High Court allows JR challenge over council’s refusal to provide accommodation for "child in need"

The High Court has allowed a judicial review challenge brought by a young man over Surrey County Council (SCC)’s refusal to comply with duties allegedly owed to him under the Children Act 1989 when he was 17 years old.

In a rolled-up hearing, Mr Justice Calver granted the claimant permission to bring the claim and concluded that by 18 September 2019, the council owed the claimant a duty under section 20 CA89 to provide accommodation.

Outlining the background to the case in BC, R (On the Application Of) v Surrey County Council [2023] EWHC 3209, the judge said the claimant, BC, suffered from a benign brain tumour at age 9 which, following its removal, allegedly left him with “long-standing” health problems, including anxiety and depression.

BC's family life was difficult, and his parents struggled to cope with their children as they grew older, with all of them living together in a caravan, said the judge.

In 2017, BC came to the attention of SCC's social services because of reports that he was being bullied.

During the course of enquiries, BC was noted to have Special Educational Needs in respect of his social, emotional, and mental health.

On 28 November 2017, BC’s support worker reported that he was not attending school, had disengaged from support services, and had been reported as using cannabis, said the judge.

A ‘Team Around the Family’ meeting took place on 15 January 2018. It noted that social services were worried about relations between BC and his mother breaking down and his being asked to leave the home and not return.

On 18 April 2018, the relationship between BC and his mother was stated not to be good. “Despite this, in September 2018 SCC's social services department decided to close BC's case”, the judge noted.

In August 2019, an anonymous safeguarding referral was made to SCC, reporting that BC was sleeping in the family caravan but all of his belongings were being left in a van next to the family caravan so he had to "live out of a van", was "not being given food" and had "to beg for food."

On 13 September 2019, BC (aged 17) approached the local housing authority, Runnymede Borough Council, presenting as homeless.

The housing officer emailed SCC that day with an “urgent referral” for social services intervention, which noted that BC had not been accommodated at home for 3 weeks, and had been living with his friend [K] and his Mum.

The referral added: “[K's] mum has now said she doesn't want him to stay any longer and is unable to stay tonight.”

Mr Justice Calver said: “It follows that I reject the submission of Catherine Rowlands, who appeared for SCC, that SCC was being asked to make a "snap judgment" which it was unable to make, and instead it was entitled to take time to determine what enquiries were necessary to enable it to decide what action to take, before determining whether BC was a child in need of accommodation under section 20(1) CA89”.

He noted that it was “clearly the case” that, in accordance with paragraph 3.4 of the Guidance, suitable emergency accommodation for BC under section 20 CA89 was required, whilst his full needs were further assessed.

“Despite this, SCC inexplicably failed to provide BC with any accommodation and indeed failed to take any steps to assess his case at all until 18 September 2019, being 5 days later, which is highly regrettable”, said the judge.

On 20 September 2019, SCC informed BC by text of the decision to refer him for education support only. BC's mother continued to tell SCC that he could not return home.

On 26 October 2019, Surrey police contacted SCC to inform them that BC had engaged in anti-social behaviour with a group of youths and that he told them he was "currently sofa surfing".

Mr Justice Calver said: “Despite this background, it is extraordinary that on 28 October 2019 SCC nonetheless closed BC's case.”

At the time when BC was turning 18, K's mother told him to leave. BC's friendship with K had broken down.

Outlining the grounds of challenge and relief sought, the judge noted that the parties formulated the issues to be determined as follows:

(1) Did SCC owe BC a duty under section 20 CA89 to provide him with accommodation?
(2) Were the arrangements that SCC made for BC to stay with his friend's mother arrangements made by SCC pursuant to section 20 CA89?
(3) Does SCC owe BC leaving care duties?
(4) Should SCC have exercised its discretion to treat BC as being owed leaving care duties as if he had been looked after? This issue only arises if the Court answers issues (2) and (3) in the negative.
(5) Should permission to bring a claim for judicial review be refused by reason of delay in bringing the claim?

Discussing question 1, the judge noted that the parties agreed that BC was a child at the material time and was within SCC's area, however, they disagreed as to whether he was a child in need.

On this, he said: “I consider that it is apparent from the contemporaneous documentary record set out above that BC was plainly a child in need by 18 September 2019 at the latest. His relationship with his parents had deteriorated over a period of time, until by this date he was excluded from home (his sister now occupied his old room), with his father having told him to move out, and he was temporarily sleeping at K's mother's house.

“Whether he slept on the sofa or shared a bedroom with K is unimportant; on any view that unstable accommodation was not suitable for a 17-year-old child.”

