TT v Essex County Council

A judicial review claim may be heard after becoming academic where it raises an unaddressed public-law question of statutory construction with continuing public importance. A local authority may offer a homeless child aged 16 or 17 a fair choice between accommodation under section 20 of the Children Act 1989 and accommodation provided otherwise. The alternatives must be presented neutrally and impartially, without spin or undue pressure. Emergency accommodation may initially be provided on a legally neutral footing while the child considers that choice. An anonymity order is a derogation from open justice and requires clear and cogent evidence that anonymity is necessary and proportionate. Such orders should ordinarily have an end-date.

The claimant, aged 16 when proceedings began, had been accommodated through the Essex Young People’s Partnership after becoming unable to remain at home. She sought judicial review declarations that she was an eligible or relevant child under the Children Act 1989, that the defendant had failed to perform the corresponding duties, and that the defendant’s policy concerning EYPP accommodation was unlawful.

By the hearing she had turned 18 and the defendant had agreed to treat her as a former relevant child, making the claim academic. The court nevertheless heard it because it raised a recurring statutory question affecting other 16- and 17-year-olds. The issues were whether the EYPP accommodation was necessarily section 20 accommodation, whether the claimant had agreed to receive it otherwise than under section 20, and whether an unlawful policy had been established.

1. Academic claim. The claim was academic because the defendant had guaranteed the practical support associated with former relevant-child status. A declaration concerning past wrongs which had been made good could be granted only for exceptionally good reasons. The claim was heard under the cautious public-interest discretion described in R v Home Secretary ex p Salem [1999] AC 450, because it raised an unaddressed point of statutory construction affecting at least 75 other children.
2. Choice of accommodation. The statutory scheme permits a homeless child aged 16 or 17 to agree to accommodation otherwise than under section 20, despite the normal importance of section 20 accommodation. A local authority may therefore stipulate that accommodation supplied through a separate housing scheme is non-section 20 accommodation, provided that the child is given a meaningful alternative choice of section 20 accommodation elsewhere.
3. The choice must be presented neutrally and impartially. The authority must not use spin or undue pressure to procure the non-section 20 choice. Ideally, the alternatives should be recorded in plain, child-friendly language, provided for the child to take away and consider, and signed and dated if the child chooses non-section 20 accommodation.
4. Where emergency accommodation is required before a fully informed choice can be made, the initial placement may be treated as legally neutral for a short period. This preserves the child’s opportunity to make a free and fair choice and reflects a purposive reading of the legislation.
5. Application. The defendant was entitled to offer BBH only on a non-section 20 basis. Although the social worker’s presentation was not wholly neutral, it did not amount to improper or undue pressure. The claimant voluntarily accepted BBH knowing the stipulation and claimed universal credit, which was inconsistent with being looked after. She was therefore taken to have agreed to non-section 20 accommodation. The BBH and YMCA arrangements were not accommodation provided by the local authority for section 20 purposes. The claimant was not shown, on the balance of probabilities, to have been an eligible or relevant child.
6. The evidence did not establish an unlawful policy or justify the proposed declarations concerning wider unlawful conduct. The claim for judicial review was dismissed.
7. Anonymity. Open justice requires public reporting, including the names of the principal actors. Anonymity requires an intensely focused necessity and proportionality assessment supported by clear and cogent evidence. The claimant’s evidence justified continuation of the reporting restriction order, but only until 1 April 2025, with liberty to apply for an extension.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.