R (on the application of O) v East Riding of Yorkshire County Council (Secretary of State for Education intervening)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Year | 2011 |
| Date | 2011 |
| Court | Court of Appeal (Civil Division) |
Children – Local authority – Looked after child – Statement of special educational needs – Claimant child being diagnosed with attention deficit hyperactivity disorder and autism – Local council providing weekend 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 – Council agreeing to residential school but asserting that claimant’s status as ‘looked after’ child ended with termination of respite care – Claimant appealing against dismissal of judicial review claim – Whether judge erring in concluding that ‘looked after’ status ended by residential school placement – Children Act 1989, ss 20, 22(1)(b) – Education Act 1996, s 324.
The claimant was born in 1995 and was diagnosed as suffering from attention deficit hyperactivity disorder in 2001. His autism, however, was not diagnosed until 2007 when, in danger of being excluded from school, he was referred to a specialist unit for residential evaluation. The unit’s consultant child and adolescent psychiatrist considered that a ‘special school’ needed to be identified for him urgently. In August, the defendant council began to provide weekend respite care for him as his mother and stepfather (the parents) were struggling to cope with his behaviour. As a child ‘in need’ provided with accommodation by a local authority under s 20 of the Children Act 1989, he was, from that point, regarded as a ‘looked after’ child pursuant to s 22(1)(b) of the Act, with the result that the defendant 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. A ‘looked after child review’ held on 8 October 2007 recommended that urgent consideration should be given to a ‘specialist residential’ placement for the claimant. Despite that recommendation, the claimant’s statement of special educational needs (SEN), issued on 29 November pursuant to s 324 of the Education Act 1996, named a day special school as an appropriate placement for him. The claimant’s parents wished for him to attend a residential school during the week and refused to send him to the day school, stating that it lacked
specialist expertise in autism. They subsequently wrote to the defendant’s education department, asking for the claimant to be accommodated in a suitable residential education placement and for a statutory re-assessment of his needs. Judicial review proceedings were issued on the claimant’s behalf and, from 3 September 2008, he 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. A number of experts reported that the claimant required a residential school and a particular residential school was ultimately agreed to by the defendant. The judicial review claim was, however, restored in order to challenge the defendant’s decision, expressed in a care plan dated 19 December 2008, 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 the 1989 Act upon commencement of that placement. The judge dismissed the claim in March 2010 and, upon appeal by the claimant, an issue arose, inter alia, as to whether the judge had erred in concluding that the residential placement was to be regarded as terminating the claimant’s status as a looked after child. The Secretary of State for Education made written submissions proposing the following test: where a placement was provided wholly or mainly to meet the child’s special educational needs, it might be reasonable for the placement to be provided solely by exercising the local authority’s powers under Pt IV of the 1996 Act but, even in such circumstances, the child might still require accommodation within s 20(1) of the 1989 Act or be provided with accommodation under s 20(4), for instance during school holidays, or might be supported by the authority by its exercise of its more general powers within s 17. Where, however, the placement was not provided wholly or mainly to meet the child’s special educational needs and the child was within s 20(1), or s 20(4) applied, then the placement might be provided under either the 1989 Act alone or under both Acts. The defendant accepted that test, but contended that the claimant required a residential school rather than accommodation.
Held – Applying the Secretary of State’s own test to the facts, the answer in the instant case had to be that the claimant’s placement was as much out of consideration for his (and his parents’) social needs as for his educational needs. In the circumstances, it was impossible to regard his SEN placement as being provided wholly or mainly to meet his educational needs, as distinct from being provided to meet both those needs and the needs for which he had become and was a looked after child. It was plain that he required full-time accommodation in his specialist placement in order to give him the care, as well as the educational assistance, which his needs, and his parents’ inability to cope with and control him, demanded. The fact that his parents were willing to have him home at weekends and during the holidays did not detract from that conclusion; they could manage him, and wanted to parent him, on weekend and holiday visits, but could not cope with him in the absence of the accommodation and care which was to be provided for him at the residential school. The defendant had mislabelled the situation and
side-stepped its 1989 Act responsibilities by purporting to regard the SEN placement as supplanting and ending the claimant’s status as a looked after child. The defendant had never stopped to think about, let alone give anxious scrutiny to, the question of whether the factors which had led to respite care (when carried over into the placement at the residential school) necessitated a continuation of the claimant’s status; it had merely assumed that the status had come to an end with the ending of the respite care which had brought it into being. The defendant’s assumption that everything that was needed, from the point of view of the claimant and his parents, was to be provided under a 1996 Act label rather than under the 1989 Act was erroneous, irrational and unlawful. The appeal would accordingly be allowed, which meant that, at a later stage, the claimant would be helped to enter adult life by the provisions of the 1989 Act (see [114]–[116], [119], [125]–[127], below).
Cases referred to in judgmentsR (on the application of A) v Croydon London BC[2008] EWCA Civ 1445, [2009] 1 FCR 317, [2009] 1 FLR 1324.
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 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; rvsg[2008] EWCA Civ 877, [2009] 1 FCR 357, [2009] 1 WLR 34, [2008] 2 FLR 1762.
R (on the application of H) v Wandsworth London BC [2007] EWHC 1082 (Admin), [2007] 2 FCR 378, [2007] 2 FLR 822.
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.
AppealThe claimant, a child who suffered from attention deficit hyperactivity disorder 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’ 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’ within the meaning of the Children Act 1989 upon commencement of that placement. Written submissions were made on behalf of the Secretary of State for Education. The facts are set out in the judgment of Rix LJ.
Nicholas Bowen QC and Shu Shin Luh for the claimant by his litigation friend.
Stephen Bellamy QC and Sally Gore for the defendant.
Clive Sheldon for the Secretary of State for Education.
2 March 2011. The following judgments were delivered.
RIX LJ. 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...
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