The Queen (on the application of TG) v London Borough of Lambeth Shelter (Intervener)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Toulson,The Master of the Rolls |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2011] EWCA Civ 526 |
| Docket Number | Case No: C1/2010/1290 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 2011 |
[2011] EWCA Civ 526
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE McCOMBE
LOWER COURT No: CO/1598/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Neuberger, Master of the Rolls
Lord Justice Wilson
and
Lord Justice Toulson
Case No: C1/2010/1290
and
Mr James Presland (instructed by Steel and Shamash, Waterloo) appeared for the Appellant.
Mr Hilton Harrop-Griffiths (instructed by its Legal Services department) appeared for the Respondent.
The Intervener made written submissions but did not appear.
Hearing dates: 12 January and 20 April 2011
A: INTRODUCTION
The appellant is a man who was born on 30 April 1989 and so has now just reached the age of 22. He appeals against an order made by Mr Justice McCombe in the Queen's Bench Division, Administrative Court, on 29 April 2010. The judge himself granted permission to appeal.
The judge's order was to dismiss the appellant's claim against the London Borough of Lambeth ("Lambeth") for judicial review of its decision dated 4 November 2009 that he was not a "former relevant child" within the meaning of s.23C(1) of the Children Act 1989 ("the Act of 1989") and thus that it did not owe to him the duties set out in the section.
The appellant's case before the judge, as before this court, was that Lambeth's decision about his status was wrong in law: he contended that on 4 November 2009 he was a "former relevant child".
Lambeth provided accommodation for the appellant between March and October 2006, namely for about seven months when he was aged 16 and 17. The accommodation was ostensibly provided by Lambeth as a local housing authority pursuant to its interim duty under s.188 of the Housing Act 1996 ("the Act of 1996"). But Lambeth concedes that "in all probability" the accommodation should have been provided by it as a children's services authority pursuant to a duty under s.20 of the Act of 1989 rather than by it as a housing authority under the Act of 1996. The appeal turns on whether, for the limited purpose which I will identify, the law therefore treats or deems the accommodation to have been provided under s.20.
Shelter obtained permission to intervene in the appeal on the basis first that it could file evidence; and second that it could make submissions, albeit only in writing. Its evidence, in the form of a witness statement by Mr Robb, its chief executive, and its written submissions, drafted by Mr Richard Gordon QC pro bono, have proved to be conspicuously helpful. My account of the facts of the present case will reveal a serious absence of co-ordination in relation to the appellant's case within Lambeth, including between its housing department and its children's services department. As I will explain, Mr Gordon's submissions have persuaded me that such absence of co-ordination was positively unlawful. Mr Robb's evidence reports the results of an enquiry by the charity's Children's Legal Services (undertaken for the purposes of its intervention in the case and with the assistance pro bono of Freshfields Bruckhaus Deringer LLP) into the existence of such procedures for co-ordination within the remaining 144 local authorities in England as would (in Shelter's submission) comply with the requirements of the law. Two-thirds of the authorities failed to respond in any way to the enquiry; and, of itself, the absence of any response on their part raises concern. The responses of the remainder suggest (says Shelter) a mixed picture of compliance and non-compliance. Irrespective of the result of this appeal, I have no doubt that, as Mr Robb argues, a substantial number of vulnerable children are still suffering from a failure of co-ordination between these two departments within a number of English local authorities. Even if it transpires that this appeal should turn on a narrow factual axis, it should serve, as Mr Robb suggests, to advertise the need for all local authorities to take urgent steps to remedy any such failure.
B: THE FACTS
At the age of six the appellant moved from the care of his father in Jamaica to that of his mother in Lambeth. His father has since died. In 2004, when aged 15, the appellant began to get into trouble with the police. He came to the attention of Lambeth's Youth Offending Service ("YOS"), known prior to 2005 as its Youth Offending Team. On 6 April 2005 he was sentenced to a supervision order for one year with an intensive supervision and surveillance programme; for the following year he was therefore subject to the close attention of Lambeth's YOS. In October 2006 he was sentenced to a Community Rehabilitation Order for one year. So Lambeth's YOS had further dealings with him between October 2006 and April 2007, when he became an adult and was transferred to the probation service.
