2005] ELR 617.
ApplicationThe claimant, a 14-year-old boy who suffered from autistic spectrum disorder and attention deficit hyperactivity disorder, applied for judicial review of the decision of East Riding of Yorkshire County Council, expressed in a ‘looked after child’ care plan dated 19 December 2008, that, since his welfare needs would be met by an educational placement at a residential school under the Education Act 1996, he would cease to be a looked after child under s 20(4) of the Children Act 1989 Act upon commencement of that placement. The facts are set out in the judgment.
Nicholas Bowen QC and Shu Shin Luh for the claimant.
Stephen Bellamy QC...
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R (on the application of O) v East Riding of Yorkshire County Council (Secretary of State for Education intervening)
...and autism, appealed against the decision of Cranston J, sitting in the Administrative Court on 11 March 2010 ([2010] EWHC 489 (Admin), [2010] 2 FCR 204), dismissing his claim for judicial review of the decision of East Riding of Yorkshire County Council, expressed in a ‘looked after child’......