02 July, 2010
Local authorities are obliged under the Children Act 1989 to support and protect vulnerable children and their families. These duties include providing accommodation for them to reside in.
When such children find alternative means of housing (for example through residential schools), one issue that arises is what happens to the child's status as being 'looked after'. The recent case of R (on the application of O) v East Riding of Yorkshire County Council  EWHC 489 considered this matter and the High Court's judgment should be noted by other relevant local authorities.
O was a teenage boy who had autism and attention deficit hyperactivity disorder. His behaviour was said to be extremely challenging and meant that he was not performing as well as possible at school. A statement of special educational needs was therefore drafted. O's parents felt that O was in need of a residential school and objected to the statement's recommendation that he attended a day school instead. At a later hearing, the local authority was ordered to accommodate O on a full time basis. It had been agreed by all parties that O could not return home due to his parents' inability to meet his needs. Three experts had also stated that O needed full time residential accommodation.
O was then allocated such a placement and consequently no longer needed the respite accommodation which had been provided prior to this. The Council determined that this meant that O was no longer a 'looked after' child for the purposes of the 1989 Act as his social care and educational needs would be met through the residential school place which had been allocated to him.
O applied for judicial review of this decision to end his classification as a 'looked after' child and argued that he still fell within the definition and that if this was not the case, the Council's decision to terminate his status was wrong in a public law context. It was also said that the decision would have significance for other children who were 'looked after' by local authorities.
The claim by O for judicial review was dismissed. It was held by the High Court that because O had enrolled at the residential school and therefore no longer wanted or received accommodation provided by the Council, he was no longer a 'looked after' child. This was said to be consistent with the statutory definition provided by the 1989 Act of a 'looked after' child.
It was also said that O did not require accommodation through not having anywhere to live and that his parents had wanted him to attend the residential school. It could not be argued therefore that the Council was attempting to evade its legal obligations. Because the Council had approached the situation with "anxious scrutiny", it had not erred in law by considering O did not require accommodation provided by them in the future.
This case has provided further clarification to when a local authority's duty to house 'looked after' children will be in existence and when it will be deemed to have extinguished. As such, it is advised that all local authorities are fully aware of this aspect of providing accommodation to individuals and changes that are made through case law in the future.