CO, R (on the application of) v Surrey County Council

A local authority may fulfil its duty to accommodate a child either by providing accommodation under section 23(2) of the Children Act 1989 or by arranging a private placement under section 23(6). The distinction depends on the substance of the authority’s intervention, not merely the practical arrangements.

Where the authority has played a central role in securing the placement, and has not clearly explained that the arrangement is private and unsupported financially by the authority, the placement will ordinarily be treated as accommodation provided by the authority. The court should first determine whether the section 20 duty arose and then characterise the authority’s response.

The claimant, a child with significant behavioural and developmental difficulties, challenged Surrey County Council’s treatment of her move from her mother’s home to her maternal grandmother’s home in November 2009.

She contended that the Council had provided accommodation under sections 20 and 23(2) of the Children Act 1989, making her a looked-after child and entitling her to the associated support. The Council argued that it had merely facilitated a private family arrangement under section 17 or, alternatively, section 23(6). The issues were whether the section 20 duty had arisen and how the resulting arrangement should be characterised.

1. Section 20 duty. The court held that by 5 November 2009 the Council had concluded that the claimant could not continue living with her mother and that, absent her grandmother’s agreement, she would go into foster care. The Council had therefore come under a duty under section 20(1)(c) to provide accommodation.
2. Characterisation of the placement. The correct approach was two-stage: first, determine whether the section 20 threshold was met; secondly, determine whether the Council’s response was an arrangement under section 23(6) or accommodation provided under section 23(2). The Council had initiated and centrally managed the permanent placement. It was exercising public-law safeguarding responsibilities rather than merely brokering a private family arrangement.
3. Informed consent and financial consequences. The Council had not clearly told the grandmother that the arrangement was private or that she would have to seek financial support from the person with parental responsibility. The Kinship Care leaflet instead suggested that the claimant would be treated as looked after. The grandmother therefore had not given informed consent to a private placement. The arrangement was consequently accommodation provided under section 23(2), with the claimant looked after under section 22.
4. The absence of a later assessment of the step-grandfather and the Council’s failure to insist on CAMHS attendance did not outweigh the central evidence. The claimant had sufficient interest to bring the claim. A declaration concerning the historical position was appropriate despite subsequent changes, but financial relief was limited to the period pleaded, beginning three months before commencement of proceedings.