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What’s happening to state provision for children?

Stephen Knafler QC, Landmark Chambers

Every year, I give a talk at Legal Action Group’s annual community care conference, summarising the case-law developments over the last 12 months. I generally divide up cases between adult and children’s cases and work out how often the claimants have succeeded. In recent years, claimants in children’s cases have been substantially more successful than in adult’s cases. There has never been just one simple reason for this, but, factoring in my own personal experience, I think it’s fair to say that one factor has been that, overall, the judiciary has tended to view children’s cases more sympathetically.

2019 has not, however, been a good year for children.

Earlier this year, the Supreme Court decided that local authorities do not owe vulnerable children a duty to take reasonable care to exercise their functions under the Children Act 1989 so as to protect them from injury resulting from the extremely anti-social conduct of neighbours: Poole BC v GN and CN [2019] UKSC 25, (2019) 22 CCLR 111 (Hale, Reed, Wilson, Hodge and Black JJSC). I wrote about this case earlier in the year and explained why, in my view, this decision took a wrong turn, essentially, because the Justices did not fully appreciate the extent to which some families with vulnerable children rely on local authority help.

Later in the year, there has been a series of failed attempts to judicially review decisions by local authorities to reduce different kinds of provision for children in need and children with special educational needs. There doesn’t seem much point in going over these cases, at this point. Any local authority, these days, can be expected – sooner rather than later –to undertake consultation lawfully, discharge the PSED and make a rational decision based on a proper understanding of the relevant law. And, if at first they don’t succeed, they almost inevitably get another chance and get it right later on if the service change is one that they feel compelled to make. As local authorities get more used to challenges of this kind, and as the Courts get more used to them and understand the financial difficulties that local authorities face, one suspects that this type of challenge will only get harder.

I do not suggest that this is a good thing, on the contrary. It is obvious that decision-making must be balanced and fair, and take proper account of the need to help vulnerable individuals who stand to be adversely affected, not just because of the importance of justice being seen to be done but because, at least in ordinary circumstances and in some cases, the process ought to result in some modified, or even reversed, decisions. I also have a great deal of sympathy with a complaint made by the great American jurist Grant Gilmore, who wrote in The Ages of American Law that ‘The worse the society, the more law there will be. In hell, there will be nothing but law, and due process will be meticulously observed’. The trouble with judicial review is that it is mainly all about due process and, as Grant Gilmore wrote in language that presumably was intended to evoke some of the worst horrors of modern times, due process is able to co-exist entirely happily with hell on earth.

How refreshing then, to see a bold, ambitious challenge – admittedly one still based on due process – that seeks to get to the heart of the problems that beset a particular aspect of provision for vulnerable children: special educational needs provision. And how sad to see it struggle to clear the first hurdle – the judicial review permission stage – and fail to get any further.

This is the case of R (Simone) v Chancellor of the Exchequer and the Secretary of State for Education [2019] EWHC 2609 (Admin), in which Lewis J dismissed applications for a judicial review of central government’s budgetary decisions relating to special educational needs provision.

The applications were supported by what appears to have been impressive, detailed evidence from the claimants, supported by local authorities and charities, that central government’s funding of special educational needs has been inadequate.

At paras 18–19, Lewis J explains how departmental budgets are set, and at paras 20–25, he explains how funding for special educational needs is set and adjusted, centrally, whilst also noting that local authorities have their own sources of revenue.

Lewis J then held that both defendants had complied with the PSED in that they had considered rationally sufficient information about the possible adverse impacts of their funding decisions (essentially that, owing to the lack of sufficient state provision, special educational needs provision would increasingly have to be made in more expensive private establishments, diverting funds from mainstream budgets, until the next spending review). In relation to the Chancellor, Lewis J said that:

… given the function he was exercising, the nature of the decision he was taking, and the information he had, the Chancellor did have due regard to the specific matters identified in section 149 of the 2010 Act, including the need to advance equality of opportunity for children and young persons with special educational needs and disabilities.

It does not appear that either defendant undertook formal equality impact assessments. Lewis J appears to have proceeded however on the basis that, in substance, each defendant had ‘due regard’ to the considerations in the PSED by carefully considering the advantages and disadvantages of the various funding options, in the light of the needs of pupils with special educational needs, based on rationally sufficient information.

Lewis J then held that the secretary of state was not in breach of Children and Young Persons Act 2008 s7, which imposes on him the ‘general duty … to promote the well-being of children in England’. Lewis J held, unsurprisingly, that section 7 did not give rise to any duty on the part of the secretary of state to take any specific step, enforceable at the suit of an individual. More controversially, he seems to come close to describing the duty as all but non-justiciable. His conclusion, however, was that however one precisely defines the section 7 duty, it was manifestly not breached on the facts, given that the secretary of state made difficult funding decisions, involving choosing between different options in the light of his assessment of their relative strength, on the basis of adequate information.

There was an irrationality challenge that did not really get off the ground, given that there was to be a further major spending review later in 2019, both defendants had sufficient information before them, and the decision related to complex funding allocations.

Lewis J then considered a claim based on Thlimmenos-discrimination, that insufficient extra provision was made for children with special educational needs. Lewis J noted that children with special educational needs were ‘treated in a fundamentally different way both factually and legally’ and did receive substantial additional funding. He concluded that:

The legal regime provides for special educational needs, and the appropriate provision, to be identified. Thereafter, local authorities are required to secure that the provision is made available (irrespective of their resources). The funding system provides specifically for high needs funding. It is recognised by the second defendant that many local authorities are spending in excess of their allocation and are funding that from other sources. The second defendant has made additional funding available in December 2018. The question of funding for future years is to be considered in the 2019 spending review. There is no reasonable basis for concluding that the situation that applies here involves any breach of the need for reasonable accommodation for disabled students when needed in a particular case

In short, Lewis J decided that there was no ‘differential treatment’ and so it was unnecessary to reach a decision of issues such as whether the treatment of pupils with special educational needs fell within Article 2 of the First Protocol ECHR. He specifically held that the UN Convention on the Rights of Persons with Disabilities was of no assistance, in this case, to the proper approach to the ECHR.

In conclusion, Lewis J expressed the view that he had found the judicial review applications to be ‘just about arguable’ and fired a warning shot across the bows of anyone who might be contemplating similar litigation in the future, that they may not be granted even permission to apply for judicial review.

What went wrong? In my opinion, the fundamental underlying problem was that the evidence, as summarised by Lewis J, did not show – on careful analysis – anything more than serious concerns on behalf of the individual claimants that their particular needs might not be fully and sustainably met. And, in this context, local authorities are of course under a duty to assess and meet the special educational needs of individual pupils without regard to the cost.

There appears to have been a serious concern, in the wider evidence, that local authorities were routinely exceeding their budgetary allocations on special educational needs, because of the lack of relatively cost-effective state-funded provision, which required local authorities to take from other budgets for special educational needs purposes. On the other hand, there does not appear to have been evidence that local authorities were not diverting money from other budgets, so as to be able to discharge their duties relating to those with special educational needs. The defendants appear to have accepted that there was a fundamental problem here but that it should be assessed in the context of a formal spending review in 2019, when a wider view would be taken as to the local and national policy changes, and funding approaches, that could be deployed. There does not appear to have been any evidence that this serious problem could not wait until then, or, even, that it could be resolved before then, on the evidence currently available.

Ultimately, therefore, the judge seems to have been presented with a case where, almost inevitably, quite wide legal principles could not gain any traction, given the complexity of the high-level budgetary and policy considerations in play. There was insufficient evidence of concrete failures of service provision and, although there was a serious problem around funding and state provision, that was a problem that the government had well in mind and was actively grappling with, in a manner that could not be seriously criticised.

