AB, R (On the Application Of) v The London Borough of Ealing

A local authority assessing whether a child in need requires accommodation under section 20(1)(c) of the Children Act 1989 must determine whether the accommodation available from the person caring for the child is suitable. The assessment must address that evaluative question, including relevant risks and the proposed role of other carers. The child’s wishes and the availability of a family home are relevant, but neither is determinative. A failure to apply the statutory test makes the assessment unlawful and may invalidate later decisions based upon it. However, the court should not substitute its own assessment merely because accommodation might have been unsuitable. In a factually complex case, more than one lawful evaluative outcome may remain open.

The claimant, who had become an adult, sought judicial review of the defendant local authority’s refusal to exercise its discretion to treat her as if she were a former relevant child under section 23C of the Children Act 1989. Before turning 18, she had left a family home marked by mental-health difficulties, alleged domestic abuse and caring responsibilities. The authority’s October 2018 assessment closed her case without deciding whether she required accommodation under section 20(1)(c).

The claimant challenged the legality of that assessment and the later decisions maintaining the refusal. She also argued that the only lawful conclusion was that the accommodation available in the family home was unsuitable, and raised grounds based on irrationality, irrelevant considerations and delay.

1. Claim allowed in part. The October 2018 assessment and the decisions of 19 February and 2 May 2019 were unlawful and were quashed. The claimant was not entitled to declarations that only one lawful outcome had been available.
2. Section 20(1)(c) of the Children Act 1989 required the authority to decide whether the accommodation available in the family home was suitable for the claimant. The assessment did not address that question. It concentrated on the possibility of rebuilding family relationships and on the claimant’s refusal to engage with proposed support. Those matters did not remove the need to assess suitability.
3. The assessment also failed to evaluate the proposed role of the claimant’s father, against whom allegations of domestic violence and physical abuse had been made. The authority’s reference to a significant risk of harm reflected the test applicable to care proceedings under section 31, not the statutory question under section 20(1)(c). The later witness evidence and decision letter could not cure the defective assessment; the court applied the approach in R (on the application of MN and KN) v London Borough of Hackney [2013] EWHC 1205 (Admin) concerning ex post facto rationalisation.
4. Even if the correct question had been addressed, the conclusion that the family home was unsuitable was not the only lawful outcome. Suitability was an evaluative judgment for the authority. The claimant’s wishes, the mother’s willingness to engage, the father’s possible cooperation, safety planning and support from a young carers’ project were relevant considerations. The court would not substitute its own assessment where competing professional evaluations showed that more than one lawful conclusion was available.
5. The delay objection failed. The permission order was not to be read as leaving the issue open, and the claimant had not received the assessment until February 2019. The claimant succeeded on the principal grounds and was awarded all her costs.