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06/05/2010

M not G

TG, R (on the application of) v London Borough of Lambeth [2010] EWHC 907 (Admin)

Or when is a child in need not a child in need?

This was the judicial review of Lambeth’s decision not to support TG as a ‘former relevant child’, he being over 18. The question was, quite simply, had TG been a ‘looked after child’ at any point before he was 18, in particular what functions Lambeth was exercising when it provided TG with accommodation.

TG was living with his mother until March 2006. In 2004 he had come into contact with Lambeth’s Youth Offending team, there followed a sentence of a supervision order in 2005. From February 2004 to April 2007, TG had been under the supervision of 8 different social workers attached to the Youth Offending Team.

From mid 2005, TG had been insisting to his Youth Offending Team social workers that he could not live with his mother, that she was throwing him out, and asking for a reference to the Housing Department HPU. His mother, however, reported that although they were having difficulties, she was not throwing him out and that he could stay.

Eventually, in March 2006, his mother told the YOT social worker that she was under a lot of pressure to write a letter for the HPU, she didn’t wish TG to leave home, but as he insisted he could leave but there would be no return if he did.

The YOT social worker completed a report and gave it to TG to take to the HPU:

The Report is headed “Homelessness and Social Vulnerability Report. To be completed by the Youth Justice Team”. The first section is entitled “Reason for homelessness and accommodation history”; it reads as follows:
“I understand that the relationship between [T] and his mother has broken down to the point that it is not advisable that they both live in the same household.
[T] has been living with his mother since the age of 9. His mother emigrated from Jamaica when [T] was quite young and was looked cared for [sic] by his father.
The relationship between his parents has since broken down. However, his father passed away sometime ago.”
The next section headed “Details of any periods in Care/Looked After”; this states “No”. Details of family contacts are given and a brief summary of the Claimant’s contacts with the YOT. Towards the end of the three page document it is said that the Claimant was able to fend for himself, but in the final section before the signature, under the heading “Other information”, it is said that, “This young person is in desperate need of housing and would hope that his housing need is met as he fulfils the Child in Need criteria…”.

TG was accommodated in a hostel by the HPU and remained in temporary accommodation provided by the HPU until he was given an AST by the South London YMCA in October 2006. This tenancy was terminated by possession order in September 2009 on the basis of anti social behaviour.

On being refused assistance as a ‘formerly looked after child’ TG brought the JR proceedings.

The YOT social worker filed a witness statement, admitted a hearsay due to illness, which denied ever considering TG to be a ‘child in need’ and stating that if she had, she would have referred him to Children and Young Persons Services. It wasn’t clear how that sat with the final line of the report she wrote. However, the key issue was whether the YOT social worker was exercising a social services function in this apparent assessment of TG as a ‘child in need’, thus making the referral to the HPU akin to  the position in R (G) v Southwark LBC [2009] 1 WLR 1299 (our report here), or not, in which  case the situation would be akin to R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 535 (our report here). I.e. Should the referral to the HPU be properly taken as asking Housing to assist in the discharge of a s.20 Children Act duty by Social Services, or did this fall under the provision of accommodation by Housing under Part VII Housing Act 1996 without Social Services involvement, as a separate department, with no s.20 Children Act referral or duty arising?

Held:
Youth Offending Teams were established and operated under s.39 of the Crime and Disorder Act 1998. This was separate and distinct from the Social Services function of a local authority under Local Authority Social Services Act 1970, Children Act 1989 and Children Act 2004, even though there was a requirement that at least one person with experience of social work be included in each team and that in this case those who had dealt with TG were all qualified and experienced social workers. The social worker’s description of the activities of the YOT was accepted:

The purpose of the team is to provide community intervention for young persons sentenced by the court. All the work comes directly from the court. We do not receive referrals from any other source. The court may ask for pre-sentence reports or for us to make recommendations. We are not like the CYPS [sc. “Children and Young People’s Services”] where others can make referrals to us. The Court Team see any young persons picked up overnight, prepare bail packages for them and can make suggestions to the Bench. I am part of the next stage after the Court has made a community sentence. My team supervise the young person in the community, providing information and reparation, i.e. paid or unpaid work, group work and addressing specific issues about offending behaviour. Depending on the severity of the young person’s offence, he might be on an Intensive Supervision Sentencing Programme (“ISSP”) which the Claimant was on at one point, when on 6 April 2005, he was made the subject of a Supervision Order for 12 months and placed on such a programme.