And yet, one is left with a lingering sense of what might have been, had the application for judicial review been made at a different time, or with different evidence, and that lingering doubt is anything but assuaged by the report of the House of Commons Education Committee, published on the 23 October 2019, called Special educational needs and disabilities (First Report of Session 2019-20). I’m not going to summarise the report because it’s publicly available and easily read. Suffice to say, the report paints a bleak picture of ‘confusion and at times unlawful practice, bureaucratic nightmares and adversarial experiences’ and ‘too much of a tension between the child’s needs and the provision available’, a ‘significant funding shortfall’ (albeit, it is acknowledged, the government has very recently ‘taken initial steps’ to remedy that) and ‘a general lack of accountability within the system’.

The situation is arguably even worse, when it comes to adult social care provision.

The Care Quality Commission published The State of health care and adult social care in England 2018/2019 on the 14 October 2019. Whilst many areas of good service provision were noted, the Care Quality Commission also considered that:

  • People who need support from mental health, learning disability and autism services “may receive poor care from unqualified staff; they may have to wait until they are at crisis point to get the best help they need; they may be detained in unsuitable services far from home, or they may be unable to access care at all”;
  • “Some people are detained in mental health services when this might have been avoided if they had been helped sooner, and then find themselves spending too long in services that are not suitable for them”;
  • “Our inspectors are seeing too many mental health and learning disability services with people who lack the skills, training, experience or clinical support to care for patients with complex needs”;
  • “Healthwatch England has suggested that fewer than half of all people with dementia, who use social care, are getting the regular care reviews they are entitled to …”;
  • “there are parts of the country where relative concentrations of poor-quality care, as shown by the ratings, mean that people living there may find it more difficult to access good care”;
  • 16 per cent of social care providers were rated as inadequate (1 per cent) or requires improvement (15 per cent);
  • Age UK has estimated that 1.4 million people are not obtaining the care they need, and of that number “300,000 people need help with three or more essential daily tasks”;
  • The social care system remained hugely under-funded;
  • Private providers were increasingly refusing to make provision in local authority-funded cases because the contract prices did not cover the cost of providing care;
  • There were problems with obtaining and retaining good quality social care staff because of the greater rewards and clearer career structure in health care provision;
  • 39 per cent of hospital, community health and ambulance services were rated as inadequate (3 per cent) or requires improvement (36 per cent) in relation to safety;
  • Emergency health care was rising year-on-year;
  • 20 per cent of mental health care provision was rated as inadequate (3 per cent) or requires improvement (17 per cent) – safety was a particular concern;
  • There had been a 14 per cent reduction in the number of mental health beds, which had been planned, but the planned commensurate increase in community-based provision did not appear to have occurred;
  • Children with learning disabilities and autism experienced a lack of timeous and appropriate are throughout childhood and young adulthood;
  • Between June 2018 and March 2019, according to coroners, at least seven people died after they had been assessed as requiring hospital admission but before a mental health bed had become available;
  • There was a serious lack of mental health rehabilitation services in the community for those most seriously affected;
  • The responsiveness of CAMHS was rated as requires improvement (21 per cent) or inadequate (10 per cent).

The parlous state of adult and children’s services concerns families and local government alike but, at the moment, litigation aimed at securing a legal remedy appears to run into the ground, except in cases where incautious local authorities clearly get something very wrong and then fail to appreciate that until it is too late. One recollects that local authority attempts to challenge inadequate social care funding by central government have also come to grief: R (Liverpool CC) v Secretary of State for Health [2017] EWHC 986 Admin, (2017) 20 CCLR 391. It may be that a wider view needs to be taken of the legal remedies available. It may be that future litigation aimed at central government will stand on the shoulders of Simone and be more successful and (ideally) that seems a potentially useful way to go for those concerned, despite Lewis J’s shot across the bows. However, it has to be said, such cases are complex, expensive and exhausting to prepare, and risky to litigate. But unless a political solution is going to be found, and there is nothing on the horizon at the moment, surely, something to give. Things can’t carry on as they are.

 

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Poole: why can’t the law do more for vulnerable children?

Stephen Knafler QC, Landmark Chambers

 

Introduction

The Supreme Court has decided that Poole did not owe vulnerable children a duty to take reasonable care to exercise its functions under the Children Act 1989 so as to protect them from injury resulting from the extremely anti-social conduct of neighbours: Poole BC v GN and CN [2019] UKSC 25, [2019] 2 WLR 1478 (Justices Hale, Reed, Wilson, Hodge and Black).

The first question that any lawyer is likely to ask, before even reading into the judgment, is how did it come about that the family went all the way to the Supreme Court in negligence, when they could simply have brought proceedings for damages under the Human Rights Act 1998? Although compensation is significantly lower under the 1998 Act, than in negligence, the family would probably have been able to establish liability, at least, in the light of cases such as E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536, which establish that public authorities are under a duty to take reasonable steps to protect vulnerable persons, including in particular children, from ill-treatment contrary to Article 3 ECHR.

The answer appears to be that there were earlier proceedings on behalf of the family under the 1998 Act but that these were struck out because of a failure to serve the Particulars of Claim in time. This was not an ideal basis for seeking to persuade the courts to extend the law of negligence. More importantly, the concerns one might feel about the Supreme Court’s failure to hold Poole liable in negligence may need to be tempered by the consideration that there will be, in similar cases, an alternative remedy under the 1998 Act; but more about that, later.

The second question that any lawyer is likely to ask, is why the family didn’t utilise the statutory complaints procedure and, if need be, complain to the Local Government and Social Care Ombudsman? The short answer is that, according to the case-law, having gone down the litigation path, it is impossible to change horses. The longer answer is that this would have been a viable, low-cost option that would have most likely resulted in a decent award of compensation for the family and with Poole being required to revise its practices. Nothing is certain, but in the light of the facts of the case, summarised below, it seems highly probably that the LGSCO would have had a field day.

So, in a sense, the main lesson to be drawn from the Poole case is not to do what this family did, but to use the statutory complaints process/LGSCO or, at least, to bring proceedings under the 1998 Act and to conduct them competently so they don’t get struck out.

Having said that, was the Supreme Court right to decide the case in the way that it did? In my view, the answer to that is ‘no’. Is there any point in even considering this question, though? Yes, I think so, because it shines a light into the judicial decision-making, its strengths and its flaws, that might be useful in future cases and may highlight some further options that could be explored in a different case. After all, although Poole was in some ways an extreme case, cases like it do arise.

Facts

In May 2006, Poole placed a mother (‘Amy’) and her two children in a house on an estate in Poole, adjacent to another family who, as Poole knew, had persistently engaged in anti-social behaviour. One child, ‘Colin’, was aged 9 and was severely disabled mentally and physically. Poole adapted the house for his needs and provided him with a care package and a social worker. The other child, Graham, was aged 7.

Between May 2006 and December 2011, when Poole eventually re-housed the GN family, the family was subjected to a campaign of abuse and harassment by the anti-social family, including vandalism of Amy’s car, attacks on their home, threats of violence, verbal abuse and physical assaults on Amy and Graham. These had serious adverse consequences for the physical and mental health of Amy and Graham.

Amy complained about the anti-social family from the start and Poole, and the local police, did take some steps to help her and her sons including the eviction of the neighbouring family, injunctions against them, contempt of court proceedings, anti-social behaviour orders and imprisonment.  These measures were ineffectual. To be fair to Poole, we’ve all seen authorities that have done a good deal less and got away with it. The problem for Poole was that, as a result of considerable publicity surrounding the case, the Home Office commissioned an independent report that concluded that the police and Poole failed to make adequate use of the powers available to them under the anti-social behaviour legislation.

