W, R (on the application of) v Essex County Council

The statutory after-care status of a young person depends principally on whether, and when, he was looked after by a local authority and whether he satisfied the definition of an eligible child. Accommodation provided under section 17 of the Children Act 1989 counted as accommodation for that purpose before the relevant amendment took effect. The amendment excluding section 17 accommodation was not retrospective. A person who ceased to be looked after after becoming an eligible child could therefore become a relevant child and, on reaching 18, a former relevant child. Once that status was accepted, arguments concerning the particular statutory basis for later accommodation were academic. Judicial review is discretionary and need not determine academic issues.

W, who was approaching 18, brought wardship and judicial review proceedings concerning accommodation and the local authority’s duties under the Children Act 1989 and the after-care provisions introduced by the Children (Leaving Care) Act 2000. He had lived with foster carers under section 20 in 2000 and had received accommodation from the authority in 2002, when he was 16. The authority described the latter accommodation as being provided under section 17.

The court considered the effect of amendments made by section 116 of the Adoption and Children Act 2002, the earlier decision in R ex parte B (and others) v London Borough of Hillingdon [2003] EWHC 2075 (Admin), and whether W was an eligible, relevant and former relevant child. The accommodation issue concerning 2003 had largely been resolved by agreement.

1. Status under the after-care code. The court accepted the analysis in R ex parte B (and others) v London Borough of Hillingdon [2003] EWHC 2075 (Admin). The amendment to section 22 of the Children Act 1989, which excluded accommodation provided under section 17 from the definition of a child looked after by a local authority, was substantive rather than merely clarificatory and was not retrospective.
2. Accordingly, W was looked after when he received accommodation in July and August 2002. Because he had been looked after for the prescribed period after reaching 14 and ending after reaching 16, he was an eligible child. When he ceased to be looked after he became a relevant child, and on reaching 18 he would become a former relevant child.
3. For a relevant child, whether accommodation was provided under section 17 or section 20 was irrelevant to the statutory route by which former relevant-child status was obtained. The authority’s decision had therefore been wrongly focused on the statutory basis of W’s 2003 accommodation. It had also wrongly failed to assess him as a relevant child and to provide the associated pathway plan and personal adviser.
4. The remaining challenges were academic. The alleged failure to assess was, on proper analysis, principally a challenge to the merits of the authority’s decision, since the relevant information was before it. The court also noted that the decision-maker under section 20 was the local authority, not the court.
5. By agreement, the court declared that W was a relevant child and would become a former relevant child on attaining 18. The wardship was discharged. No further detailed determination of the pleaded judicial-review grounds was required.

The court added that, after the 2002 amendment, it was strongly arguable that a local authority should distinguish between section 17 and section 20 accommodation and consider the effect of its choice on the duties owed to the child. It also considered it strongly arguable that the authority had misconstrued W’s wishes, but that issue had not been pleaded and the authority had not been given an opportunity to provide further reasons.