The King on the Application of DF v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Dexter Dias |
| Judgment Date | 22 December 2023 |
| Neutral Citation | [2023] EWHC 3330 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1538/2023 |
[2023] EWHC 3330 (Admin)
Dexter Dias KC
(sitting as a Deputy High Court Judge)
Case No: CO/1538/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Hannett KC and Mr Clarke of counsel (instructed by Coram Children's Legal Centre) for the Claimant
Mr Sheldon KC and Ms Gannon of counsel (instructed by Essex Legal Services) for the Defendant
Hearing dates: 8 September 2023
APPROVED JUDGMENT
Circulated to parties 6 November 2023
This judgment was handed down remotely at 10.30am on 22 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dexter Dias KC:
(Sitting as a Deputy High Court Judge)
This is the judgment of the court.
To assist parties and the public follow the court's line of reasoning, the text is divided into 13 sections, as set out in the table below.
B123: hearing bundle page number;
CS/DS §45 claimant/defendant skeleton paragraph number.
§I. INTRODUCTION
| Section | Contents | Paragraphs |
| I. | Introduction | 3–7 |
| II. | Brief facts | 8–29 |
| III. | Overarching legal framework | 30–39 |
| IV. | Issues | 40–42 |
| V. | Issue 1: homelessness under s.175 | 43–70 |
| VI | Issue 2: consequence of a homelessness finding | 71–75 |
| VII. | Issue 3: whether homelessness/trespass relevant s.20 considerations | 76–81 |
| VIII. | Issue 4: accuracy of accommodation information provided | 82–91 |
| IX. | Issue 5: whether any refusal of accommodation/support | 92–99 |
| X. | Issue 6: overall reasonableness of defendant's decision | 100–129 |
| XI. | Issue 7: discretionary treatment as former relevant child | 130–137 |
| XII. | Issue 8: relief | 138 |
| XIII. | Disposal | 139–140 |
In this application for judicial review, the claimant, then aged 17, had been living with her mother in a council flat when her mother died from an unintentional drug overdose.
The mother's life had been blighted by severe addiction and mental health problems, but since the child was largely estranged from her father, she had been living in her mother's highly dysfunctional household. Following her mother's death, the claimant was assessed by the defendant local authority as a “child in need” for the purposes of child welfare and protection legislation. She told the local authority children's services that she wished to live on in the flat she had shared with her mother, but the landlord, an arms-length management organisation for the housing authority, served notice to terminate the tenancy by sending the claimant a formal notice to quit. A series of legal issues were thrown up. Did this make the child homeless or was she in fact already homeless for the purposes of the Housing Act 1996 (“HA 1996”)? Where would this child, who had led such a chaotic life, live? Whose duty was it to ensure she was supported and adequately housed – “accommodated”? Once she turned 18, how should she be treated and supported, if at all, by the local authority? These are among the vital questions arising in this case.
The court has granted an anonymity order to protect the claimant's right to respect for her private and family life. She will be known as DF for the purposes of the case title, but more simply as “C” within the text of this judgment. She is represented by Ms Hannett KC and Mr Clarke of counsel. The defendant local authority is Essex County Council. The defendant is represented by Mr Sheldon KC and Ms Gannon of counsel. The court is grateful to all counsel for their invaluable assistance.
The two prime grounds of judicial review are:
(1) The defendant's failure to recognise that it owed a duty to the claimant under s.20 of the Children Act 1989 (“CA 1989”) to provide accommodation for her as a child in need;
(2) The defendant's failure after she turned 18 to exercise its discretion to treat the claimant as a former relevant child under s.23C CA 1989.
The simple statement of these grounds masks a series of potentially complex sub-issues generated by the underlying facts. I set out some brief background facts that will act as anchor points for the legal analysis that must follow. But let me emphasise that no one doubts, or could credibly doubt, that this child was properly classified as a child in need and was vulnerable. The case raises serious questions about the public duties – our collective obligations – to her.