Once a lawyer reads the facts of the case, he or she is likely to want to ask a further question, not directly connected with the negligence judgment: why didn’t the family bring proceedings during the period of nearly 5 years during which they were subject to this horrible campaign of anti-social behaviour? Maybe they did; there’s nothing about that in the law reports, one way or the other – but if they did, they obviously failed to succeed in getting an accommodation transfer. I suspect they didn’t, for the same reason that, if they did, they failed: the judicial review system tolerates negligence and incompetence unless a clear error of law is involved, or the negligence reaches such a grotesque pitch it passes the Wednesbury threshold. The regime is one that accords a huge latitude towards local social services and housing authorities such that, in practice, it is incredibly difficult to use judicial review to force through a housing transfer (or even a reconsideration of a decision not to transfer), in particular when, as in this case, the factual context was always shifting. It does though seem to me that the question is a relevant one and that the ineptitude of judicial review in certain real-world situations has some relevance to the approach to issues of negligence.

How the children’s case was put

The children brought proceedings against Poole in the tort of negligence, alleging that Poole had failed to take proper care in the exercise of its functions under sections 17 and 47 of the Children Act 1989 (‘the Act’).

Section 17 of the Act is the general provision which, inter alia, requires local authorities to take reasonable steps to prevent children suffering ill-treatment or neglect, through the provision of services under Part III of the Act (which can include accommodation).

Section 47 of the Act provides for local authorities to, inter alia, take care proceedings where a child is suffering, or is likely to suffer, significant harm attributable to unreasonably poor care.

The children’s case was put on the basis, essentially, that Poole knew that this was a highly vulnerable family and that it was being subjected to anti-social conduct likely to cause family members significant injury and that Poole was under a duty to take reasonable steps under sections 17 and/or 47 of the Act to protect the children, but failed to do so.

A few other arguments were also run, but they were dealt with quite shortly and it is unnecessary to go over them here. No reliance was placed on the functions of local authorities relating to housing, protection from anti-social behaviour or the provision of support for carers. As will become clear, however, it is almost inconceivable that any attempt to rely on these provisions would have made any difference to the outcome in this case. It also seems though that no reliance was placed on section 20 of the Act. That possibly might have made a difference – see the end.

The law of negligence and public authorities

In the only judgment, Lord Reed summarised developments in the law of negligence between the 1970s and the present time. He drew attention, in particular, to the distinction in the cases between ‘causing harm (making things worse) and failing to confer a benefit (not making things better)’ (previously referred to as the distinction between ‘acts’ and ‘omissions’; and to the cases that established that, where there had been a failure to confer a benefit, or make things better, the defendant – whether that was a private individual or a public authority – would not in general be liable but might be liable in particular circumstances, for example, where they had created the source of the danger or had assumed responsibility to protect the claimant from harm. His analysis brilliantly clarifies what these cases actually decided and how they all fit together.

Lord Reed concluded his survey in these terms:

  1. It follows (1) that public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived; (2) that public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and (3) that public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority has created the source of danger or has assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation …

75…That approach is based on the premise that public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers.

On this basis, the Court concluded that what was critical was whether Poole had assumed a responsibility to protect the children from injury.

As to that, Lord Reed said that Poole had not assumed a responsibility to protect the children from injury because neither Poole’s statutory functions under the Act, in themselves, nor the particular manner in which Poole discharged those functions, showed that Poole had undertaken a responsibility to protect the children from injury caused by the neighbours on which it was reasonable for the family to rely. The reasoning here is a little murkier and, I would say, laden with assumptions and value judgments, as to which more later. For the time being, this is it:

  1. As Lord Browne-Wilkinson explained in relation to the educational cases in X (Minors) v Bedfordshire(particularly the Dorset case), a public body which offers a service to the public often assumes a responsibility to those using the service. The assumption of responsibility is an undertaking that reasonable care will be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care. Thus, whether operated privately or under statutory powers, a hospital undertakes to exercise reasonable care in the medical treatment of its patients. The same is true, mutatis mutandis, of an education authority accepting pupils into its schools.

  2. In the present case, on the other hand, the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by rehousing them, but anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The position is not, therefore, the same as in Barrett v Enfield. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care.

  3. It is of course possible, even where no such assumption can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case. Since such an inference depends on the facts of the individual case, there may well be cases in which the existence or absence of an assumption of responsibility cannot be determined on a strike-out application. Nevertheless, the particulars of claim must provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred. In the present case, however, the particulars of claim do not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred …

So, what are the key questions for future claimants and defendants?

In the light of Poole, when a case arises where a person may have suffered injury as a result of lack of reasonable care by local authority (acting unlawfully in public law), it looks as though the key questions, in order to decide whether there was a duty of care, are as follows:

  • did the local authority/staff cause the harm?
  • did the local authority/staff create the source of the danger?
  • did the local authority/staff assume a responsibility to protect the claimant from harm?
  • is the nature of the statutory function exercised by the local authority such that it is implicit that the local authority has assumed responsibility to exercise a special skill to protect the claimant from harm and was the claimant entitled to rely on local authority (e.g. in the case of teachers and educational psychologists, or social workers exercise functions in relation to children in care)?
  • on the particular facts, does the way in which the local authority exercised its statutory function show that the local authority has assumed responsibility to exercise a special skill to protect the claimant from harm and was the claimant entitled to rely on local authority?

If the answer to any of these questions is ‘yes’, then there will be a duty of care unless that would be inconsistent with and excluded by the legislation that provided the powers or duties the local authority was exercising.

A critique of the judgment from a claimant’s perspective

The judgment is not all bad, from a claimant’s perspective. A positive is that the Supreme Court has – on the face of it – dealt the coup de grace to the decision in X (Minors) v Bedfordshire CC [1995] 2 AC 633, insofar as that case ruled out on grounds of public policy the possibility that a duty of care might be owed by local authorities or their staff towards children with whom they came into contact in the performance of their functions under the Act, to protect them from harm from third parties, and insofar as it held that any liability on the part of such persons for inflicting harm on a child was dependent on their having been an assumption of responsibility: whether a local authority or its employees owe a duty of care to a child in particular circumstances will depend on the application of the principles summarised above.

I question below, however, whether Poole truly has driven policy considerations out of the equation or whether, rather, it has simply driven them underground.

It might also be said that it is difficult to criticise the judgment insofar as it simply applies to local authorities the tests for establishing negligence that apply in the case of private persons, with the proviso, which is hard to take exception to, that there cannot be a duty of care where that would be inconsistent with and excluded by the legislation from which the local authority powers or duties were derived.

But there is in my view something awry in applying the same approach to private persons and local authorities. It seems fair, at first glance, but is it?

To start with, local authorities are not private persons and, in real life, the fact is, contrary to the view of the Supreme Court, some individuals do entirely rely on a particular local authority to discharge its statutory duty to protect them with reasonable care and have no real alternative. That relationship between a person subject to a statutory duty to protect someone’s welfare, and that person not having any other person to turn to, to protect them, is not found between individuals and has a very different character.

Take this case. One is not privy to all the background facts, but all lawyers who practice in this area of law will have come across families like this and this type of case.

This is not the type of case, on the face of it, where Poole was required to make difficult and complex decisions involving professional judgment or resource allocation and, even if it was, that would simply mean that it would become that much more difficult to establish that Poole had acted unlawfully, and therefore in breach of a duty of care, given the margin of judgment the courts would give it.

With that proviso, let me posit an alternative – but, I think, more realistic take, than the Supreme Court’s  – on the same facts:

  • in all probability, Poole housed the GN family because the GN family was unable to obtain accommodation of their own, for a whole raft of reasons that are known about – shortages of housing, shortages of adapted housing, the difficulty of obtaining accommodation that can be adapted and getting adaptation grants, high rents, the inadequacy of housing benefit and so on – and so the GN family was reliant and dependent on the local authority for getting accommodation;
  • it is established that Poole knew both that the GN family was especially vulnerable and that their next-door neighbours were highly anti-social. One suspects that the accommodation provided to the GN family had become quite hard to let and Poole considered itself fortunate to find a family desperate enough, and/or unaware enough of the circumstances, to take it;
  • when the highly foreseeable onslaught of anti-social behaviour ensued, the family would have been entirely dependent in practice on Poole and the police taking reasonable steps to protect them via the legal mechanisms that are in place (given that the GN family did not have its own private army or alternative housing options or, it appears, substantial financial resources or connections) and, when it became clear that those were ineffective, on Poole taking reasonable steps to accommodate the family elsewhere, which obviously it could have done;
  • it was entirely reasonable for the family to rely on Poole. Not only did they have no other option as a matter of practical reality, Poole was under a statutory duty to take reasonable steps to protect them.

