High Court judge rejects claim council operated unlawful policy of coercing children into making agreements against section 20 accommodation

April 14, 2023

The High Court has rejected a judicial review claim that an Essex County Council policy for accommodating children aged 16 or 17 was unlawful.

In TT v Essex County Council [2023] EWHC 826 (Admin), Mr Justice Mostyn heard a claim that, among other grounds, the local authority's refusal to accept that the claimant was an "eligible child" pursuant to Para 19B(2) of Schedule 2 to the Children Act 1989 was unlawful.

The claimant also challenged what she said was the council’s unlawful policy pursuant to which accommodation provided under the Essex Young People's Partnership ("EYPP") was asserted not to be provided under s.20 of the Children Act 1989.

At least 75 children are currently being accommodated under the policy, which the claimant argued is driven by the illegitimate aim of saving ratepayers' money.

The background to the case was that the claimant had a troubled childhood and, in 2019, was made the subject of a child-in-need plan. In June 2021, her mother referred her to the defendant's social services.

Following a meeting with a social worker of the defendant, the claimant was accommodated in what has been described as an EYPP "crash pad" in Colchester.

On 19 November 2021 the claimant moved to the YMCA, also in Colchester, where she remains.

The judicial review brought by the claimant challenged the council on the following:

Its refusal to accept that the claimant is an "eligible child" pursuant to Para 19B(2) of Schedule 2 to the Children Act 1989 ("the Act");
Its unlawful failure to comply with the duties owed to the claimant as an eligible child;
In the alternative, its refusal to accept that the claimant is a "relevant child" under s23A(2) of the Act and its unlawful failure to comply with the duties owed to her as such; and
Its unlawful policy pursuant to which accommodation provided under the Essex Young People's Partnership ("EYPP") is held (sic, semble asserted) not to be provided under s.20 of the Children Act 1989.

Mr Justice Mostyn dismissed the claimant's arguments on all four grounds, finding that:

The council correctly declined to recognise that the claimant was an "eligible child" pursuant to Para 19B(2) of Schedule 2 to the Children Act 1989;
The council did not, therefore, unlawfully fail to comply with the duties owed to the claimant as an eligible child;
The council correctly declined to recognise that the claimant was a "relevant child" under s23A(2) of the Act and therefore did not unlawfully fail to comply with the duties owed to her as such; and
He was not satisfied, and thus did not find, that the council at the material time operated an unlawful policy pursuant to which accommodation provided under the EYPP was asserted not to be provided under s.20 of the Children Act 1989.

The judge said: "The claimant has appointed herself the champion of a large number of 16- and 17-year-olds living in non-section 20 accommodation in Essex. The claimant asks me to find that the defendant has been practising an unlawful policy of coercing these children into making agreements against section 20 accommodation."

He concluded: "I do not find there was any such 'policy' although based on my study of the other cases (the paperwork of which has been made available to this court), and of the evidence given by the claimant's witnesses, I do conclude that sometimes the choices have not been presented as neutrally and impartially as they should have been.

"That is as far as I am prepared to go in this judgment,” he added, noting that he was not prepared on the written evidence which had not been tested by cross-examination, “to make the very serious findings of unlawful conduct as sought”.

He continued: “There are myriad issues of fact surrounding the alleged unlawful conduct of the defendant which it is neither practical nor just for me to determine. Nor is it necessary for me to do so in my judgment on this academic claim. In such a judgment it will rarely, if ever, be necessary to do more than to identify past problems and to spell out the remedial standards for the future, which is what I have done.”

Mr Justice Mostyn agreed to hear the claim despite making a preliminary ruling that it was academic, Essex having agreed it would treat the claimant exactly as if she had the status of the claimant as a former relevant child. This was because of the 75 other children aged 16 or 17 being accommodated under the regime.

Adam Carey