R (A) v Coventry City Council
| Jurisdiction | England & Wales |
| Judgment Date | 22 January 2009 |
| Neutral Citation | [2009] EWHC 34 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/10458/2007 |
| Date | 22 January 2009 |
[2009] EWHC 34 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before: Antony Edwards-Stuart QC
Sitting as a Deputy Judge of the High Court
Case No: CO/10458/2007
Mr Ramby de Mello (instructed by Coventry Law Centre) for the Claimant
Mr Bryan McGuire (instructed by Coventry City Council) for the Defendant
Hearing date: 10 December 2008
Mr Antony Edwards-Stuart QC:
Introduction
Late one night in early February 2007, the Claimant (to whom I shall refer as Terry) left his father's house and went round to the home of a Ms Elizabeth Casey, with whom his elder brother, Matthew, had been staying, saying that he had been thrown out by his father's partner. Terry was then aged about 15 1/4. Matthew had been staying for some time at the home of Ms Casey, who was the mother of his friend Christopher. She had effectively taken Matthew in as one of the family. She agreed that Terry could stay there too.
Terry's mother had died about three years earlier, and her death was followed a couple of weeks later by the death of Terry's other elder brother, Stephen, who was severely disabled. At that time their father had left their mother, and so the two surviving brothers were left to fend for themselves as best they could on their own at home. After about four months, Matthew went off to live with Ms Casey and Terry went to stay with his elder married step sister.
It seems that Terry was happy with his step sister's family, who treated him as one of their own. However, after about a year or so Terry went on holiday with his father and his new partner, Marie, probably in about the summer or autumn of 2005. During the holiday they asked him if he would like to live with them; apparently, they were going to have an extension built and he would be able to have a room of his own. So Terry went to live with his father. It was a three bedroom house in which there were already living three children under nine (two step brothers and a step sister), Terry's father and Marie. Terry had to share a bed with his father whilst Marie slept downstairs. The extension was not built and, unsurprisingly, these unsatisfactory arrangements for the family's accommodation did not work. On the night in February 2007 to which I referred at the outset, Terry returned from skateboarding a little later than usual, tempers frayed and Marie told him that she wanted him out of the house. He telephoned his brother who told him that he could go and stay in Ms Casey's house where he was living.
Since then, Terry has remained with Ms Casey, with whom he has been very happy. She has cared for and supported him ever since, almost entirely at her own expense. He is now 17 and attending a carpentry course at a City College in Coventry. Ms Casey's kindness to Terry reflects enormous credit on her and her care has been beyond reproach. The principal question before the court is under what arrangements, if any, Terry was and is being accommodated by Ms Casey.
The claim
Terry, acting initially through Ms Casey, as his next friend, brought a claim seeking judicial review of the failure by the Defendant (the Council) to make a proper assessment of his needs in respect of financial assistance and of the decision thereafter to withdraw financial support from the date of his sixteenth birthday, 11 November 2007. He sought in addition various consequential declarations and orders.
However, by Amended Grounds, for which permission was given on 30 July 2008, Terry seeks to challenge the Council's considered decision that Terry was accommodated by Ms Casey pursuant to a private fostering arrangements and that Terry was not eligible for financial assistance. By an earlier order made by Forbes J on 20 February 2008, the application for permission to apply for judicial review was to be “rolled up” with the substantive application. I gave permission to apply during the hearing and so this judgment is concerned only with the substantive application.
Essentially, the central point in the case is whether Terry was (or should have been) provided with accommodation by the Council under section 20 of the Children Act 1989, with all the consequences that that entails, or whether there was indeed a private fostering arrangement made between Ms Casey and Terry's father (or, alternatively, as it seems to have been suggested at one point in an Independent Investigator's report of the Defendant's, with Terry himself). In a letter dated 23 October 2007, the Council asserted that Terry was privately fostered, by an arrangement made between Ms Casey and Terry's father. All subsequent documents originating from the Council have proceeded upon the assumption that there was a private fostering arrangement.
At the hearing Mr Bryan McGuire, who appeared for the Council, directed his submissions to the question of whether the section 20 duty ever arose, rather than to upholding the case based on the existence of the private fostering arrangement. The Council's point is very simple: Terry did not require accommodation because he already had it, what he (or Ms Casey) required was money. The response of Mr De Mello, who appeared for Terry, is that Terry required accommodation and that the Council is to be taken as having provided it because it never made it clear to Ms Casey that she was being expected to look to Terry's father for the necessary financial support (or to provide it herself) and that it would not be provided by the Council.
The background to the claims and findings
The Council's involvement in this part of story appears to have begun on about 28 March 2007, when Ms Casey went to the Council's Coundon office to explain the position and to say how difficult she was finding it to support Terry without any financial support. She says that she told the person she saw that she was getting into arrears with her rent and Council Tax, and that she didn't want Terry to be taken into care—which is what would happen if she didn't receive some financial assistance.
It seems to be accepted that this visit took place (see the Council's letter of 23 October 2007, at page 227 of the Trial Bundle), although there appears to have been no record of this conversation. I accept that the visit and conversation took place as Ms Casey describes, mainly because that is exactly what one might have expected to have happened and also because it is not inconsistent with any of the near contemporaneous documents. This visit should have triggered an initial assessment by the Council, which according to the relevant guidelines should have taken place within 7 days (see “Framework for the Assessment of Children in Need and their Families”, paragraph 3.9).
Unfortunately this did not happen. The first visit by a Children & Family Worker (together with a social worker from Fostering Services) to Ms Casey's home appears to have taken place on 21 June 2007 (not 4 June 2007 as suggested by the Initial Assessment—see the Council's Stage 2 Report, TB page 206). The Initial Assessment records also that there were further visits on 20 July, 17 and 31 August 2007, but the Stage 2 report suggests that these were probably visits by Ms Casey to the Council Offices. To the extent that it is necessary to do so, I find that the visits probably took place as noted in the Stage 2 report, and not as recorded in the Initial Assessment.
The Initial Assessment appears to have been completed on 2 September 2007 by a Children & Family Worker who probably saw Ms Casey no more than twice (see the Council's Stage 2 Report, TB page 206). The reason why this assessment took nearly 5 months, and not the 7 days that the guidelines require, was at least in part attributable to the fact that Children & Family Worker concerned, who it seems was still under training, had not realised that she was supposed to do it (see the Council's Stage 2 Report, TB page 207). It is to be noted also that the Fostering Team Social Worker is recorded as saying that Children & Family Worker was not clear about her role or what she needed to do (see the Council's Stage 2 Report, TB page 208).
It is Ms Casey's case that she told the social workers, both during the June 2007 visit and subsequently, that she could not afford to support Terry any longer and that if she did not get some financial assistance from the Council either Terry would have to return to his father or he would have to go into care. However, at paragraph 13.5 of the Council's Stage 2 Report (TB page 210), the findings record that:
“During the first visit … on 21 June 2007 [Ms Casey] was clearly told that this was a private fostering situation and the department were [sic] not responsible for funding the young person's placement.”
If this is correct, then it is a little odd that a month later (as recorded in the following paragraph of the report) Ms Casey is said to have asked the Council why she was not receiving the full fostering allowance.
The Initial Assessment, by contrast, presents a rather different picture to that reflected by the statement in the Council's Stage 2 Report quoted above. It is noted, on page 9 (TB, page 115) that:
“[Ms Casey] has made it clear that if she does not get some support from social care then Terry will have to return to live with his father or go into care.
Terry is very clear about not returning to live with his father and wishes to stop with Ms Casey.”
The Fostering Assessment, which was not completed until 7 November 2007, must also have...
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