If one looks at the facts of the case in the round, from Poole placing the family next to known perpetrators of anti-social behaviour, also tenants of Poole, through to Poole failing to take reasonable steps (on the assumed facts) to remedy the situation it had itself created, a different factual view could have been taken by the Court e.g. that this was akin to the type of case where the local authority has created the source of the danger or, indeed, akin to the type of case where the local authority caused the harm: after all, it placed the GN family in harm’s way. So, if the Court had wanted to do so, if it had been a bit more sympathetic and understanding of the family’s plight, it could have accommodated this case within the framework of law that it had laid down.

Alternatively, the Court could have developed the law a little bit. Isn’t the whole point of having a Supreme Court, that it will develop the law to keep pace with modern life and remedy injustice? Wasn’t what occurred here obviously unjust? Poole placed the family in a situation where it was likely that family members would be seriously injured and then failed to take reasonable steps to bring the injury to an end, for nearly 5 years, in circumstances where, in practice, the family was entirely reliant on Poole and reasonably so given the statutory duty Poole owed to them. The Court could easily have developed the law of negligence so as to cater for this type of case, had it wanted to.

The Court did not wish to develop the law of negligence as suggested above, nor did it wish to recognise the facts of this case as falling with the legal framework it had laid down. At the heart of its reasoning, is the assumption or value judgment that the steps taken by the Council to protect the children ‘did not involve the provision of a service to them on which they or their mother could be expected to rely…. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted their responsibility’. Seriously? Isn’t this just policy, driven underground by the legal logic of the judgment, re-surfacing as a value judgment equally fatal to what ought to have been a perfectly good claim? Poole was responsible, by virtue of the duties placed on it by the Act. The family’s safety was in Poole’s hands and obviously the family relied entirely on Poole to do its job, and reasonably so. Surely, it is only an un-expressed policy view and unexamined assumptions that led to the contrary conclusion?

So what is the litmus test for an ‘assumption of responsibility’ in this context? That is left rather vague. The general statements, well-known, in Hedley Byrne and Spring are clearly capable of embracing the situation in which the GN family found itself. But they were not accepted as doing so, for the – in my view – mistaken reasons set out above. The odd thing is that the Court had no difficulty in accepting that, if Poole had taken the children into care, or – presumably – agreed to look after them under section 20 of the Act, then Poole would have assumed responsibility for their welfare and would have owed them a duty of care. It can be seen therefore that the Court attributed great significance to the difference in status between a looked-after child and a child in need, but why? It makes no sense to me because serious and hugely important duties are owed to both categories of children and the level of importance of the duty depends on the facts of the case, not the category into which the children fall; as this case very sadly illustrates.

What about the point that none of this really matters because the family could have, and other families can, litigate properly under the 1998 Act, and seek redress properly that way? In my view, these considerations are not a very good excuse for not developing the law of negligence, nor are they some kind of comforting factor. The UK may at some point cease to be an ECHR state, at which point we will be left with Poole and nothing to redeem the situation. Compensation under the 1998 Act is very low and well below the level required properly to remedy the type of injury suffered in this case. The ECHR is directed at a different kind of wrong than negligence. Finally, it is a bit pathetic if our own law, the law of this country, poised as this country may be on the brink of proud national self-sufficiency, cannot provide adequate redress to vulnerable children under its own laws, when those children have suffered injury as a result of a local authority so badly discharging its statutory duty to protect them, as to have acted unlawfully.

What about the statutory complaints process/LGSCO?  This is of course an extremely valuable domestic remedy but it has a shorter limitation period, compensation is usually somewhat lower, the remedy is in legislation which can be amended, the maladministration jurisdiction is aiming at something different than negligence and, ultimately, it’s existence just isn’t a good reason for not developing the common law properly, by which I mean, in a way that takes proper account of the situation in real life of vulnerable children and their families.

So, why bother to write about the negligence aspect of the case at all? The Supreme Court has spoken, so perhaps every sensible person ought to hold their silence. Well, firstly, the case is of considerable interest and importance and every lawyer, no matter how relatively lowly, is entitled to his or her opinion about it. Second, Lord Reed did make it clear, at the end of his judgment, that ‘the existence of an assumption of responsibility can be highly dependent on the facts of a particular case’. It may be that, somehow, in some way, the considerations I’ve identified may assist in marshalling facts in another, different case, in a way that does bring the case within that rubric, in the Court’s opinion. Third, the Court, like the Court of Appeal, disposed very robustly of the subsidiary point made by the family, that Poole was in breach of duty to take care proceedings. I don’t think the Court can be faulted on that.

As a final thought, one further odd thing, perhaps, is that the family didn’t put this aspect of its case on the basis that Poole was in breach of duty to offer to accommodate the children under section 20 of the Act (i.e. because the mother was ‘prevented (whether or not permanently, and for whatever reason) from providing [them] with suitable accommodation….’).  Insofar as the Court seemed open to the argument that a failure by Poole to enter into a closer, caring relationship with the children may have been relevant to whether it ought to treat Poole as being under a duty of care, then, it may be, where appropriate, reliance can be placed on breach of section 20, in a future case.

Of course, the judgment in Poole is legally brilliant and it could be understood as being subtly progressive; indeed, clearly it is progressive in some ways. Does it though go far enough? Does it, even, base its conclusions on a fair understanding of the situation in real life of families such as the GN family? In my view, the answer to both questions is a resounding ‘no’.

Stephen Knafler QC is the author of Adult Social Care Law (2nd edn, 2019) and Children’s Social Care Law (2018) and editor of Community Care Law Reports (all LAG)

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Children and Social Work Act 2017: implementing the corporate parenting principles

In a series of posts, Stephen Knafler QC, and colleagues at Landmark Chambers, will examine in detail key provisions of the Children and Social Work Act 2017 and consider how they fit into the wider picture of children’s social care.

In this second blog, Stephen examines the implementation of the corporate parenting principles (CPP). This will be followed shortly by a post considering the local offer for care leavers

Introduction

Section 1 of the Children and Social Work Act 2017 (the Act) requires local authorities to prioritise the welfare of ‘looked after’, ‘relevant’ and ‘former relevant’ children (referred to in the Act as ‘relevant children and young persons’ (RCYP)) whenever they discharge any of their functions in relation to them. It does this through the corporate parenting principles (CPP), which comprise seven ‘statutory needs’, and through statutory guidance.

The purpose of the CPP is to significantly improve the welfare and life chances of RCYP by requiring local authorities to prioritise their welfare at all times. That does not necessarily require different outcomes, in cases where there are important countervailing considerations, such as a lack of resources. However, the statutory guidance certainly envisages that there will be improved outcomes – as a result of local authorities giving proper consideration to the welfare of RCYP when previously they might not have done, or as a result of local authorities being unable to justify an adverse outcome, having given prior consideration to the CPP. Inevitably, as a relatively powerful process requirement, the CPP are likely to give rise to and/or loom large in judicial reviews of local authority decision-making in relation to RCYP.

The first post in this blog examined the legal content of the CPP; this second post is intended to be more practical and explores how the CPP should be implemented and some of the legal issues that are likely to arise.

Implementing the CPP

The CPP should inform and permeate:

  • policy and strategy that has a bearing on relevant children and young persons;
  • arrangements within local authorities;
  • arrangements between local authorities and other organisations;
  • decision-making in individual cases.

