M, R (on the application of) v London Borough of Barnet

A local authority’s decision whether its duty to accommodate a child under Children Act 1989, section 20, is engaged is subject to ordinary public law review. The court must assess whether the authority acted irrationally or perversely, took account of irrelevant matters, or ignored relevant matters. It must not substitute its own view of whether accommodation should be provided. Where a parent is willing and able to provide suitable accommodation and care, a local authority may rationally conclude that section 20(1)(c) is not engaged because the child does not wish to return home. The assessment must be based on the evidence available when the decision was made.

This was a renewed application for permission to seek judicial review concerning a child accommodated with the assistance of the London Borough of Barnet. The claimant argued that Barnet had unlawfully treated the accommodation as support under Children Act 1989, section 17, rather than accommodation under section 20. She alleged both that Barnet operated an unlawful policy avoiding section 20 duties and that its decision on her circumstances was unlawful.

The central issues were whether Barnet had adopted an unlawful policy and whether its conclusion that section 20 was not engaged was irrational, perverse, or affected by legal error.

1. The application for permission to apply for judicial review was dismissed. The court found no arguable case that Barnet had adopted a policy designed to avoid its duties under Children Act 1989, section 20. The relevant protocol dealt with the procedure after the authority had decided whether duties arose under section 17 or section 20, while a separate route map addressed looked-after children.

2. The court accepted that section 20(1)(c) requires consideration of whether the person caring for the child is prevented from providing suitable accommodation or care. The reasoning in R (S) v London Borough of Sutton [2007] EWHC 1196 (Admin) was understood as applying an objective assessment without substituting the court’s view for that of the local authority. That approach was supported by R (M) v Hammersmith and Fulham [2008] 1 WLR 535.

3. The applicable public law question was whether Barnet’s conclusion was irrational or perverse, whether it considered relevant matters, and whether it took account of irrelevant matters. As stated in G v Southwark [2008] EWCA Civ 877, the court should not second-guess an evaluation legally open to the local authority.

4. Barnet was entitled to rely on the evidence that M’s parents had consistently said they were willing and able to care for her and wanted her to return home. It was not irrational or perverse to conclude that M did not wish to live with parents who could provide suitable accommodation and care, perhaps with assistance. Later evidence suggesting a change in the parents’ position did not establish that the earlier decision had been unlawful.

5. Leave to appeal was refused. Barnet undertook not to terminate the placement for 28 days, or thereafter while an application for interim relief was pending before the Court of Appeal, unless suitable private-sector accommodation was identified.

This was a renewed application for permission to apply for judicial review. The judgment does not state any earlier decision or citation from a lower court.