Division, His Honour Judge Clive
QC, sitting as a judge of the
High Court, 9 July 2014)
Funding – Placement
with family – Residence allowance
The full judgment is available below.
The 16-year-old girl
had lived with her maternal aunt and uncle for from 2004 under an agreement
between the mother and the local authority. A residence order was granted
pursuant to which the aunt and uncle received a residence allowance but the
girl was not treated as a looked after child.
In 2008 the aunt and
uncle could no longer care for the girl but a paternal aunt came forward to
care for her. The local authority proposed that the girl could stay with the
paternal aunt for respite care and the maternal aunt and uncle would pass all
money in respect of the girl to the paternal aunt. The local authority agreed
to assess her request to care for the girl permanently taking into her request
for financial support. No assessment was undertaken.
The girl moved to live
with the paternal aunt and she applied for a fostering allowance. The local
authority decided that instead she should apply for a residence order so that
she could claim benefits for the girl and then the local authority would make
up the difference to the level of a residence allowance. She thereafter
received £122 per week under s 17 of the Children Act 1989. The girl applied
for a declaration that from when she went to live with the paternal aunt she
was a looked after child.
The application was
dismissed. At the material time the girl was not a child who appeared to the
local authority to require accommodation. From an early stage the local
authority stated its view that this was a private arrangement and the records
reflected that position.
The local authority had not at any point sought to
side step its responsibilities but it could not pay a fostering allowance.
After struggling to work out how a financial allowance could be paid it had
then duly paid the equivalent of a residence allowance to support the
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of
Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
Neutral Citation Number:  EWHC 2309 (Admin)
Case No: CO/9096/2013
N THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Court House
Date: 9th July 2014
His Honour Judge Clive Heaton QC
Sitting as a Judge of the High Court in Leeds
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O (A Child) by her Litigation Friend
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Doncaster Metropolitan Borough Council
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The Claimant was unrepresented
Joseph O’Brien (instructed by The Borough Solicitor) for the Defendant
Hearing date: 1st July 2014
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Judge Heaton QC :
 This is a substantive hearing in a claim for Judicial Review. The Claimant is C, a young woman who will be 17 years old later this month. She has been represented by her litigation friend and carer TD but has been otherwise unrepresented before me. The respondent to the application is Doncaster Metropolitan Borough Council, represented before me by Mr O’Brien.
 The claim that is brought on behalf of C is for a Declaration that from the time she went to live with TD in 2008 C was a Looked After Child. C seeks damages in respect of unpaid financial allowances as a consequence of that declaration if made, and also the provision of services for C. The Defendant resists the claim. Its case is that C came to live with TD in 2008 as a consequence of a private family arrangement. It says that in consequence C was not a Looked after Child, and that it has met its other duties to her.
 Sadly C had a very poor start in life. Her mother was a substance misuser. In consequence C’s care by her mother was inconsistent and often neglectful. She lived in a chaotic home environment. Her needs were not met.
 In February 2004 C’s mother agreed with the Defendant’s social care department that the situation could not continue. There was an agreement that C would go to live with a maternal Aunt and uncle AB and CD.C did go to live there and seemed to settle reasonably well. On the 19th June 2006 AB and CD obtained a Residence Order in respect of C. AB and CD had been receiving financial support from the Defendant to his point, and following the making of the Residence Order that support was converted into a Residence Allowance. On the 27th June 2006 social care closed its file in respect of C. There matters lay so far as is relevant for this claim until the beginning of 2008.
 It is not in issue in this case that following the making of the Residence Order in June 2006 C would not have been a Looked after Child, and so June 2006 provides a convenient starting point for my consideration of the issues here.
 TD tells me that on 7th January 2008 AB called social care and informed them that she and CD were in difficulty in sustaining C’s placement with them. TD tells me that her understanding of the situation was that C was effectively being evicted by AB and had nowhere to go. As she put it “her bags were packed”. TD says that the situation was not that she put herself forward as a carer for C, but that she said to AB that she did not wish to be forgotten when social care were considering where C might be placed following her departure from the home of AB.
 D says that there was no agreement between AB and herself that C should come and live with her. Indeed TD tells me that AB was saying that it was not up to her to sort something out but that it was up to social care. AB was reluctant to let C go to live with TD (on TD’s account) as AB was concerned of the effect of that upon the other child of the family TD was caring for.