The next issue he considered was whether BC appeared to the local authority to require accommodation.

Ms Rowlands for the council argued that K’s mother’s offer to bring the grandparents' caravan to the site or the arrangement with K's mother meant that he did not reasonably appear to SCC to require accommodation.

The judge did not accept this submission. He said: “The grandparents' caravan was obviously not suitable accommodation and SCC could not reasonably have concluded that it was as at 18 September (or thereafter). Indeed, SCC did not even bother to inspect it in order to assess its suitability.”

“Likewise, the suggestion that the accommodation offered by K's mother was suitable for BC is unsustainable by reason of its nature and precarious duration”, he added.

On question 1, he concluded that by 18 September 2019, SCC did owe BC a duty under section 20 CA89 to provide him with accommodation.

The judge then turned to the question of “Were the arrangements that SCC made, or is taken to have made, for BC to stay with K's mother pending a mediated return to his family, pursuant to section 20 CA89?”

He said: “By 20 September SCC had not yet played any role in the accommodation of BC at K's mother's house. […] However, after 20 September 2019 and by 17 October 2019, the position had materially changed. By that date, SCC had indeed played a central or significant role in ensuring that BC had accommodation (at K's mother's house) throughout the remainder of his childhood and I accept Ms Luh's submissions in this respect”.

He added: “The central role played by SCC in BC's accommodation arrangements is clear from these records [provided by Ms Luh for the council] from the fact that when BC was discharged on 17 October 2019, it was SCC's TYS support worker, Jayne Stubbs, who collected BC from hospital, and took him back to K's house after confirming with K's mother that she would continue to accommodate him.”

The judge rejected Ms Rowlands' submission that the council had “no hand” in arranging the accommodation with BC's friend.

He concluded that by 17 October 2019 SCC had taken a “major role” in ensuring that BC was accommodated for the foreseeable future at K's mother's house.

He said: “It follows that BC was provided with accommodation by SCC under section 22(1)(b) CA89 on and after 17 October 2019”.

On question 3, “Does SCC owe BC leaving care duties?”, the judge noted that the parties’ “inadequate” time estimate for the hearing of the claim led to little or no argument being advanced in respect of the third question.

He said: “Ms Luh [on behalf of BC] dealt with it very shortly in her skeleton argument at paragraphs 62-64 but accepted, in answer to a question from the court, that paragraph 64 incorrectly states the applicable statutory provisions and instead submitted that, if the section 20 duty was performed by 17 October 2019 (as I have found), then BC would have been accommodated for 11 weeks before his 18th birthday and would have acquired "qualifying young person" status under section 24 CA89.”

Ms Rowlands for the council did not take issue with the submission and it was accepted by the judge.

On question 4, “Should SCC have exercised its discretion to treat BC as being owed leaving care duties as if he had been looked after?” the judge noted that since he answered questions 2 and 3 in favour of BC, the issue does not arise.

On question 5, “Should permission to bring a claim for judicial review be refused by reason of delay in bringing the claim?”, Ms Rowlands observed that the events upon which BC relied took place in the period up to September 2019.

She submitted that the claim should therefore have been brought by the end of 2019, however, it was not brought until August 2022.

In response, Ms Luh submitted that “(a) SCC's failures are an ongoing breach and (b) in any event, there is a good reason for any delay”.

Discussing question 5, Mr Justice Calver said: “SCC acted unlawfully in failing to treat BC as a looked after child, and that is a continuing state of affairs and a continuing breach of its obligations under section 20 in respect of which it owes BC ongoing duties under the CA89, now by reason of his being a qualifying young person.”

He added: “I accept BC's explanation in his second witness statement concerning why he was unable to seek legal advice until 2021. At the time of events in 2019, he did not know that SCC had acted unlawfully or that he could challenge the way he had been treated.”

He concluded: “No prejudice has been caused to SCC as a result of any delay. No retrospective relief, financial or otherwise, is sought. In contrast, BC would be significantly prejudiced if delay is a bar to his claim, since as a qualifying young person, he is still owed a number of duties by SCC in order to assist him with his transition into adulthood and independence”.

The judge granted BC permission to bring the claim, allowing it to the extent set out in the judgment.

He concluded with the following declarations:

(1) By 18 September 2019 SCC owed BC a duty under section 20 CA89 to provide him with accommodation; and
(2) The arrangements that SCC made for BC to stay with his friend's mother on and after 17 October 2019 were arrangements made by SCC pursuant to section 20 CA89; and
(3) BC has thereby acquired the status of "a person qualifying for advice and assistance" under section 24 CA89.

Lottie Winson