Council successfully defends decision not to treat claimant as ‘former relevant child’

Essex County Council was not obliged to treat applicant TW as a ‘former relevant child’, the High Court has found.

Upper Tribunal Judge Ward, sitting as a judge of the High Court, heard TW was born in 2004 and in 2021 Essex completed an assessment of his needs concluding he was not a child in need and that he should be supported to access housing through the Essex Young People's Partnership and receive support through the council’s Family Solutions service.

Essex said the accommodation secured this way was not provided pursuant to its duty in section 20(1) of the Children Act 1989 and it had considered the exercise of its discretion to treat TW as if he were a former relevant child but declined to do so.

TW’s challenge was to Essex’s decision that he was not a former relevant child and to its policy that accommodation provided under the EYPP is stipulated as unavailable under section 20 of the Children’s Act 1989 with the result that children who are accommodated via this route are held to have ‘rejected' section 20.

Other grounds concerned whether Essex was entitled to make this stipulation and if its decision not to exercise its discretion to treat the TW as a former relevant child was lawful.

The court heard TW had been ‘sofa surfing’ with his brother and father, neither of whom had adequate room to accommodate him.

TW argued that it was therefore irrational for Essex not to accept him, while the county said he did not meet the required criteria.

Judge Ward said in his judgment he could not accept that by including a discussion of the implications of section 20 in an explanation given to TW, Essex had conceded he was eligible for section 20 accommodation.

“Both parties knew that he had been assessed as not being so eligible,” the judge said.

“The explanation has the ring of having been delivered from a template, not unreasonably so as a starting point, given the complexity of the information to be conveyed, but inadequately modified for the circumstances of this particular case. There may justifiably be criticism of the presentation of the information for that (and other) reasons, but it does not imply a concession that the claimant was eligible for section 20 accommodation.”

He said the bar for a rationality challenge was high and the challenge did not clear it.

“In my judgment, the resourceful and ably-presented arguments on behalf of the claimant are fundamentally inviting the court to substitute a different view of the severity of the claimant's circumstances from that reached on behalf of the defendant. That is not the court's role in these proceedings.”

Judge Ward accepted that TW did not want the status of a looked after child because of the restrictions involved with being ‘in care’.

He said National Guidance envisaged some 16 and 17 year olds may refuse accommodation under section 20 and a young person's decision must be “properly informed, and has been reached after careful consideration of all the relevant information”.

But for TW the explanation was confusing, and not given in a ‘young person-friendly’ format, nor in writing.

The judge said: “Even if, with the benefit of written information provided at the right time and in a young person-friendly format, the claimant were to have decided that he would prefer section 20 accommodation, he could not have had it.

“The lack of materiality means that questions of the potential illegality of the failure to comply with the National Guidance in these respects or of other inadequacy in the explanation given fall away.”

Judge Ward said Essex was entitled to stipulate that accommodation provided under the EYPP was not available under section 20 of the 1989 Act and said the absence of specific reference to the Children Act 2004 and the Localism Act 2011 was not fatal to its case. It followed from the rejection of the first three grounds that the fourth also fell.

Judge Ward concluded; “Given my decision on the other parts of the case, [Essex] was entitled to conclude that it was not obliged to treat the claimant as if a former relevant child.”

Mark Smulian