 On the 10th January 2008 a social worker went to see AB at her home. The record says that AB and CD can no longer care for C. AB says to the social worker as it is recorded that there is a paternal aunt who has come forward as a carer for C, and that C has regular contact with her. This is of course TD. It is recorded that TD is already looking after C’s niece. It is to be noted that what AB appears to have told social care goes further than TD tells me she had intended to go when she had spoken to AB earlier.
 It is clear that the social worker understood that TD had it in mind that she might take C on long term as there is an early record of a conversation with her legal team where the possibility of a Residence Order to TD is being discussed.
 The next record of interaction between social care and the family is the following day. The social worker firstly speaks to TD on the telephone on the 11th January. The issue of whether this is to be permanent arrangement is discussed and TD says that she is hoping that AB will decide to have C back after a while, but that TD is prepared to have C on a long term basis if necessary.
 Following that call the social worker made a home visit to AB on the 14th January 2008. AB told the social worker that C knew that she was to move to the home of TD and was happy about the plan. There is a note that the social worker raised with AB the issue of finance. It is recorded that the social worker told AB that TD had said that she expected to receive a Residence Allowance for C. AB told the social worker that she got a Residence Allowance for C. The social worker said that she had not been aware of that and would need to look into it.
 The social worker then went on to see TD at home that day. There is again a record of that meeting. It is recorded that TD explained that she was in receipt of a Residence Allowance for the other child of the family living with her and she would expect the same for C. The note says that the social worker said she was not aware of this.
 TD’s account of these events is not dissimilar from the notes but differs in emphasis. She tells me that she was saying to social care that she could not take C without a financial allowance as she could not afford to do so. Commonly family members in this situation are naïve as to the workings of social care but TD tells me she was not. She had been a foster parent in the past and had been around this particular block once before in respect of the child of the family now living with her. So she knew what to ask she says. TD tells me that now she does not recall whether it was put to the social worker as to a Fostering Allowance or a Residence Allowance.
 On the 16th January 2008 the social worker spoke to her legal section and the relevant team manager. The manager proposed that C move to live with TD as a means of respite in the first instance to see whether the arrangement was to be permanent. The team would need to go through “fostering procedures” before any payments could be made to TD. The manager suggested that the Residence Allowance paid to AB continue (presumably on the basis that this was a respite arrangement on this plan) and that AB then hand the allowance over to TD to cover the period until assessments had been done.
 That day social care wrote to TD. That letter is of some significance. It says in its material parts:
(i) “…following your offer to provide care for [C] I would like to confirm the following”
(ii) “You have put yourselves forward as long term or permanent carers for C”
(iii) “You have requested financial support from [social care]”
(iv) “[social care is] unable to offer financial support to you at this time and further assessments are needed to indentify whether or not this is an option”
(v) “As an interim measure it is proposed that C comes to you for respite care and [AB and CD] will continue to claim all monies in respect of [C] and pass this on to you whilst the period of respite care is ongoing”
(vi) “[Social care] will commence the appropriate assessment in respect or your request to become the permanent carer for [C], this assessment to take account of your request for financial support”
 TD told me that she thought that the assessments which were to be undertaken were in respect of fostering, but cannot now recall what she was told which caused her to come to that view. In any event no assessment of any sort was undertaken in the subsequent months.
 As things worked out, TD tells me, the plan for the transfer of funds from AB to herself did not work out either. On the first occasion that AB went to get the money from the bank she found that social care had stopped the Residence Allowance to her. That situation is reflected in a note of the 15th February 2008. That records that TD was on the telephone to a new social worker, the case having been transferred. It is said here that TD is telling the new social worker that AB’s Residence Allowance for C has been stopped.
 It is to be noted that the social worker records that she told TD that she did not qualify for “this allowance”. That accords with what TD told me during the course of the hearing, that social care were saying to her at this time that she did not qualify as this was a private arrangement (although she was not sure whether it was said that this was a family fostering arrangement or a private fostering arrangement).
 C went to live with TD and her husband on the 1st February 2008
 On the 20th February 2008 there is a further telephone conversation between the social worker and TD. It is clear that TD has a range of concerns about her position in respect of C. Finance is described as “a major issue”, which again entirely consistent with TD’s account of events at this time.
 On the 26th March 2008 there is a record of the social worker visiting TD to complete “Reg 38” forms. Doing the best he could Mr O’Brien told me that these may have been forms in relation to an application for a Fostering Allowance. He is likely to be right about that in my judgment because TD told me that at around this time she did complete application forms for a Fostering Allowance for C. The social worker is recorded as saying to TD that the Residence Allowance paid to AB was discretionary. TD according to the note was annoyed at the situation she was in. Finally the note records that TD was paid £40 in s17 monies.
