O, R (on the application of) v East Riding of Yorkshire County Council

A child is “looked after” under the Children Act 1989 only where the statutory criteria are met, including accommodation provided in the exercise of social services functions. Accommodation at a residential school arranged under a statement of special educational needs is not social-services accommodation merely because it also meets social-care needs. A local authority does not unlawfully sidestep its duties under the 1989 Act by complying with its separate duties under the Education Act 1996. Termination of looked-after status must nevertheless receive anxious scrutiny and depends on whether the statutory accommodation criteria remain satisfied. The educational-welfare duty under section 22(3A) does not alter the definition in section 22(1).

The claimant, a 14-year-old boy with autism and ADHD, had received respite accommodation and was therefore a looked-after child under the Children Act 1989. Following judicial review proceedings, the Council arranged a 52-week residential placement at Horton House under a statement of special educational needs made pursuant to the Education Act 1996. The placement met his educational and social-care needs, and respite accommodation was no longer required.

The Council decided that he would cease to be looked after when he entered the placement. The claimant argued that the section 20 accommodation criteria continued to apply, or alternatively that the decision was unlawful. The central issue was whether looked-after duties could continue despite the residential educational placement.

1. Application dismissed. The claimant ceased to be a looked-after child when he entered Horton House. The accommodation was provided pursuant to the statement of special educational needs under the Education Act 1996, not in the exercise of social services functions under the Children Act 1989 (paras 70–71, 85–86).
2. The statutory definition in section 22(1)(b) was decisive. The issue was not whether the claimant still needed to be “looked after” in a general sense, or whether the placement met social and educational needs, but whether he received accommodation from the Council in the exercise of social services functions. The definition was not a matter of labelling (paras 70, 75).
3. The authorities concerning attempts to avoid section 20 duties by using section 17 or housing legislation were distinguishable. Those cases concerned children who required accommodation because they had nowhere else to live. Here, the family had been able to care for the claimant and the dispute concerned the provision of specialist residential education (paras 72–73).
4. Section 85 reinforced this conclusion. Its requirement to consider whether social-services functions should be exercised in relation to a child accommodated by an education authority indicated that residential-school pupils were not automatically looked-after children under sections 20 and 22 (para 74).
5. Termination required anxious scrutiny. The criteria for ceasing to be looked after were not materially different from those for becoming looked after. The relevant question remained whether the child was accommodated under section 20 or subject to a care order under section 31 (para 82).
6. The Council had previously provided respite because the parents needed temporary relief, not because they were permanently unable to accommodate the claimant. Once Horton House met his accommodation needs and respite was no longer required, the Council rationally concluded that section 20 accommodation was no longer necessary. It had considered its other duties with anxious scrutiny and had not acted unlawfully (paras 83–86).
7. Section 22(3A), the duty to promote educational welfare, could operate alongside the Education Act duties but could not alter the statutory definition of a looked-after child or make the Children Act duties paramount over the detailed special-educational-needs scheme (paras 71, 76, 82).

The judicial review proceedings were issued in the Administrative Court in August 2008. Interim and accommodation orders were made by Goldring J, Wyn Williams J, Bennett J and Cranston J. Permission for the amended judicial review grounds was granted by Elias LJ. Mr Justice Cranston dismissed the claim.