Policy and strategy

The CPP should be ‘integral’ to:

  • the development and review of a local authority’s ‘local offer’ to care leavers (under section 2 of the Act) as well as its ‘local offer’ to RCYP with SEN or a disability (under section 30 of the Children and Families Act 2004 (see para 4.53 of Children’s Social Care Law));
  • the ‘Care Leavers Covenant’ – when that finally appears;
  • Joint Strategic Needs Assessments (JSNA) and Joint Health and Well-being Strategies (see para 4.27 of Children’s Social Care Law).

As to how the CPP are relevant when formulating/reviewing general strategy and policy documents, it is suggested that those concerned would be well advised to:

  • expressly record that they had regard to the CPP;
  • set out each of the seven ‘needs’ within the CPP and explain –
    • how each ‘need’ was taken into account and given effect to eg how decision-makers took into account the need to ensure that the proposed policy was in the best interests of, and promoted the physical and mental health and well-being, of RCYP;
    • how decision-makers encouraged those persons to express their views, wishes and feelings about the proposed policy (and so on) –

    culminating in the overall question: ‘would this policy be good enough for my own child?’;

  • establish bodies such as a Children in Care Council or Care Leavers Forum and use online surveys, websites and other forms of modern technology to ascertain and take into account the views of RCYP to ‘feed in’ to general policy-making and strategy. For example, some local authorities have developed apps that allow RCYP to communicate how they feel about the services they are receiving, to social workers and other professionals, such as advocates.

Arrangements within local authorities

Many local authorities have established Corporate Parenting Boards or Panels, to look strategically at how children and care leavers experience their services (para 3.1 of Applying CPP).

Page 11 of Applying CPP suggests that:

  • lead members and senior officers promote the idea that looked after children are part of the ‘local authority family’;
  • there is regular contact between lead members/senior officers and Children in Care Councils; lead members/senior officers demonstrate that they care, for example, by visiting looked-after children placed outside the area;
  • services and practices change as a result of input from looked after children and care leavers;
  • local authorities should consider having an annual day/week when looked after children and care leavers meet with lead members/senior officers to discuss relevant issues;
  • local authorities appoint a Young Director (and apprenticeship for a care leaver, to mirror the work of the Director of Children’s Services).

Arrangements between local authorities and other organisations

Section 1(1)(d) refers to the need to help RCYP to ‘gain access to, and make the best use of, services by the local authority and its relevant partners’. (For the definition of ‘relevant partners’ see above).

One way of discharging this aspect of the CPP, would be for a local authority and ‘relevant partners’ jointly to consider:

  • what services are available for relevant children and young people across the spectrum of relevant organisations;
  • whether – having regard to the CPP – those services should be supplemented, or varied, and whether any eligibility criteria should be varied; and
  • how these services can be publicised, eg by a supplement to the ‘local offer’ under section 2 of the Act.

Nothing prevents a local authority endeavouring to undertake the same exercise with other organisations that are not ‘relevant partners’, eg local voluntary organisations or indeed commercial entities, and it would be consistent with the CPP to do so.

Already in place, section 10 of the Children Act 2004, requires local authorities to make arrangements to promote co-operation between ‘relevant partners’ with a view to improving the well-being of children in the area (and section 10(5) requires ‘relevant partners’ to co-operate, in turn, with local authorities).

The CPP requires that, when local authorities and ‘relevant partners’ co-operate with each other, in making arrangements to promote the well-being of children in the area, local authorities should seek to include a focus on the CPP, so that the arrangements made promote the CPP. That entails, as a minimum, ensuring a shared understanding of the needs of RCYP and ensuring that arrangements for multi-agency working take account of those needs.

Again, nothing prevents a local authority from endeavouring to make similar arrangements with other bodies who are not ‘relevant partners’ (eg the Home Office and voluntary organisations) and it would be consistent with the CPP to do so.

In practical terms, this can involve a local authority:

  • working with schools and other local organisations (the Local Music Education Hub, Bridge organisation, County Sports Partnership, for example) to promote access by RCYP to local leisure and cultural services;
  • promoting participation in activities such as the Duke of Edinburgh Award Scheme and National Citizen Service;
  • working collaboratively with universities to link care leavers into higher education.

Migrant children

The NRPF Network has published a useful article – How will the Children and Social Work Act 2017 affect migrant children?  It emphasises, rightly, that:

The NRPF Network also emphasises the importance of undertaking meaningful care planning for migrant children and helping them to achieve a sustainable form of immigration status, as well as, importantly, obtaining their views and input in relation to policy development and services generally.

Decision-making in individual cases

The CPP will obviously be relevant to assessments of need for RCYP.

It would be (to put it mildly) good practice and prudent for assessment documents to record, explicitly, that the assessor has had regard to the CPP and, indeed, to set them out. That would not, however, be enough by itself. The assessment will need to show that, as a matter of substance, the assessor did have regard to the CPP. To give an obvious example, if the assessment does not record the views of the RCYP, it will be difficult to show that, in substance, the assessor had regard to the need at section 1(1)(b), ‘to encourage those children and young people to express their views, wishes and feelings’. Again, therefore, it would be highly advisable for important work with individual children (eg care and pathway plans, and reviews) to include a section that  explains how the process has taken into account each of the seven ‘needs’ within the CPP. A failure to do so would, at best, amount to very poor social work practice.

Social workers and others will need to show how they have applied the CPP to specific problems that may arise in relation to individual RCYP, whether those problems are addressed in a needs assessment (as ought normally to happen) or elsewhere. So, for example, suppose a RCYP presents with ‘challenging behaviour’: a specific example given in Applying CPP, at paragraph 4.5, is the need to consider encouraging carers and professionals (and other agencies, such as the police) to use restorative justice and to understand and ameliorate the underlying causes of the behaviour (under section 1(1)(a) of the Act).

The duty is ultimately one of substance. Accordingly, where it is clear that, in substance the decision-maker de facto took into account the CPP – for example,  by encouraging the relevant RCYP to express their views, wishes and feelings – the decision-making process ought to be safe from legal challenge. However, it is more than simple prudence or good practice to make express reference to the CPP and to provide a reasonably clear explanation, contemporaneously, as to how the ‘seven needs’ were taken into account. The CPP embody a very important duty. A failure expressly to address them may well not call into question the lawfulness of the decision-making process when that process touches upon areas that are relatively distant from mainstream decision-making about children and where it is, also, clear, that in substance consideration was given to relevant aspects the ‘seven needs’. But where the challenge is to assessment and care planning in relation to individual RCYP, or to strategic decisions that have a direct bearing upon RCYP (eg JSNAs, or service closures decisions), a failure expressly to address the CPP ought to be seen as such poor practice as to invite especially robust consideration on the part of the court, and a quashing of the relevant decision-making unless it is clear that, despite such incompetence, the substance of what is required truly was performed.

The lawyers’ perspective

Lawyers and courts are now used to grappling with legislation that imposes overarching process duties onto social care legislation. There is a decent argument that the CPP require more robust court supervision, than has so far been the case, but the obvious starting point is the courts’ approach to similar, existing legislation, for example:

  • under section 1 of the Care Act 2014, which requires local authorities exercising a function under that Act in the case of an individual ‘to promote that individual’s well-being’, as further defined, and to ‘have regard to the following matters’ – a series of eight important factors and needs, such as the importance of beginning with ‘the assumption that the individual is best placed to judge the individual’s well-being’;
  • under section 11(2) of the Children Act 2004, which requires local authorities to ‘make arrangements for ensuring that … their functions are discharged having regard to the need to safeguard and promote the welfare of children’;
  • under section 149(1) of the Equality Act 2010, which requires local authorities to ‘in the exercise of its functions, have due regard to the need to … eliminate discrimination … advance equality of opportunity … foster good relations between persons who share a relevant protected characteristic and persons who do not share it’.

As to the relevant case-law on these duties, see chapter 4 of Adult Social Care Law and chapters 1 and 2 of Children’s Social Care Law.