 On the 9th April 2008 the social worker had a supervision session with her manager. This was one of the cases discussed. There is within the note of the discussion an indication that the “DAS worker” had told TD that she would receive “Residence Order allowance” (implicitly from social care). The social worker is to complete the “Reg 38 forms”. It is recorded that TD continues to receive £20 per week in s17 monies.
 On the 28th April 2008 there is a discussion recorded between staff in social care as to the funding of the placement. It is decided that, rather than going down the route of a Fostering Allowance and C “becoming” a Looked After Child, the preferred route is for TD to claim what benefits she can for C and then social care will make up the difference to the level of a Residence Allowance.
 That such a conversation took place is again entirely consistent with TD’s account. She told me that social care would not process her Fostering Allowance forms and told her told apply for a Residence Order for C. She also told me that by May 2008 she was receiving a consistent payment of £122 per week s17 monies that sum calculated in the way suggested in the meeting of the 28th April.
 In fact TD did not claim the Child Benefit for C as she did not want to be formally “responsible” for her as TD explained it to me. In the same way TD told me that initially she refused to sign forms for school trips and the like. However, social care in her eyes did nothing about it and so, as it upset C having this difficulty, she started to sign.
 TD told me that she did not think now that she would have asked for a Residence Allowance for C. She says now that this was not a private arrangement for the care of C but that social care were instrumental in the arrangement.
 In a supervision of the 24th June 2008 it is recorded that TD has asked to become a foster carer but it is said that “this is not an option”.
 On the 4th August 2008 there is an internal email within social care (A37). That message inter alia confirms that the amount being paid by social care in s17 monies to TD is the same as that which was being paid to AB under a Residence Allowance. It is clear that within social care there is a desire to move the payments off the s17 budget but no real answer to the question of how an allowance is to be paid.
 By the 18th August 2008 finance was still a problem. It is clear from the notes that by this time the issue exercising social care was that AB and CD had a Residence Order and so could be paid a Residence Allowance, but did not have the child living with her, whereas TD did not have such an order and so could not be paid Residence Allowance but had care of the child. Social care’s solutions to the problem were either to pay the allowance to AB and for her to pass it over (which ultimately AB would not cooperate with) or for the Residence Order for C to AB and CD to be discharged and TD to obtain such an order.
 On the 14th November 2008 there is a record of a social work visit to TD. In discussions with the social worker TD was unsure whether she should apply for a Residence Order for C on perfectly proper welfare, as opposed to financial, grounds. On the 5th December 2008 there is a further record of TD telling social care she had decided not to apply for a Residence Order for C on welfare grounds. This history accords with what TD told me, that she was telling social care that she did not want to be “responsible” for C.
 As the records continue through into 2009 it is self evident that TD did not find C easy to care for and there were difficult welfare issues for TD to deal with. By the latter part of 2009 it is clear both from the notes and TD’s account that the placement of C with them was breaking down. TD was unsure whether she could continue to care for C. There was no other family member C could realistically go to.
 In the face of that position social care offered TD two options:(i) Foster care for C either in house or through an agency, or
(ii) C attending a boarding school through the “Pathways” scheme and spending the holidays either with TD or foster carers.
 It is clear from an email of the 15th January 2010 that social care knew that if it could not come up with a solution to the family's problems C was likely to come into care.
 TD told me that the offer for C to go to boarding school was too good to turn down. Therefore she agreed that C should go to such a school and that she should come back to live with her in the holidays. There is a note to that effect of the 3rd December 2009. TD is very frank and says that she agreed that there would be no financial allowance of any sort paid for these periods. She says she agreed that arrangement as she did not want C to miss this opportunity.
 And so it was that C went off to attend a well known and respected private girls’ boarding school. All the notes suggest that she has done well there and applied her self to her education. She is clearly liked by staff and her peers. At one point it is recorded by social care that C is the only Doncaster child for whom the Pathways plan as been a success. C has proved herself by all of that a credit to herself and TD. That does not mean sadly that all her problems are behind her. TD can still find caring for C testing at times in the holidays.
 In recent times there have been issues as to whether C should stay at her present school.
 Both parties agree that the facts are crucial here. Almost all of what TD had to say to me was in respect of fact, and Mr O’Brien sought to put his case as to fact into the statutory context.
