This is going to be a very short post on a very long judgment – 275 paragraphs worth. The main case was on the right to education under article 2 of the First Protocol to the European Convention on Human Rights, in relation to a local authority’s failure to provide a school place. However, there are some significant findings on Council’s obligations in relation to article 2, and Children Act 2004 when considering and making an out of borough placement in temporary (or indeed permanent) accommodation of a homeless family, as an extension or elucidation of Nzolameso. It is this we will focus upon.
E, R (on the application of) v London Borough of Islington [2017] EWHC 1440 (Admin)
E is a nine year old child, who brought the claim through her mother, C. C is profoundly deaf, has no speech and is almost illiterate. C, with her children, had fled domestic violence in Southwark in May 2015. Assisted by a charity SW she applied to Islington as homeless. Islington initially declined any duties on the basis that they were owed by Southwark (parenthetically, as this does not feature in the judgment, we will note the complete unlawfulness of that.)
C and family were found a refuge place in Islington by SWA in June 2015. SWA notified Islington of E’s need of educational provision (C not being able to do so). Islington did nothing between early June and September 2015. E then started school in Islington, but only for 7 weeks, as Islington accepted a homeless duty to C in October 2015 and then at the beginning of November provided temporary accommodation in London Borough of Hammersmith and Fulham, as a result of which E was again out of school. Islington did send a s.208 notice to H&F notifying them of the family’s presence in the borough, but as far as educational needs went, all that notice did was identify a school age child.
The notice gave no indication of E’s current educational arrangements, or of any plans or proposals that Islington may have had for her future education during the period of the temporary placement out of borough. It did not suggest which of the two authorities should assume primary responsibility for the discharge of the statutory obligation to educate her, or suggest any arrangements (formal or otherwise) whereby the two authorities could co-ordinate over E’s educational needs to ensure they were met promptly and that she could maintain a reasonable measure of educational continuity.
In fact, the notice made no mention of education at all. Of particular significance, it gave no explicit or implied indication of the need for fresh educational provision to be made by Hammersmith and Fulham, and failed to spell out the critical piece of information that any existing arrangements for her education would necessarily be disrupted by the temporary transfer.
The upshot was that nothing was done by either Islington or H&F (not a party here) about E’s education until late December 2015.
In April 2016, Islington transferred the family to temporary accommodation in Islington. But somehow again failed to make any arrangements for E’s education for another 8 weeks (after a protocol letter).
To cut to the chase (and omit the first hundred or so paragraphs), following Lord Kerr in A v Essex County Council (National Autistic Society intervening) [2011] AC 280; [2010] UKSC 33 the High Court found that
a failure to take steps to provide education when the state authority responsible for providing it is aware of the absence of the pupil from any form of education could in certain circumstances give rise to a breach of the right.
Islington’s failings, on the facts, gave rise to such a breach, including – crucially for our purposes – its failure to adequately notify H&F or take any steps with H&F to ensure E’s education while in temporary accommodation in H&F.
There are some paragraphs of a general nature on a local authority’s responsibilities when considering or arranging out of borough (or more distant) temporary accommodation, drawing on the Supreme Court judgment in Nzolameso v Westminster City Council (Secretary of State for Communities and Local Government and another intervening) [2015] UKSC 22 (our report).
Paragraphs 106 -123 of the judgment are key, noting Chapter 4 of Homelessness Code of Guidance for Local Authorities 2006 on out of borough placements:
“Housing authorities will need to liaise and work collaboratively with the relevant service providers to ensure that appropriate arrangements are put in place and monitored. When households are placed in temporary accommodation, it is recommended that housing authorities offer to liaise with the relevant health, education and social services departments in the areas in which the households are temporarily housed. Liaison will be particularly important in cases where households have to be accommodated in the district of another housing authority.”
Then there is the statutory duty under section 11(2) of the Children Act 2004 to ensure that
“(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in discharge of their functions are provided having regard to that need”.
The Secretary of States submissions in Nzolameso, endorsed by Baroness Hale, stressed:
that the sending authority must address its mind to, amongst other matters, the need to minimise educational disruption, and must record its reasoning, and be in a position to provide evidence of its contemporary reasoning in court, if called upon to do so. It must be in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which it reached its decision.
And so, the High Court reaches the following general conclusions, at paras 120 – 122:
The upshot of this analysis is that any local authority contemplating the transfer of a school-age homeless child into temporary accommodation out of borough is under a Nzolameso duty to make contemporary records of its decision-making and its reasons, capable of explaining clearly how it evaluated the likely impact of the transfer on the educational welfare of the child, in accordance with its primary obligation under section 11(2)(a). In addition, however, by virtue of section 11(2)(b), it must be able to demonstrate, by reference to written contemporaneous records, the specific process of reasoning by which it reached the decision (if it did) that the authority to which it was delegating its housing obligations would secure the child’s educational welfare, either through making appropriate arrangements for school admission, or by making available alternative educational provision under section 19 of the Education Act 1996.