Having regard to the case-law on these similar process duties, on the one hand, there are likely to be limits to the duty imposed by the CPP:

  • like the other duties referred to above, the CPP is clearly a duty of process rather than a duty to achieve any particular result – although, as mentioned above, the statutory guidance envisages that it will, in practice, result in at least some changed outcomes (otherwise, what would be the point?) and, it could be argued, the CPP requires more by way of justification should the outcome not meet one or more of the ‘seven needs’;
  • important though the seven needs that comprise the CPP are, they can in principle be outweighed by other factors, such as the local authority’s view as to where the best interests of the RCYP lies, or by limitations on the local authority’s physical or financial resources (see para 4.11 of Applying CPP). Accordingly, local authorities can still make budget cuts, close services and make other decisions adverse to the interests of RCYP providing they take the CPP into account. On the current legal approach to similar duties, it will probably be the case that, ultimately, providing a local authority diligently takes account of the CPP, its ultimate decision how best to proceed will  be subject to a conventional public law challenge only – although it is arguable that a more stringent approach is required, in this context;
  • although it is good practice to refer expressly to the CPP and to explain how they have been taken into account the duty remains one of substance. Accordingly, a local authority will have acted lawfully if it can show that it did, in fact, take the CPP into account. For example, what was written down at the time may show that the CPP were taken into account, even though no express reference is made to them; or the court may be persuaded by ex post facto evidence that the CPP were taken into account. One would though strongly expect RCYP’s formal assessment and planning documents expressly to consider each of the seven needs, as well as strategy and policy documents directly connected with children’s welfare;
  • it will almost certainly be acceptable for the local authority to concentrate on the needs within the ‘seven needs’ that are relevant, rather than any needs that are irrelevant, to the issue under consideration. For example, where a discrete issue arises in relation to a ‘looked after’ child’s education, it may be unnecessary to have regard to the need for them to be safe and to have a stable home (see para 2.6 of Applying the CPP). That would not apply, of course, to a formal needs assessment, which will be expected to consider the RCYP’s welfare in the round and, therefore, all of the seven needs;
  • it will probably be lawful for local authorities to make high-level/macro budgetary or other decisions with no or a reduced focus on the CPP, on the basis that implementation will be subject to the CPP and the budgetary decision may be reversed – although one can envisage the Courts taking a different view than heretofore;
  • whether or not there has been a breach of the CPP is likely to be a highly fact-sensitive, evaluative question;
  • an unduly forensic approach may in some cases amount to an inappropriate attack on the merits of the underlying decision – one can expect the courts to be astute to guard against that;
  • as a set of ‘governing principles’ for children, the CPP are pretty feeble. Not only do they only apply to RCYP and to local authorities (cf other public bodies, and private organisations involved with children), they are some way distant from incorporating the most basic obligation, that all public authorities and indeed all private organisations concerned with the welfare of all children, should be required to comply with, found in Article 3 of the United Nations Convention on the Rights of the Child (‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’). Accordingly, the point can be fairly made, that Parliament has chosen to impose a significantly lesser obligation and that the courts should respect that choice.

On the other hand:

  • the ‘seven needs’ to which a local authority is required to ‘have regard’ are now statutorily relevant considerations, which means that local authority decision-makers are under a duty (i) properly to understand them; and (ii) consciously to consider them. A failure properly to understand or otherwise take into account one of these ‘needs’ will probably result in the relevant local authority action being held to be unlawful (eg unless the failure has not had a material effect on the end result or some other discretionary bar applies);
  • on the current legal approach to legislation of this kind, if local authorities can show that they have conscientiously taken into account the CPP, their final decision will probably be subject to challenge on conventional public law principles only, if the courts follow the path they have so far mapped out. However, one does have the statutory guidance in this case, Applying the CPP: that has to be (i) properly understood; (ii) taken into account; and (iii) followed, unless there is a sufficiently good reason why not;
  • whilst the duty is one of substance and not form, it would be very bad practice for decision-making that bears directly on the interests of one or more RCYP not to carefully refer to and address each of the CPP and ought to seriously call into question whether the process can have been a lawful discharge of the CPP duty;
  • the duty is probably non-delegable and therefore must be discharged personally by the decision-makers;
  • the duty should be discharged at the time and not addressed by way of a ‘rear guard action’;
  • it is probably implicit in the CPP that local authority decision-makers are under a ‘duty of inquiry’ to ascertain relevant information necessary to give proper consideration to the CPP – although it is unlikely that the inquiry duty will impose a higher obligation than the Tameside obligation to take Wednesbury reasonable steps to ascertain and consider relevant information. In addition, where the future is uncertain, it is likely to be sufficient to make a rational judgment about the future and then monitor developments;
  • decision-making may be treated as unlawful where it contains only token references to the CPP and a ‘tick box’ or ‘formulaic’ approach and where the decision itself and the contemporaneous material fails to show, expressly or by implication, that the substance of the CPP was in truth taken into account.

Further, although the CPP are comparable with the other general process duties referred to above, there are some differences. The ‘seven needs’ are quite specific and are closely geared to issues that are likely to arise, that affect relevant children and young persons. Accordingly, they are likely to result in a higher degree of judicial scrutiny. For example, one of the needs, to which regard must be had, is the need to help RCYP to ‘gain access to, and make the best use of, services provided by the local authority and its relevant partners’. In the case of an individual assessment/care planning process, it may be difficult for a practitioner to demonstrate that he or she did truly have regard to this need unless they can demonstrate that they took positive steps to identify what relevant services were available and to make a reasonable effort to facilitate the RCYP gaining access to them.

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The Children and Social Work Act 2017: the corporate parenting principles

In a series of posts, Stephen Knafler QC, and colleagues at Landmark Chambers, will examine in detail key provisions of the Children and Social Work Act 2017 and consider how they fit into the wider picture of children’s social care.

In this first post, Stephen provides an introduction to the corporate parenting principles (CPP). This will be followed shortly by a post relating to the implementation of those principles.

Introduction

Section 1 of the Care Act 2014 creates a set of governing principles, aimed at ensuring that the well-being of adults is central to the discharge of local authority functions under that Act. Section 1 of the Children and Social Work Act 2017 (‘The Act’) goes further and requires local authorities to prioritise the welfare of ‘looked after’, ‘relevant’ and ‘former relevant’ children (referred to in the Act as ‘relevant children and young persons’ (RCYP)) whenever they discharge any of their functions in relation to them.

It does this through the Corporate Parenting Principles (CPP), which comprise seven ‘statutory needs’, and through statutory guidance. The purpose of the CPP is to significantly improve the welfare and life chances of RCYP by requiring local authorities to prioritise their welfare at all times. That does not necessarily require different outcomes, in cases where there are important countervailing considerations, such as a lack of resources.

However, the statutory guidance certainly envisages that there will be improved outcomes as a result of local authorities giving proper consideration to the welfare of RCYP when previously they might not have done, or as a result of local authorities being unable to justify an adverse outcome, having given prior consideration to the CPP. Inevitably, as a relatively powerful process requirement, the CPP are likely to give rise to and/or loom large in judicial reviews of local authority decision-making in relation to RCYP.

Here we look closely at the content of the CPP and explore how the principles should be implemented and the legal issues that are likely to arise.

Before moving on, however, it may be useful to pause and reflect on how the CPP fit into the existing corpus of overarching welfare duties relevant to children. As set out in chapter 1 of Children’s Social Care Law (LAG, 2018):

  • where children’s rights under Article 8 of the European Convention on Human Rights (ECHR) are engaged, all public authorities including of course local authorities are required to treat the best interests of the child as a primary consideration: Nzolameso v City of Westminster [2015] UKSC 22, (2015) 18 CCLR 201;
  • otherwise, local authorities and some other public bodies (including the NHS, the police and the Secretary of State for the Home Department) are required to make arrangements to ensure that their functions are discharged having regard to the have due regard to the need to safeguard and promote the welfare of children: section 11(2) of the Children Act 2004.