§II. BRIEF FACTS
It is necessary, notwithstanding the high need for anonymity, to state the claimant's date of birth due to the significance and timing of events leading up to her 18 th birthday. She was born on 8 April 2005. Due to the difficulties within the family, social services have been involved in her life from an early age. We see here a regrettably familiar but nevertheless alarming repeating cycle of dysfunction. C's mother was 14 years old when C was born. The mother suffered from various mental health problems, including bipolar disorder, emotionally unstable personality disorder, post-traumatic stress disorder, severe anxiety and depression. She also lived with drug problems, leading to repeated incidents of self-harm and overdose. C's parents separated when C was 11 or 12, with C and her sisters initially staying in the care of their mother. The family moved around often, including to escape domestic violence from her mother's new partner. After C's mother attempted suicide, C and her sisters went to live with their father.
However, C's relationship with her father was strained. She alleged that he was violent towards her. In May 2019, she left him to live with her mother again. This was in a one-bedroom flat and C had to sleep on the sofa. However, the mother's new partner was abusive and strangled her. Mother and child were moved by Colchester Borough Council (from November 2022 Colchester City Council (“CCC”)) into a two-bedroom flat with a secure tenancy granted by Colchester Borough Homes (“CBH”), an organisation that operates in an arms-length management capacity on behalf of the Council. Thus it was that from May 2021 C lived with her mother in the flat in which her mother was to die in August 2022.
When the mother died on 25 August 2022, the Ambulance Service made a referral to the defendant because of its concern about C. On 2 September, the defendant allocated Ms Pinchess, a senior social worker, to complete a Child and Family Assessment (“CFA”) under s. 17 CA 1989. On 13 September, C indicated to the defendant that she wished to continue living in the flat. By then, it had been her home for 18 months or so, and she lived there with her cats and boyfriend.
On 9 November 2022, CBH informed Ms Pinchess that C had applied to succeed to her mother's tenancy, but said that due to her minority this was impossible as the tenancy could not be passed on to a minor.
On 30 November 2022, Ms Pinchess completed the CFA. The conclusion was that C was a child in need for the purposes of s. 17 CA 1989. The CFA records that “options [were] being explored with housing and family for [her] accommodation”; that she would “require the support of services to ensure her housing and financial needs [were] met until she is 18”; and that there would “need to be explorations of who is best placed to offer this support”.
For some time, C had worked with Ms Chapman, a Young Carer's social worker, because despite her youth, C had provided her mother with some care. Ms Chapman's note of her conversation with Ms Pinchess records that C's father felt that any arrangement for C to live with him would break down quickly and C no longer saw living with her boyfriend's mother as an option, even if she were homeless.
On 1 December 2022, CBH served notice to quit terminating C's mother's tenancy of the property from 2 January 2023. The tenancy had vested in the Public Trustee upon the mother's death.
On 11 January 2023, C's case was transferred from Ms Pinchess to another social worker Ms Primmer.
On 24 January 2023, C instructed solicitors at Coram Children's Legal Centre (“CCLC”). They sent a letter before claim under the Pre-Action Protocol (“PAP”) in respect of ECC's failure to provide C with accommodation under s. 20 CA 1989 and, consequently, its failure to comply with its care planning duties to her as an eligible child.
On 1 February 2023, the defendant's PAP response rejected the claim that C was homeless. It stated that the only other options for accommodation under section 20 CA 1989 would be (i) placement with a foster carer which, for C to remain living with her boyfriend, would require him to be made C's foster carer or (ii) placement in semi-independent accommodation, without her cats. The defendant offered to investigate the possibility of CBH exercising its discretion to offer C a tenancy of the property, or other accommodation where she could live with her boyfriend.
On 7 February 2023, CCLC wrote to CCC, providing a copy of the defendant's response to the letter before claim and asking for CCC's comments. CCC's solicitor responded the next day, saying that it would not exercise any discretion to accommodate C, but confirming that it might take around 12 months for the hearing of any possession claim.
On 10 February 2023, CCLC wrote to the defendant asserting that, contrary to the defendant's stated position, C had had no legal right to remain at the property and the s.20 duty arose on the basis that, although she had a roof over her head, her situation was precarious. CCLC also pointed out that it was open to the defendant to secure independent accommodation for C under s.22C(6)(d) CA 1989, where she and her boyfriend could stay, without any requirement for him to be her foster carer.
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