RO, R (on the application of) v East Riding of Yorkshire Council & Anor

Looked-after-child status does not automatically end when a local authority provides a residential special educational placement. The Children Act 1989 and Education Act 1996 regimes may operate together. The authority must assess the child’s social-care and educational needs, including whether the parents are prevented from providing suitable care or accommodation. Where the placement is required substantially for both purposes, accommodation at the school may continue to be accommodation under the Children Act. An authority commits legal error if it assumes that an SEN placement, or the ending of respite care, automatically terminates looked-after status.

RO was a child in need with severe autism and ADHD. He received weekend respite accommodation from East Riding of Yorkshire Council under section 20 of the Children Act 1989 and consequently became a looked-after child. Following judicial review proceedings and a reassessment of his special educational needs, the council arranged a specialist residential placement at Horton House under a statement made pursuant to the Education Act 1996. It then ended his looked-after status.

Cranston J dismissed the claim, holding that the accommodation at Horton House was provided under the Education Act rather than the council’s social-services functions: [2010] EWHC 489 (Admin). The central issue on appeal was whether the residential placement, required for both RO’s educational and social-care needs, continued to engage section 20 of the Children Act.

1. The appeal was allowed unanimously. The council had erred in law by assuming that the SEN placement automatically supplanted RO’s looked-after status.
2. A child is looked after where the local authority provides accommodation in the exercise of social-services functions, including under section 20 of the Children Act 1989. The Children Act and the SEN regime under the Education Act 1996 lie side by side. Neither statute automatically excludes or supersedes the other. The answer depends on the particular facts, the purpose of the placement, the child’s social and educational needs, and the relevant family circumstances.
3. The Secretary of State’s formulation was accepted as the appropriate approach. A placement provided wholly or mainly to meet special educational needs may be provided solely under the Education Act. However, where the child also falls within section 20(1) or section 20(4), the placement may be provided under the Children Act alone or under both statutory regimes. The local authority must consider all relevant needs and the wishes and feelings of the child and family.
4. On the council’s own assessments, RO required a residential specialist placement for both educational and psycho-social reasons. His parents could care for him at weekends and during holidays, but could not cope with him without the residential care and supervision which the placement supplied. The placement was therefore not wholly or mainly educational. The facts fell within section 20(1)(c), and in any event justified the exercise of the power in section 20(4). Ending respite care did not end the underlying needs which had generated looked-after status.
5. The council had merely assumed that the Education Act placement ended the Children Act status. It had not given anxious scrutiny to whether the same factors continued to require accommodation under section 20. This was a legal error, distinct from simple perversity or irrationality. Departmental organisation and budgetary arrangements could not determine the statutory question. The approach was inconsistent with the anti-sidestepping principle applied in R (G) v London Borough of Southwark [2009] UKHL 26 and with the broad approach to section 20(1)(c) discussed in R (M) v Hammersmith and Fulham London Borough Council [2008] 1 WLR 535 (HL).

1. Court of Appeal (Civil Division): Rix LJ delivered the leading judgment. Smith LJ and Richards LJ agreed. The appeal was allowed: [2011] EWCA Civ 196.
2. Administrative Court: Cranston J dismissed the judicial review claim, holding that the Horton House placement was provided under the statement of special educational needs and that RO was no longer looked after: [2010] EWHC 489 (Admin).
3. Permission stages: Permission to restore the claim was initially refused, but Elias LJ granted permission to appeal after the House of Lords decision in R (G) v London Borough of Southwark.