KI, R (On the Application Of) v London Borough of Brent

A local authority must comply with its statutory duties towards a vulnerable child in need. Once the evaluative criteria for accommodation under Children Act 1989, section 20, are met, the duty to accommodate is mandatory rather than discretionary. The authority must assess physical suitability, care, welfare and the child’s wishes, and cannot avoid the duty by characterising a placement as private where it has taken a central role in arranging and managing it. A child remains looked after where the authority continues factually to exercise a significant role in accommodation and care, particularly without following the statutory procedure for ending care. The duty of candour in judicial review is continuing and requires public authorities to disclose material facts and documents, including matters undermining their case. A child looked after for the prescribed period may qualify as a former relevant child entitled to leaving-care support.

K, a refugee who arrived in the United Kingdom as a minor, lived with his uncle in overcrowded accommodation. After the relationship broke down, Brent arranged supported accommodation under circumstances which the court found engaged its section 20 duties. Brent later sought to return K to his uncle, despite the uncle’s reluctance, the continuing overcrowding and K’s opposition.

K challenged Brent’s refusal to recognise the section 20 duty and his resulting status as a former relevant child under section 23C of the Children Act 1989. He also challenged the Council’s failure alternatively to consider treating him as a former relevant child in its discretion. The central issues were whether the section 20 duty had been discharged, whether K remained looked after for the prescribed period, and whether the Council had complied with its duty of candour.

1. Duty of candour. The Council failed to comply with its continuing duty of candour. Public authorities in judicial review must place before the court all relevant information and material facts, whether supportive or adverse, and must maintain procedures enabling their legal teams to obtain and review the underlying records. The failure was especially serious given K’s vulnerability and the statutory context.
2. Section 20 duty. The Council conceded that a section 20 duty arose when K was excluded from his uncle’s accommodation. The court held that the duty was not discharged by arranging or pressuring K to return to the same overcrowded flat. Suitability under section 20 includes the physical suitability of accommodation, including its size and facilities, and must be assessed alongside suitable care, welfare and the child’s wishes. The 2017 assessments were Wednesbury unreasonable because they ignored the overcrowding, the earlier viability assessment, the breakdown in the family relationship and K’s clearly expressed wishes.
3. Looked-after status. The court had to consider what the Council actually did, rather than its description of its conduct. Brent took a central role in arranging the proposed placement, providing financial and housing assistance, convening meetings, terminating the supported accommodation, transporting K to the uncle’s flat and continuing to monitor and manage the situation. It also failed to follow the statutory procedures for ceasing to look after K. K therefore remained looked after until his eighteenth birthday and exceeded the prescribed 13-week period.
4. Former relevant child. Since K was eligible, section 23C applied and Brent owed him the statutory duties towards a former relevant child. The Council was required to take immediate steps to remedy its failure to recognise and provide those duties.
5. Alternative discretion. Although unnecessary to the result, the alternative ground would also have succeeded. The Council had not considered whether to treat K as a former relevant child in its discretion. Its failure to consider that discretion could not be cured by showing that it had provided some assistance, because it could not be said that the same decision would necessarily have been reached had the discretion been conscientiously addressed.
6. The judicial review succeeded on Grounds 1 and 2. Ground 3 was unnecessary, and the court reserved submissions on the form of relief and costs.

First-instance judicial review. Permission was granted by a Deputy High Court Judge on 7 February 2018. The Administrative Court allowed the challenge on Grounds 1 and 2.