A person "with experience of" social work in relation to children is now a necessary member of a YOS (s.39(5)(aa) of the Crime and Disorder Act 1998, as amended) and, between March 2005 and January 2007, no less than eight social workers within Lambeth's YOS had dealings with the appellant. Between December 2005 and April 2006 the social worker who principally had dealings with him was Ms Acquah. She was an officer of the YOS who, in the words of the specification applicable to her position, had "a recognised qualification in work with children or young people". Lambeth points out that although Ms Acquah happens to have been a qualified social worker, the words of s.39(5)(aa) and of the specification did not require her to be so.
In January 2006 the appellant, then aged 16, told Ms Acquah that he intended to approach the Homeless Persons Unit ("the HPU") of Lambeth's housing department for the provision to him of independent accommodation. He alleged that his mother wanted him to leave the family home but Ms Acquah did not believe him.
On 3 March 2006 Ms Acquah spoke to the appellant's mother. Ms Acquah adjudged her to be at the end of her tether. She told Ms Acquah that the appellant had been trying to force her to state in writing that she required him to leave home; that she did not particularly wish him to do so; that, since he was insistent upon doing so, he could leave; but that, if he did so, he could not return. Thereupon Ms Acquah wrote a "Homelessness and Social Vulnerability Report". In the report Ms Acquah wrote:
"I understand that the relationship between [the appellant] and his mother has broken down to the point that it is not advisable that they both live in the same household.
… communication between [the appellant] and his mother most of the time is confrontational.
… [the appellant] has now been asked to leave the family home by his mother.
… This young person is in desperate need of housing and would hope that his housing need is met as he fulfils the Child in Need criteria."
Ms Acquah furnished the report to the appellant so that he could take it to the HPU. She did not refer him to Lambeth's children's services department.
A few days later, no doubt largely by reference to Ms Acquah's report, Lambeth's housing department provided the appellant with the accommodation under s.188 of the Act of 1996. The housing department did not refer the appellant to the children's services department.
C: LAMBETH'S FAILURE TO FOLLOW GUIDANCE
In 1999 the Department of Health, the Home Office and the Department of Education issued guidance entitled "Working Together to Safeguard Children" pursuant to s.7 of the Local Authority Social Services Act 1970 ("the Act of 1970"). The guidance of 1999 was replaced by guidance under the same title issued in September 2006; indeed the latter has now been replaced by guidance under the same title issued in March 2010. So it was the guidance of 1999 which was operative in March 2006 when, by Ms Acquah, Lambeth's YOS failed to refer the appellant to its children's services department. Paragraph 3.74 of the guidance of 1999 provided as follows:
"A number of the children and young people who fall within the remit of YOTs will also be children in need, including some whose needs will include safeguarding. It is necessary, therefore, for there to be clear links, both at [Area Child Protection Committee]/YOT strategic level, as well as at child-specific operational level, between youth justice and child protection services. These links should be incorporated in each local authority's Children's Services Plan, the ACPC business plan and youth justice plan itself. At the operational level, protocols are likely to be of assistance in establishing cross-referral arrangements."
In the current guidance the equivalent paragraph, cast in somewhat different terms, is 2.147.
But, notwithstanding the absence of clear links between Lambeth's YOS and its children's services department, one is driven to conclude that Ms Acquah, who unfortunately has been distressed by these proceedings and who has retired, was personally at fault in not referring the appellant to that department. Although she worked in the YOS rather than in that department itself (i.e. the children and families division of Lambeth's Children and Young People's Service: see [25] below) she was a qualified social worker who had experience of work with children and young people. Her expressed conclusion was that the appellant fulfilled the "child in need" criteria. Such criteria are set out in s.17(10) of the Act of 1989. To a child in need a local authority owes a general duty under s.17(1) of the Act and, in further defined circumstances, a duty to accommodate under s.20(1) and (3) of the Act. The phrase "a child in need" therefore constitutes a term of art in the Act of 1989 which...
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