R (O) v East Riding District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 11 March 2010 |
| Neutral Citation | [2010] EWHC 489 (Admin),[2009] EWHC 871 (Admin) |
| Docket Number | CO/7590/2008,Case No: CO/7590/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 March 2010 |
[2009] EWHC 871 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Carlile of Berriew QC
(Sitting as a Deputy High Court Judge)
CO/7590/2008
Ms Shu Shin Luh (instructed by the Children's Legal Centre) appeared on behalf of the Claimant
Miss S Gorg (instructed by the Local Authority Solicitor) appeared on behalf of the Defendant
(Draft for approval)
THE DEPUTY JUDGE: This case is about a 13-year old boy who falls within the autism spectrum. He suffers from multiple needs. He requires education tailored to his particular needs. That education is a “waking-day curriculum”, as it is sometimes called.
The defendant local authority, the East Riding of Yorkshire County Council, has performed the educational requirements, including the provision of a Statement of Special Educational Need. As a result of that educational procedure, the child, who is known in these proceedings as RO, has a placement in a boarding school (school H) where he can, at the wishes of his parents, remain at weekends as well as during the week. I have no doubt, and certainly I hope, that that is an arrangement which is as flexible as is compatible with his needs and the requirements of his parents.
This court, and I am sure everybody who has any knowledge of this case, would declare its admiration for the efforts of the parents to do everything that is right for RO. It is amply evident to me from the papers that they have been fighting his corner at every turn, as one would expect of parents apparently as exemplary as them.
This application is to restore these judicial review proceedings because, and it is a fact, there has been no provision of accommodation for RO pursuant to section 20 of the Children Act 1989. The claimant says that it is plainly arguable that RO, despite the educational provision which I have already summarised very briefly, should also have the provision of accommodation by the local authority. It is argued by Miss Luh, counsel for the claimant, that there should be co-terminus provision, therefore, both educational and in terms of accommodation.
Miss Gorg, on behalf of the defendant local authority, has argued that this is a case in which it would be inappropriate to provide accommodation other than restbite care, which was provided to deal with past circumstances under section 20, because this is simply not a section 20 case.
Miss Luh points to what she says are considerable advantages of having been the recipient of accommodation under section 20, as opposed to only educational provision. She says that at age 16 different provisions apply to young people who have been provided with section 20 accommodation, which are more advantageous to the care of the young person concerned in future years.
Without going into that point in undue detail, I have been reminded, and I am in any event aware, that there is a paraply (?) of statutory provision, which deals with what happens to a vulnerable person aged 16, or more, in various scenarios. It may well be that there are some advantages in the person concerned having been accommodated under section 20 of the Children Act, but I find no authority for the assertion that the young person concerned's rights can only be protected properly and fairly by co-terminus provision.
I turn to section 20 of the Children Act. It provides:
“(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented … from providing him with suitable accommodation or care.”
Subsection (4) provides:
“(4) A local authority may provide accommodation for any child within their area (even though a person who has 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.”
Section 20 has been subject to litigation in the past and indeed there is recent authority. In R (on the application of G) v the London Borough of Southwark [2008] EWCA Civ 877, Longmore LJ stated:
“But the fact that section 17(6) empowers a local authority to provide accommodation as part of its general duty to safeguard and promote the welfare of children within their area must presuppose that not every child (or even every child in need who satisfies the three criteria in section 20(1) of the 1989 Act) must require accommodation under section 20; otherwise there would be no room for the evaluative judgment which everyone agrees the local authority must make pursuant to the statutory phrase “who appears to them to require accommodation”.
In the same case Rix LJ and Pill LJ made similar comments. Pill LJ at paragraph 85 said:
“85. For the duties under the 1989 Act to arise, it has to be established that G “requires accommodation” in section 20 terms. That is a discrete requirement the meeting of which does not necessarily follow from having established, as in this case, that the requirements of one of the paragraphs (a) to (c) of section 20(1) has been satisfied.”
The defendant therefore contends that the claimant does not require accommodation at the present time because the accommodation, as a matter of fact, is being provided by school H and also by the claimant's parents at the time that they indicate they wish RO to be at home.
Indeed, in G v Southwark Rix LJ at paragraph 77 pertinently said:
“The test under section 20(1) is not the broad test of whether the child in question needs to be “looked after”, but the much narrower test of whether the child appears to require accommodation as a result of finding himself alone in any of the three situations set out in that sub-section.”
In my judgment, although there may possibly be some advantages of a child being accommodated under section 20 for their future provision once they reach 16, unfortunately it is unarguable that RO falls within section 20. It is clear that RO does not fall within section 20. Put at its simplest, he does not appear to require accommodation and none of the criteria (a) to (c) in subsection (1) are satisfied. Further, in relation to subsection (4), the child's welfare is safeguarded and promoted by the educational placement which he has now received.
Having therefore considered the facts of this case, and there is an amplitude of paper to read about this child, RO, I have concluded that this case is, in effect, unarguable and the application to restore should be refused.
I would expect that you say no, but I would nevertheless ask for permission to appeal on your judgment on the basis that, first of all, it is not true factually that the parents wished for him to be home. In fact they have been fighting to extend that restbite care to longer provision. The restbite care was supposed to be full-time restbite with special educational placement. Second, once he was accommodated under section 20 by restbite and later under a court order under section 22(3)(a) a duty arose to attend to his educational welfare as well as his social welfare. This is simply not a case where you can separate—
THE DEPUTY JUDGE: Just let me read section 22(3(a).
Whilst he was first under restbite care and then, second of all, under section 20 then under a court order, the duty to provide him with educational welfare as well as around the clock supervision not just simply because of his educational welfare, but fundamentally because of his needs, arises.
The second issue is that essentially the reason for the special educational placement on the facts arose out of the core assessment, not out of the statutory Statement of Special Educational Needs. In fact all along we were asking for educational records because there is clearly an educational need. However, this was all about a social care JR and the local authority had in fact accepted all along it was simply about full-time placement and services arising out of his needs as a holistic package. That includes education, but it is not only about education.
Therefore to separate accommodation and education is precisely to fall foul of the framework assessment for children in need and families, which states that the Social Services, a lead agency, looks at the holistic picture. That includes asking the education authority to do a statutory assessment, including looking at the health authority to perhaps look at a psychiatric assessment and put together a care package that includes all of these needs—
THE DEPUTY JUDGE: Are we doing the case again?
I am simply saying that by your distinctions, first of all, as a circular distinction, of course, he had accommodation because his accommodation came about because there was an acceptance of section 20. At the point where they placed him at the residential placement they had already accepted it.
THE DEPUTY JUDGE: To get leave to appeal you will have to go to the Court of Appeal. I am not going to grant it. Just so you know the mechanics, because I have given an extempore judgment that will be transcribed from the tape. It will then be sent to me for correction. As I said earlier, if either counsel wishes to offer me any factual corrections on the basis that I am wrong, and that is a matter for the Court of Appeal, please do so soon using whatever notes you took. Then in...
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