 I have summarised the argument of the Claimant as I have described the factual background above. Put shortly the Claimant says that having regard to the factual circumstances C was a Looked After Child from the time of placement with TD. TD so argues on the basis that, at the time she left the home of AB, C was a child in need of accommodation, and it was social care who stepped in and made the arrangements for C to go to live with TD.
 Mr O’Brien argues that on looking at records as a whole it is self evident that the arrangement for C to go to live with TD was made within the family, and that this has always been social care’s position. Any assistance social care gave to this family he says was in pursuance of the authority’s s17 Children Act 1989 duties rather than because C was a Looked After Child.
 There has been no issue over the law before me. The key authorities here are R(A)-v-Croydon  LGR 24 approved in R(G)-v-Southwark  UKHL 26. The discussion by Lady Hale of the principles around s20 Children Act 1989 at paragraphs 22 onward of Southwark is particularly helpful.
 In a helpful skeleton argument of high quality for a litigant in person (if I may say so) TD also refers me to R(A)-v-Coventry City Council and R(M)-v-Hammersmith and Fulham. The principles there are well known but take the matter no further than the Croydon and Southwark cases.
 Children need homes. They need families to live in who will care for them and meet their needs. When, for whatever reason, children cannot live with their parents their needs are usually best met by living with other family members.
 The failings of C’s mother cast many different waves across this family. TD was already looking after a child of another member of the family when she found out that C might need a home. She also had a husband who was unwell. She was told, I accept, that C could be difficult and could cause problems in her home. Notwithstanding all of that background TD and her husband agreed, however it came about and whoever was the prime mover, to offer C a home and a family to care for her.
 Moreover, when it became clear in 2010 that it was getting difficult for her to care for C full time TD was prepared to have her back in her home in the school holidays without any financial support (when I have no doubt that money was tight) so that C could take “the chance of a lifetime” and go to a well respected girls boarding school.
 I have no doubt that TD acted in this way not out of a desire for a financial allowance from social care but because she loved C and wanted her to be as happy as was possible given her difficult background. That is to TDs eternal credit, C owes TD a very significant debt, although I doubt TD sees it that way. TD should know that she has the court’s respect for her actions.
 However, these cases do not turn on such matters. Rather Parliament has decided, exercising its power to determine its priorities, that there must be boundaries to the obligations of Local Authority social care departments toward children. Parliament has set where those boundaries lie. Thus these cases turn on the careful application of the statutory framework, underpinned as it is by legal authority, to the facts of the individual case.
 It is right to say that TD case as to the factual background here as it came out when she explained it to me in court differed to a degree from that she put in writing in her skeleton. Having said that I have absolutely no doubt at all and say here now that I formed the view that TD was doing her very best to explain accurately to me what happened. TD frequently told me things that she knew herself were not in her interests as the case developed, she did so I am sure because she was seeking simply to be honest at all times before me.
 Cases such as this are highly fact specific and I therefore turn now to series of factual questions I ask myself.
 The first question I ask myself is whether social care considered at all what the basis of this placement was at the time, and if so what its conclusions were.
 It is clear that from a very early stage that social care was saying to TD that it was its view that C had come to live with her under a private arrangement. The material before me to support that proposition is:
(i) TD says that this is what social care was saying to her
(ii) The running records for the meeting of 28th April and thereafter confirm that after a period grappling with the problem social care took the view that this was not a fostering placement.
 The only substantial material that may point in another direction is the letter of the 16th January 2008. TD argues that this letter can be read in such a way as to suggest that TD has made a request to care for C, and that social care will assess her (and her husband) to see if it is prepared to agree to that request. In other words that in respect of this placement it is social care that is the decisionmaker. It would follow from that proposition TD argues that C was a Looked after Child. Mr O’Brien on the other hand argues that the letter should not be construed in this way, but rather that social care was simply going to assess TD and C in pursuance of its s17 duties to C.
 At the permission stage I had a copy of this letter, but not the background papers. I could see the argument of TD in respect of the letter. The letter was a significant plank in my decision to give permission. However, now that I have I had an opportunity to see all the records from that time I am satisfied that Mr O’Brien is correct, and this letter is not to be construed as meaning that social care thought that it was the decisionmaker in the arrangements for C’s placement or that C was a Looked After Child. I say so because all of the other records of the time point in another direction.
 The next question I ask myself is why did social care come to the view that this was a private family arrangement?
