Birara, R (on the application of) v London Borough of Hounslow

A local authority’s duties to a former relevant child ordinarily end at 21, but the education-support duty continues where the agreed pathway plan sets out education or training extending beyond that age. A pathway plan must be a detailed operational plan. It should identify the agreed goal, the steps and objectives needed to achieve it, responsibility and timescales, and progress on review. A local authority cannot rely on deficiencies in its own plans to avoid the consequences of the statutory scheme. Where a policy confers a discretion to support education beyond 21, the authority must consider that discretion in the individual circumstances, including pregnancy or childbirth. An incorrect focus on immigration status, or failure to consider the relevant discretion, renders the decision unlawful.

The claimant, a former relevant child supported by the defendant under the Children Act 1989, challenged the decision to end her support after her twenty-first birthday. She sought continuing assistance with education, including childcare-related costs, while pursuing a route towards nursing qualification. The council relied on inadequate pathway plans, its policy on support beyond age 21, and the claimant’s immigration status. The claim also raised the relationship between the statutory leaving-care regime and support available to failed asylum seekers, but the claimant’s immigration position changed during the proceedings and that issue became academic. The central issues were whether the education duty continued and whether the council had lawfully exercised its discretion.

1. The claim succeeded in part. The defendant was required to prepare a new pathway plan. The court did not determine the relationship between the leaving-care provisions and support under the immigration legislation because that issue had become academic and the Secretary of State had not made submissions.
2. Under section 23C of the Children Act 1989, duties to a former relevant child ordinarily cease at 21. The education-support duty continues where the pathway plan sets out a programme of education or training extending beyond that birthday, for so long as the programme is pursued. A reasonable interruption may be disregarded where the authority is satisfied that the programme will resume as soon as reasonably practicable.
3. A pathway plan must provide a sufficiently detailed operational account of the agreed educational objective. It should identify the start and end points, the steps and objectives along the route, responsibility and timescales, and the young person’s progress on each review. The plans here merely recorded successive short-term steps and did not show the overall route, progress or the effect of pregnancy and childbirth.
4. The council had wrongly allowed mistaken assumptions about the claimant’s immigration status to overshadow assessment of her educational needs. It also could not rely on omissions and deficiencies in the pathway plans to contend that no programme had been agreed.
5. The council’s policy permitted support beyond 21 in exceptional circumstances. Pregnancy and childbirth were identified as possible exceptional circumstances. The council failed to consider that discretion, or whether it should depart from the policy, in light of the disruption to the claimant’s education. That failure infected the decision to terminate support.
6. The court therefore ordered preparation of a new pathway plan. The defendant was ordered to pay 80 per cent of the claimant’s costs, with detailed assessment for public funding purposes.

First-instance judicial review. Permission was granted by a single judge on 24 February 2010. The Administrative Court granted relief by ordering preparation of a new pathway plan and made a costs order.