Two considerations leap out:

  • first, yet again, Parliament has failed to take the opportunity to take the obviously necessary and long overdue step of straight-forwardly incorporating into national law the duty at Article 3 of the United Nations Convention on the Rights of the Child (‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’);
  • on the other hand, although the CPP only apply directly to local authorities, and only to limited classes of children and young persons, the CPP do comprise seven very specific ‘needs’. One suspects that the power of the CPP will derive from the range and specificity of these seven needs. They are designed to, and will, impose a great deal on the thought process of a conscientious decision-maker; undoubtedly, also, they will make it difficult for the less conscientious, or well-informed, decision-maker, to sustain the lawfulness of their decision-making.

Overview of legislation

The CPP are found in section 1 of the Act, at the start of Part 1. They came into force on the 1 April 2018.

Part 1 of the Act also includes a variety of specific steps which local authorities are required to take, to improve the welfare and life chances of ‘looked after’ children and ‘care leavers’.

The CPP, by contrast, comprise general principles that local authorities are required to ‘take into account’ and they have very wide effect. They are required to be taken into account not just when a local authority is discharging a function under the Act or the Children Act 1989 or one of the other enactments that specifically applies to children but, also, whenever a local authority discharges any function that has an impact on RCYP, whether that function is the local authority’s social care function, or its waste collection function – and everything in between.

The structure of Part 1 of the Act is as follows:

  • section 1 requires local authorities to ‘have regard’ to the CPP when they carry out their functions in relation to RCYP;
  • sections 2 and 3 require local authorities to publish their ‘local offer’ for care leavers and, also, provide additional services to ‘former relevant children’;
  • sections 4 to 7 comprise further provision to promote the educational achievement of previously ‘looked after’ children;
  • sections 8 to 10 make further provision in relation to care orders, adoption and secure accommodation.

The purpose of the CPP

It is clear from the language used in section 1 of the Act that the purpose of enacting the CPP is to influence and permeate the mind-set and culture of local authorities, from top to bottom, and across the whole range of local authority activity, so that whenever a local authority contemplates taking action that is relevant to one or more RCYP it brings the anxious concern of a pragmatic but loving, aspirational and enlightened parent to bear.

The statutory guidance (see below), Applying CPP to looked-after children and care leavers: statutory guidance for local authorities, drives that message home, inter alia, at:

  • para 1.1 (‘the critical question that local authorities should ask … is: “would this be good enough for my child?”’);
  • para 1.3 (‘A strong corporate parenting ethos means that everyone from the Chief Executive down to front line staff, as well as elected council members, are concerned about those children and care leavers as if they were their own. This is evidenced by an embedded culture where council officers do all that is reasonably possible to ensure that the council is the best ‘parent’ it can be to the child or young person’).

In particular, one thing that the CPP do through the statutory guidance, Applying CPP, is to enable and strongly encourage dynamic and thoughtful local authorities to innovate new solutions for promoting the welfare of RCYP in all the variety of ways that enlightened and aspirational parents would – from promoting their educational achievement through to higher education, to providing apprenticeships, to setting up bank accounts, Junior ISAs and so on. Applying CPP contains a large number of examples of good practice, clearly designed to encourage and legitimise creative efforts to improve the life chances of RCYP.

Unfortunately, that ‘best parent’ very often has seriously limited resources and one of the problems with the CPP is that it continues to allow limited resources to justify local authority action that is significantly adverse to the best interests and welfare of RCYP (see below).

The CPP

It has been implicit in legislation, and explicit in statutory guidance, for many years, that local authorities should treat the children they are looking after, and care leavers, analogously to how a good parent treats their children. For example, paragraph 1.15 of The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review provides as follows:

1.15 The responsibility of local authorities in improving outcomes and actively promoting the life chances of children they look after has become known as ‘corporate parenting’ in recognition that the task must be shared by the whole local authority and partner agencies. The role of the corporate parent is to act as the best possible parent for each child they look after and to advocate on his/her behalf to secure the best possible outcomes.

Section 1 of the Act gives statutory force to seven aspects of good parenting, to be known as the CPP.

Paragraph 1.5 of Applying CPP explains that CPP ‘comprise of seven needs that local authorities in England must have regard to whenever they exercise a function in relation to looked-after children or care leavers’.

Section 1(1) of the Act defines the CPP in this way:

1(1) A local authority in England must, in carrying out functions in relation to the children and young people mentioned in subsection (2), have regard to the need–

(a) to act in the best interests, and promote the physical and mental health and well-being, of those children and young people;

(b) to encourage those children and young people to express their views, wishes and feelings;

(c) to take into account the views, wishes and feelings of those children and young people;

(d) to help those children and young people gain access to, and make the best use of, services provided by the local authority and its relevant partners;

(e) to promote high aspirations, and seek to secure the best outcomes, for those children and young people;

(f) for those children and young people to be safe, and for stability in their home lives, relationships and education or work;

(g) to prepare those children and young people for adulthood and independent living.

An immediate and rather fundamental query arises: does the duty to ‘have regard to the need’ to, for example, ‘act in the best interests’ of RCYP mean that local authorities are under a duty to ‘act in the best interests’ of RCYP?

The answer is, unfortunately not. The duty is a duty to take into account that local authorities need to act in the best interests of RCYP, but it is not a duty to actually act in the best interests of RCYP. Equally, it is not a duty merely to take into account the desirability of acting in the best interests of the RCYP – ‘need’ is much stronger than ‘desirability’.

It is a strange way of legislating, albeit one that seems to have become fashionable. On one view, local authorities are required to exercise their functions on the basis that it is necessary to, for example, ‘act in the best interests’ of RCYP so that they must ‘act in the best interests’ of RCYP unless that would result in disproportionate damage to some other, important consideration.

On another view, local authorities may be required to do no more than bear in mind that, in principle, it is very important to, for example, ‘act in the best interests’ of RCYP, and remain entitled to form their own view (subject only to a conventional public law challenge) as to how important that is, in the particular circumstances of the case and as to what weight to be attached to countervailing considerations.

That is the approach that has been taken in the context of the PSED: see R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, (2013) 16 CCLR 479 at para 26(8).

The ‘relevant partners’ referred to in section 1(1)(d) are defined by section 1(3) as being the entities referred to in section 10(4) of the Children Act 2004 which, for convenience, are defined as follows:

(4) For the purposes of this section each of the following is a relevant partner of a local authority in England–

(a) where the authority is a county council for an area for which there is also a district council, the district council;

(b) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority ;

(c) a local probation board for an area any part of which falls within the area of the authority;

(ca) the Secretary of State in relation to his functions under sections 2 and 3  of the Offender Management Act 2007, so far as they are exercisable in relation to England;

(cb) any provider of probation services that is required by arrangements under section 3(2)  of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) a youth offending team for an area any part of which falls within the area of the authority;

(da) the National Health Service Commissioning Board;

(db) any clinical commissioning group for an area any part of which falls within the area of the authority;

(f) a person providing services in pursuance of section 68  of the Education and Skills Act 2008 in any part of the area of the authority;

(fa) the governing body of a maintained school that is maintained by the authority;

(fb) the proprietor of a school approved by the Secretary of State under section 342  of the Education Act 1996 and situated in the authority’s area;

(fc) the proprietor of a city technology college, city college for the technology of the arts or Academy situated in the authority’s area;

(fd) the governing body of an institution within the further education sector the main site of which is situated in the authority’s area;

(fe) the Secretary of State, in relation to the Secretary of State’s functions under section 2  of the Employment and Training Act 1973.

The CPP guidance

Section 1(4) of the Act provides that a ‘local authority in England must have regard to any guidance given by the secretary of state as to the performance of the duty under subsection (1)’.

The most relevant statutory guidance is Applying Corporate Parenting Principles to looked-after children and care leavers: statutory guidance for local authorities (‘Applying the CPP’).