All of this has obvious implications for the existence of a legal duty on the sending authority to liaise with the education department of the receiving authority. In consequence, it has a direct bearing on the question whether, in the absence of any such liaison, Islington remained the authority that bore the primary responsibility for securing E’s Convention right to education. Putting the point at its very lowest, the fact that the sending authority is under a duty to reason and properly record its decision-making process under section 11(2)(b) provides support for the proposition that its educational obligations are not automatically terminated by the mere fact of a temporary transfer.
If the sending authority is required to record the detail of its reasoning concerning the educational welfare of the child during the period of temporary transfer, then it must, it seems to me, be under a corollary duty to liaise with the receiving borough’s education department in order to satisfy itself (and, if necessary, the court) that it has adequately performed its duty under section 11(2)(b). To do this, it must be able to show it has taken steps to ensure that adequate educational arrangements have been or would be put in place by the receiving authority for the duration of the transfer. Absent evidence of such liaison, the sending authority could not be in a position to show that it properly considered the impact of the transfer on the child’s educational welfare, and reasonably satisfied itself that this would be safeguarded by the receiving authority. If there has been no adequate communication between the two authorities, then the sending authority cannot know (or be in a position to demonstrate that it has even considered) whether or not the receiving authority has put appropriate arrangements in place, or has plans to do so. Thus, one of the legal obligations binding on an authority proposing to transfer a homeless school-age child out of borough for the purposes of providing temporary accommodation is the obligation to liaise adequately with the education department of the receiving borough, for the purpose of ensuring that the receiving borough has put (or will put) working arrangements in place to maintain educational continuity for the child; coupled with a legal obligation to make adequate records of the steps it has taken in this regard, and of the process of reasoning by which it has concluded that educational continuity would be maintained.
On this specific case, there was also a challenge to three welfare/social services assessments, two of which were held to be lawful and one unlawful.
But for housing lawyers, it is the intersection of the education challenge and Children Act duty with homeless out of borough decisions that is key.
There is a duty to evaluate the impact on the education of school age children, to record that decision and reasoning, including how the receiving authority would secure the child’s educational welfare.
(A response along the all too familiar lines that homeless applicants hear – ‘there are plenty of schools in Birmingham (or Stoke, or Milton Keynes, or Margate)’ won’t be sufficient).
There is a duty on the authority to liaise with the receiving authority to satisfy itself that the s.11(2)(b) Children Act duty has been fulfilled, including taking steps to ensure that the receiving authority has put arrangements in place.
(This does not happen, or at least rarely)
This is significant for out of borough, let alone out of London, placements for temporary accommodation, in circumstances where many local authorities don’t even manage to fulfil their statutory obligation for a s.208 notification to the receiving authority. And, unless and until appealed or court of appeal decision on another matter, these are solid grounds for challenging
cursory, unreasoned and unsupported out of borough accommodation decisions involving school age children.
As somebody who lives far from any unitary authority, and in a part of the country where even an in-district placement could put a child a very long way from their school, my experience has always been that 4.17 of the Code of Guidance is ignored (or at best given lip-service). It seems clear to me that it requires (in as much as guidance can “require”) the housing authority to contact the education authority if there is any question of the children’s education being disrupted because of being placed in temporary accommodation. The fact that the guidance says this is “particularly important” in out of borough placements, confirms that it is still relevant to placements within the district. In fact, around here there are quite a lot of scenarios where temporary accommodation in a neighbouring authority could actually make school attendance easier than using the available accommodation within the district.
This judgment is really helpful in effectively giving extra weight to the Code of Guidance – we now have authority rather than guidance to say that “one of the legal obligations binding on an authority proposing to transfer a homeless school-age child out of borough for the purposes of providing temporary accommodation is the obligation to liaise adequately with the education department of the receiving borough, for the purpose of ensuring that the receiving borough has put (or will put) working arrangements in place to maintain educational continuity for the child; coupled with a legal obligation to make adequate records of the steps it has taken in this regard, and of the process of reasoning by which it has concluded that educational continuity would be maintained.” Obviously I’d like to be arguing that it’s not just an out of borough duty, but one that arises where the temporary accommodation is far enough away to affect school attendance.
But as ever the big problem is that local authorities aren’t going to be held to account because of the very limited specialist housing advice (especially Legal Aid) availability outside cities and large towns.