CoA quashes decision to terminate teenager's looked after child status

The Court of Appeal has ordered a local authority to provide support to a severely autistic teenager when he turns 18, in a ruling that clarifies the interplay between the Children Act 1989 and the Education Act 1996.

In R (RO) v East Riding of Yorkshire Council & Anor [2011] EWCA Civ 196, the teenager (RO), who also had severe attention deficit hyperactivity disorder, was living in a specialist residential school funded by his education authority.

The issue was whether 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 placement and accommodation at Horton House (the residential school), the teenager was a “looked after child” within the Children Act 1989 as well as within the SEN regime of the Education Act 1996.

If he was a “looked after child”, he would be entitled to a range of benefits on turning 18, including housing, medical care and support until he was 21 or 24 if in education. If he lacked LAC status, the benefits of that previous but expired status would not be available to him.

The case raised a question about the relationship between the Children Act and the Education Act, as well as issues about a council’s obligations and powers under s. 20 of the Children Act to accommodate children.

At the High Court, Mr Justice Cranston held that RO’s LAC status had come to an end when he went to Horton House. The judge said that the council was “providing him accommodation at the residential school, not under its social services functions but by virtue of a Statement of Special Educational Needs under the Education Act 1996”.

However, this ruling was overturned by the Court of Appeal. Giving the lead judgement, Lord Justice Rix said the council had misread the situation when it assumed that just as the provision of respite care had brought RO’s LAC status into being, so the ending of that respite care accommodation had terminated his status.

The judge said: “The respite care was merely a symptomatic consequence of RO’s and his parents’ needs and difficulties: those same needs and difficulties led ineluctably to the further symptomatic consequence of the provision of accommodation at the Horton House placement. Thus the ending of the former could not lead to the termination of LAC status.

“In these circumstances, where RO's needs, social as well as educational, had driven the placement, as had been appreciated by RO's LAC review team long before the education department had fallen into line, it is impossible in my judgment to regard the Education Act's SEN regime as supplanting rather than supporting the Children Act's LAC regime. Of course it is possible to regard education as extending more broadly, as it is possible to regard care as extending more broadly. However, ultimately it is the Children Act which is intended to provide the holistic support for children in need who have, because of the provision of accommodation to them, come within the regime and status of being looked after children.”

Lord Justice Rix added: “Although the council regarded RO's looked after status as turning entirely on whether RO continued to be accommodated in weekend respite foster placements, and his future accommodation as being simply provided for under the Education Act, this was, on the acknowledged facts, an erroneous, impossible, irrational and unlawful view to take.

“They do not appear, at the end of the day, to have asked themselves what their continuing obligations under the Children Act might have been but simply to have assumed that respite care was all that concerned them under that Act, and that the rest was education and something different.”

In a statement the Children’s Legal Centre, which acted as the family’s solicitors, said: “The judgement clarifies the law and stops local authorities from using a technicality to refuse to provide support for some disabled children once they turn 18.”

The Centre’s Ed Duff, who worked on the case, said: “Looked after status is a really important and special status which means local authorities can’t just wash their hands of the young person once they turn 18. Unfortunately, some authorities don’t like these laws and seek to avoid them as they involve time and money.”

He added: “This vulnerable child now has the safeguards which the Children Act 1989 says he should always have had. It has taken three years, two High Court dismissals and two Court of Appeal applications for the family to put this right. This is a tremendous relief to his family, and we are delighted to have helped them secure their son’s care once he turns 18.”

Philip Hoult