R (A) v Leicester City Council and the London Borough of Hillingdon [2009] EWHC 2351 (Admin) (only on Lawtel) is an attempt to answer the “interesting question” posed by the Court of Appeal in R (Liverpool CC) v LB Hillingdon and AK (interested party) [2009] EWCA Civ 1702 (noted by us here), namely, whether more than one local social services authority can owe a duty under s.20, Children Act 1989, to the same child at the same time.
Ms A is an orphan from Somalia who arrived in the UK when she was 16 1/2 years old. She claimed asylum upon her arrival in the UK, but this was rejected on the basis that she was a child. Upon the determination of her asylum claim she was released into the care of the London Borough of Hillingdon (Hillingdon). She immediately told social workers that she wanted to move to Leicester to live with a family of Somalis that she knew.
She moved to Leicester – of her own volition (such that Hillingdon thought she had run away and reported her to the police as a missing person) – in August 2007 and approached Leicester City Council (“Leicester”), and the legal conundrum began.
Hillingdon took the view that, by leaving their area voluntarily, Ms A had ceased to be owed any duty by them under s.20 Children Act 1989 and, in their view, Leicester now had to care for her as they saw fit. Leicester did not agree with this, pointing out that Hillingdon had not undertaken any assessment of her needs and, hence, could not have discharged any duties owed to Ms A. The two local authorities could not agree as to the way forward and Ms A was forced to issue judicial review proceedings against them both, seeking to determine which one of them was responsible for assessing and meeting her needs.
The case came on before Collins J in April 2008 when his Lordship expressed himself in robust (but entirely appropriate terms).
“This is a disgraceful squabble between the two councils at the expense of a vulnerable young persons”
Following this, a consent order was produced which had the effect at least of requiring a proper s.20 assessment to be carried out and identified needs to be met, subject to the local authorities arguing amongst themselves as to who should pay for it. Permission was subsequently granted to move for Judicial Review against both local authorities.
The claim was allowed. It was necessary for Hillingdon to have carried out an assessment under s.20, Children Act 1989. As Dyson LJ said in the Liverpool case “an assessment of needs will always be required.” Unless and until that was done, there could be no discharge of the s.20 duty. The duty “endures until such an assessment has taken place” and, depending on the result of the assessment, the duty may “survive such an assessment.” (at [48]).
Importantly, the mere fact that Ms A moved away from Hillingdon did not end their duty. The whole purpose of s.20 was to protect vulnerable children. The local authority must “display the infinite patience of a good parent and not take advantage of what may be impulsive and unwise acts to absolve themselves of [that] duty.”
That failing did not, however, absolve Leicester. Leicester could not refuse to offer support to Ms A. They were on notice that Hillingdon were denying responsibility and, during that time, Ms A was present in Leicester’s area. It should not have been “beyond the wit of two local authorities with access to legal advice and substantial – albeit not unlimited – resources to devise plans and contingencies for such situations” (at [51]). It was unlawful to defer the assessment until the two authorities could sort out who would discharge any identified needs. There was no reason why Hillingdon and Leicester could now owe concurrent duties to Ms A (at [55])
This is an important case. It should (although I’m not hopeful) end the disgraceful attempts by some social services authorities to avoid their s.20 obligations by letting/moving/encouraging a child to move to another area. If they can each owe the duty then there is no incentive to try these sorts of things. The appropriate approach is, as Collins J said, for the two authorities to agree that one of them will do the assessment and meet any identified needs on a “without prejudice” basis and to enable them to fight about the costs later if needed.
i guess it was always likely to be held that in failing to do a s20 assessment, the first la had failed in their duty. it is encouraging that the second la were found to have failed too.