 Again the answer to that question is clear. The social care records for the period in which C went to live with TD are consistent, that this was a family arrangement. The social worker is told on the 10th by AB that TD “has come forward as a carer for C”. On the 11th January 2008 TD has a conversation with the social worker on the telephone where TD giving C a home on a long and short term basis in considered. On the 14th January 2008 the social worker is told by AB that “C knows that she is to move to [TD] and seemed quite happy about it”. When TD speaks to the social worker later that day finance is an issue but there is no suggestion that this placement is not to take place, rather the finance issue has to be resolved. The record of the social worker speaks specifically of payment of a “Residency [sic] allowance”.
 I quite understand that TD says that the impression AB gave to the social worker was incorrect. However, it is clear from the notes why social care came to view on what was being said that this arrangement had been made in the family.
 The next question I ask myself is whether social care came to that view as it was convenient, allowing it to sidestep its responsibilities to C. There are certainly occasions in the records for this case where there is room for the view that financial considerations are playing a role in welfare decisions. However, the overall thrust of the records is in one direction. From January 2008 onward social care was aware that there was a “major” financial issue here. It has its problems in resolving it. It did not think that this was a social care sponsored fostering arrangement and so it could not pay a Fostering Allowance. Equally AB had a Residence Order for C even though C did not now live with her and social care took the view that while she held such an order, and indeed until TD had such an order, it could not pay TD a Residence Allowance.
 Against that background social care decided to pay TD from s17 monies. As to quantum social care sought to pay a sum which would produce as much cash in hand for TD as paying a Residence Allowance. It was the allowance that was the issue at the time rather than the wider range of services to be supplied to a Looked After Child.
 None of that has the feel of social care seeking to evade its responsibilities. I do not detect on reading the notes that social care was at any point seeking to side step its responsibilities to C in coming to its position. In my judgment the records rather show that social care had formed the view that this was a private arrangement, it struggled for the first three months to work out how a financial allowance should be paid, and then it paid a financial allowance the equivalent of a residence allowance to support the placement. In doing so it met the salient request of TD which was for financial assistance.
 I finally ask myself whether social care simply got this case wrong, in other words that the arrangements put in place did in fact mean that C was a Looked After Child whatever principled conclusion it had come to.
 The test is set out in R(A)-v-Croydon and approved in R(G)-v-Southwark. It is a test based upon a series of sequential questions. The key issue from those questions which I need to address here is whether in January 2008 C was a child who appeared to the Local Authority to require accommodation. In my judgment the answer to that question is no. These are my reasons.
 The first contact from social care’s perspective (I accept that there were earlier communications between AB and TD) came from AB on the 10th January 2008. The social worker was told by AB that TD had come forward. The social worker spoke to TD the next day on the telephone and was told by TD that she would have C. It was not clear at this point whether this was to be temporary or permanent. On the 14th January the social worker visited AB and then TD. The issue of the financial allowance was raised by TD when she saw the social worker, but the discussion was along the lines that C was going to live with TD. All of that on the records has the appearance of an arrangement come to by the family, there is no suggestion here that social care is orchestrating this arrangement.
 The height of TD case now, although it is not borne out by the records, is that TD was saying to social care that she would not take C without a financial allowance. TD cannot recall now she tells me with her usual honesty what sort of an allowance she was asking for. TD was not asking at this time for any of the other services a Looked After Child would receive from social care, this is not without significance as TD “knew the ropes” having been a foster carer herself at one point.
 Looking at that picture in the round despite what TD now tells about her thinking at the time I am left in no doubt that social care was entitled to come to the view that this arrangement for C was one which had been made within the family, and that TD was looking to social care to support it by the payment of a financial allowance. Looking in particular at the visit on the 14th January 2008 to TD home all the notes record that the discussion was about a Residence Allowance.
 TD tells me frankly that she cannot now recall what she asked for. In my judgment if TD had been asking for a fostering arrangement that would have had many implications for social care and I have no doubt that request would be recorded there given that I have formed the view that social care was not intent on seeking to avoid its responsibilities to C.
 Accordingly C was not a Looked After Child at the material time and so this claim fails.
 Mr O’Brien makes application for costs on behalf of the Defendant. It seems to me that the Defendant here brought these proceedings on itself to substantial degree by not properly engaging with TD case at an early stage. I recall that even at the first permission hearing I conducted the Defendant had not put Mr O’Brien in a position where he could properly argue the Defendant’s case as he had not had an opportunity to analyse the relevant documents himself even then. As I have said this case looked somewhat different once full disclosure had been made. Exercising my wide discretion as to costs I have decided to make no order for costs here.