Former relevant children: recent caselaw

Leavig care iStock 000000783579XSmall 146x219Jonathan Auburn and Ben Tankel analyse some important recent cases concerning former looked after children and the services that local authorities are required to provide.

Former relevant children are those over the age of 18 who, as children, were children in need looked after by their local authority under s.20 of the Children Act 1989. It is recognised that as a group they generally have poorer life chances and, as such, local authorities are required by statute to provide them with a range of continuing services after they reach the age of 18.

In the three cases below, we consider:

  • the circumstances in which a child who ought to have been treated as a child in need, but was not, can nevertheless be treated as a former relevant child; and
  • whether local authorities are required to pay the university tuition fees of former relevant children.

This second point has become all the more significant since the advent of top-up fees, as in each case tens of thousands of pounds may be at stake.

R (GE) v Bedford BC [2013] EWHC 2186 (Admin)

The claimant was an immigrant who was age-assessed as being an adult, so she did not receive services under the Children Act 1989. She accepted that by the time of the hearing she had reached the age of 18 and so at most could be treated as a former relevant child.

The claimant challenged her age assessment in judicial review proceedings in which she sought to establish that (i) she had in fact been a child at the time of the age assessments and thus entitled to services under the Children Act 1989; and that (ii) the duties owed to a former relevant child are owed not only to a person who in fact received services during her minority, but also to someone who ought to have received such services.

The judge held that both the scheme and the wording of the Children Act 1989 demonstrated that a person was not a former relevant child unless they had actually received services from their local authority. It was thus unnecessary to review the claimant’s age assessment, as nothing turned on it – either way the claimant had received no services and could not qualify as a former relevant child.

In order to sustain this overall conclusion, the court also required to confront a line of authority in which it has been held that an LA should be deemed to have provided support under s.20 CA 1989 where there is a direct causal nexus between the LA’s conduct and any accommodation actually received, e.g. under s.4 of NASS. The court was constrained to gloss that line of authority in a way which is neither entirely convincing nor easy to understand.


It is now abundantly clear that, as far as the courts are concerned, one must have received services as a child in need in order to qualify as a former relevant child. A very interesting side feature of this case, however, is the gloss it places on the question of the circumstances in which a causal nexus between the action of a local authority and accommodation provided by SSHD will be made out. Following the earlier line of authority, it might have been thought that the nexus was made out whenever a local authority wrongly assessed a child as an adult and referred him to UKBA to be accommodated by them. GE raises the strong possibility that that approach is wrong.

Local Government Ombudsman complaint no. 12 001 464 against Kent CC

The complainant was an 18 year old who had sofa-surfed since the age of 16. He had some contact with social services, but they never carried out an assessment of his needs. Rather, they regarded his sole need as housing and referred him to the housing authority. A series of housing placements broke down as the complainant was unable to juggle budgeting, housing, college, and independent living.

Matters came to a head when he turned 18: not having been a child in need he was not regarded as having a priority need for housing and therefore could not be offered permanent accommodation. The complainant complained to the LGO.

The LGO held that the complainant had clearly been a child in need. The LA ought to have treated him as such, and put in place the range of support that is associated with that status. He had had welfare and health needs that went over and above his housing need and he would have benefited from the support. He ought to have been accommodated under s.20 CA 1989, and had he child. The LGO recommended the LA pay £3,000 for the historic loss of welfare benefits, and that the complainant be treated as a leaving care child with the associated services.


This case stands in stark contrast with the court’s strict approach in GE. The LA was ordered to treat an individual as a leaving care child even though (albeit wrongly) he had never been assessed as being a child in need. Admittedly, a court might have found that there was a “causal nexus” in the present case between the LA’s conduct and the complainant’s accommodation, but the LGO did not pursue this line of thought at all. Rather, the LGO ordered that the complainant be treated as a leaving care child simply because of the injustice he had suffered.

It is also to be noted that the LGO was able to delve back into decisions made many more than three months previously. This is a clear demonstration of the increased flexibility of the LGO over the Administrative Court.

R (Kebede) v Newcastle CC [2013] EWCA 960 Civ

The claimants were Ethiopian nationals with discretionary leave to remain until November 2014. Their immigration status meant not only that they were ineligible for central government funding for their tuition fees, but also that their tuition fees would be higher than that of UK citizens.

Section 24B(2) of the Children Act 1989 requires a local authority to make a grant to a former relevant child “to enable him to meet expenses connected with his education or training”. The claimants claimed that this included funding for a place at university.

The local authority argued that it was entitled to take its resources into account in deciding whether to make such a grant and that, given its limited resources, it would not make such a grant.

The claimants were successful at first instance; the local authority appealed.

The Court of Appeal upheld the judgment below and found that as a matter of statutory construction s.24B(2) created a duty, not a power, to meet expenses connected with a former relevant child’s education or training and that, as such, the LA’s resources were irrelevant.

Of perhaps greater interest are the Court’s comments on the assessment of whether a child has an educational need to attend university.

First, the Court rejected the claimants’ submission that their immigration status was not a relevant consideration. Their leave to remain would expire one year into their respective courses and it was manifestly relevant to ask whether they had an educational need for a course they could not complete.

Second, the Court observed that what is an educational need must be assessed in the educational context. Education was not usually needed in order to survive, but it may well be ‘needed’ to obtain a necessary qualification for the work to which a person is suited.


Although the claimants in this case successfully argued that the local authority had a duty rather than a power to meet the expenses of their education or training, the Court of Appeal has considerably softened the blow by giving LAs considerable freedom in assessing whether former relevant children have a particular educational need such as a need for a university place. That freedom is limited, however: the educational need must be assessed in the educational context. Some former relevant children will have a need for expensive university tuition for their own educational development, even if they would survive without it. Local authorities should therefore carry out individualised assessments of the educational needs of each former relevant child.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street.

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