It was acknowledged that the YOT was now one of the divisions of Children and Young Persons Services, but it was distinct from the Children and Families division dealing with social services functions in relation to children.

So:

In my judgment, the essence of the decision in M is that the duty arises when the relevant factors come to the attention of those charged within the local authority with children’s social services. While the supervising officer of the YOT is the DCS [Director of Children’s Services] the functions of the YOT remain those assigned by the CDA 1998 which are described in practical terms in the draft witness statement of Ms Acquah. Those functions are directed to the working with offenders sentenced by the courts and working through the process of those sentences; they would not ordinarily be considered as part of the social services functions of the authority as that term is commonly understood. As in M, the official in the YOT looked to the Housing Department to meet the need and those charged with social services provision were never engaged.

Given that it has been decided in M that a firm line has to be drawn in resolving when a local authority is exercising its social services functions, it seems to me that the line has to be drawn by saying that the duty is not triggered until the child comes to the attention of the division of the local authority responsible for those functions in the ordinary course. The peripheral attention of a duly qualified official of a different team will not do.

Although just as in in M, “with the benefit of hindsight, the Housing Department or the YOT should probably (as a matter of good practice) have referred the Claimant here to the team in charge of children’s social services”, this had not happened and, as in M, it was not the Court’s place to decide that this constituted bringing the claimant to the attention of social services when this had not in fact happened.

Accordingly, the social services function of the local authority were not engaged. TG’s accommodation was under Part VII Housing Act 1996, not s.20 Children Act 1989. TG was not a ‘child in need’ during the period of accommodation and was therefore not a ‘formerly looked after child’. M rather than G.

Claim dismissed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

3 Comments

  1. kjetilniki

    the youth offending teams are deliberately founded in SSD because of the need to link with other ss functions.

    compare the massive restriction this ruling makes for a s20 appln with making a homelessness application :-
    “applications can be made .. to any department of the LA. They need not be expressed in any particular form;”

    To restrict s20 to applications to staff within ssd dealing with this [as opposed to SSD]is nonsense. I hope that Steel & Shamash appeal.

    Reply
  2. NL

    I agree that it is less than ideal. The difficulty is that the proposition on the ‘separation of powers’ has House of Lords authority (M). And not all authorities are unitary, combining both housing and social services functions.

    However, it is something of a step from separate housing and social services functions to separate functions/departments within a ‘Children and Young Persons Services’ directorate, perhaps a longer step than was acknowledged in this case.

    Reply
  3. kjetilniki

    http://www.yjb.gov.uk/en-gb/yjs/Youthoffendingteams/
    ” Youth justice system
    Youth offending teams – Who are they? What do they do?
    The youth offending teams (YOTs) are key to the success of the youth justice system .
    There is a YOT in every local authority in England and Wales. They are made up of representatives from the police, Probation Service, social services, health, education, drugs and alcohol misuse and housing officers. Each YOT is managed by a YOT manager who is responsible for co-ordinating the work of the youth justice services.
    Because the YOT incorporates representatives from a wide range of services, it can respond to the needs of young offenders in a comprehensive way. The YOT identifies the needs of each young offender by assessing them with a national assessment. It identifies the specific problems that make the young person offend as well as measuring the risk they pose to others. This enables the YOT to identify suitable programmes to address the needs of the young person with the intention of preventing further offending.”

    It would appear that they may exercise ss functions.
    further and deeper investigations might assist in another case should TG not be appealed.

    FoI requests have revealed that CMHTs which will contain a dedicated social worker will be exercising functions for the relevant local authority covering such things as s21 NAA48.

    Reply

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