Applying the CPP makes clear, on page 4, that it is intended to be read alongside, and not substitute, existing statutory guidance at volumes 2 and 3 of the Children Act 1989 Guidance and Regulations. It does two things:

  • first, it provides a really useful explanation of the purpose of the CPP and how they are to be applied and implemented;
  • second, it provides helpful examples of how the CPP can be implemented, in a way that is designed to encourage and sanction innovative approaches, not just to meeting needs but, above all, to promoting the welfare of relevant children and young persons.

Applying the CPP is, of course, required reading for all those in local authorities (officers and members) whose functions touch upon relevant children and young persons and, also, for relevant officers and members of ‘relevant partners’. Not only that, as a statutory ‘relevant consideration’, that is required to be taken into account, those who make decisions affecting relevant children and young persons will need to be able to show that they properly understood Applying the CPP,took it into account and acted in accordance with it unless they had a good reason to take a different course.

As ever, the best way, by far, of demonstrating this thought process is by making a contemporaneous record of it, within the document that records the decision, or elsewhere in the associated paperwork.

Other guidance

Get in on the Act, is a general guide, providing an overview – rather like an explanatory note – of the Act and what each section provides.

The Corporate parenting resource pack  is a (non-statutory) good practice guide, published by the Local Government Association. It emphasises that ‘[e]very councillor and officer within a council has a responsibility to act for [looked after] children and young people as a parent would for their own child’ and gives many useful examples of good practice, in this regard.

It also makes the useful practical suggestion that all councillors and members of all committees ‘have a responsibility to consider how reports before them impact upon children in care and care leavers’ (page 5). Accordingly, it is worth considering including in all formal reports for decision-making, some reference to the CPP and to how what is proposed may affect relevant children and young people.

As its title suggests, Support for care leavers resource pack, is focused more on sections 2 and 3 of the Act although, of course, section 1 and the CPP are highly relevant to those sections, and all other provisions elsewhere that bear upon the support provided for care leavers.

The NRPF (No Recourse to Public Funds) Network website contains a useful reminder that the CPP do apply to trafficked and migrant children and explains why/how those particular categories of (particularly vulnerable) children should be supported.

Children England provides at a high-level summary of main provisions of the Act, but a useful and clear one.

It is also worth noting, in this connection, that there is further statutory guidance on sections 2 and 3 of the Act, to which the CPP has some relevance:

Which children and young persons do the CPP apply to?

In short, the CPP apply to ‘looked after’ children, ‘relevant children’ and ‘former relevant children’.

Section 1(2) of the Act defines these RCYP as:

  • ‘looked after children’ within the meaning of section 22(1) of the Children Act 1989, ie children who are in the local authority’s care, or who are provided with accommodation in the exercise of any social services function other than under sections 17 (family services), 23B (accommodation for ‘relevant children’) and 24B (accommodation for ‘former relevant children’ and others) of the Children Act 1989;
  • ‘relevant children’ within section 23A(2) of the Children Act 1989, ie
    • 16- or 17-year old children; who
    • are not ‘looked after’ but were ‘eligible children’ immediately before last ceasing to be ‘looked after’; unless and until
    • they have lived for a continuous period of at least six months with their parent, or a person with parental responsibility for them or (when they were in care) a person named in a child arrangements order (made before the care order was made) as a person with whom the children was to live; although
    • should those arrangements break down and the children cease to live with the person concerned, the children again become  ‘relevant children’; or
    • they are not subject to a care order, but were detained or in hospital when they attained the age of 16 and, immediately before that, had been ‘looked after’ for a period or periods totalling at least 13 weeks, which began after the children reached 14 and did not comprise a series of pre-planned short-term placements;[1]
  • Persons aged under 25 who are ‘former relevant children’ within section 23C(1) of the Children Act 1989, ie
    • children who have been ‘relevant children’ and would still be ‘relevant children if they were under 18, in relation to whom the local authority was the last responsible authority; and
    • children who were being ‘looked after’ by the local authority when they turned 18 and immediately before ceasing to be ‘looked after’ were ‘eligible children’ (see above).

Which local authorities are under the duty?

See section 1(3) of the Act:

  • county councils;
  • district councils;
  • London borough councils;
  • the Common Council of the City of London (in its capacity as a local authority);
  • the Common Council of the Isles of Scilly; and
  • a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009 (these are two or more local authorities that have combined together via an order made by the secretary of state, such as the Greater Manchester Combined Authority, North-East, Liverpool City Region, Sheffield City Region and West Yorkshire).[2]

When and how do the CPP apply?

Section 1(1) of the Act imposes the CPP on local authorities whenever they are ‘carrying out functions’ in relation to RCYP.

A local authority’s ‘functions’ are ‘all the duties and powers of a local authority; the sum total of the activities Parliament has entrusted to it. Those activities are its functions’: Hazell v Hammersmith & Fulham LBC [1992] 2 AC 1 at 29F.

Accordingly, for all practical purposes, the CPP apply whenever a local authority does anything that could affect RCYP, under its existing responsibilities.

It is important to bear in mind that:

  • first, the CPP do not replace or extend existing responsibilities: ‘The CPP are intended to inform how a local authority carries out those existing responsibilities….’ (paragraph 2.4 of Applying CPP);
  • second, on the other hand, the duty in section 1(1) is expressed as a duty to ‘have regard to the need’ to (for example) ‘act in the best interests, and promote the physical and mental health and well-being’ of RCYP. This betokens that the CPP will be more relevant in some contexts than in others. Paragraph 2.6 of Applying CPP explains that, ‘Local authorities will need to consider the extent to which the CPP are relevant to a particular service area or exercise of a particular function. This should be a reasonable and proportionate evaluation based on the extent to which the service/function is being carried out in relation to looked-after children and/or care leavers’.

 Applying the CPP draws attention to the breadth of the scope of the relevance of the CPP but, also, to the need for a proportionate approach, in that the CPP will not always be relevant to every kind of decision (and not every facet of the CPP will be relevant to every decision that may affect RCYP):

3.4 The services that local authorities deliver can be broadly categorised into 14 different types of service. The service areas where consideration of the CPP are of most relevance are: education, social care, housing, libraries, leisure and recreation, strategic policies (such as health and well-being plans) and local tax collection.

3.5 The seven other types of service provided by local authorities include highways, transport planning, passenger transport, environmental health, waste collection, waste disposal and town and county planning. Looked-after children and care leavers access these services as residents of the local authority area, regardless of their legal status. These services are less likely to require differentiated service for looked-after children or care leavers and therefore the need to have regard to the CPP will either not apply or apply only in a limited way. This is because it may not possible to do anything towards meeting one or more of the identified needs or, although it may be possible, it is not appropriate to do so.

3.6 The way in which a local authority operates its corporate services is important to consider in relation to the principles. For example, the way a local authority acts as an employer can have an impact, such as by ring-fencing apprenticeships for care leavers. These opportunities can be provided in any department of the council regardless of the function it performs. For example, there is no reason why a care leaver could not be take up an apprenticeship opportunity in the highways department. All services can have a role in providing these opportunities for looked-after children and care leavers. This is different from providing a differentiated service, for instance, a differentiated service for looked-after children or care leavers in relation to a particular function such as waste collection.

Annex 3 of Applying CPP identifies the areas where consideration of the CPP:

  • should generally apply, as being education, social care, housing, libraries, leisure and recreation and local taxation collection; and
  • are less likely to apply, as being highways, transport planning, passenger transport, environmental health, waste collection, waste disposal and planning applications.

[1] Children Act 1989 s23A(2); Care Leavers (England) Regulations 2010 SI No 2571 reg 3 and The Children Act 1989 Regulations and Guidance, Volume 3: Planning transition to adulthood for care leavers).

[2] See the relevant Parliamentary Briefing Paper at http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN06649.

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