Education – Social welfare – Looked-after children

R (on the application of O (by his litigation friend Andrew Burton)) (Appellant) v East Riding of Yorkshire County Council (Respondent) & Secretary of State for Education (Intervener) (2011): CA (Civ Div) (Lords Justices Rix, Richards, Lady Justice Smith): 2 March 2011

The appellant child (O) appealed against a decision ((2011) EWCA Civ 196) that he was no longer a child ‘looked after’ by the respondent local authority.

O was a teenage boy who suffered from severe autism and severe attention deficit hyperactivity disorder. He was a child in need for the purposes of the Children Act 1989 section 17(10) and had been provided with weekend respite care by the local authority under section 20 of the act. As a result O had become a looked-after child, and would be entitled to assistance from the local authority until he was at least 21 years old.

O was later placed full-time in a residential specialist school in accordance with a statement of special educational needs, but often returned home to his parents' care at weekends. The local authority claimed that the effect of that placement was to terminate O's status as a looked-after child, because he no longer required respite care and his welfare needs were being met by an educational placement under the Education Act 1996. O’s application for judicial review of that decision was refused.

Held: It was clear that O had been assessed as requiring a residential placement to meet both his educational needs and his psycho/social needs for which he had become a looked-after child. It had been plain to the local authority that he required full-time accommodation in a specialist placement in order to give him the care, as well as the educational assistance, that his needs, and his parents’ inability to cope with and control him, demanded. The fact that O’s parents were willing to look after him at weekends did not detract from that.

Accordingly, the local authority had erred in regarding the special educational needs placement as supplanting and ending O’s looked-after status; they had mislabelled the situation and were side-stepping their responsibilities under the 1989 Act, R (on the application of G) v Southwark LBC (2009) UKHL 26, (2009) 1 WLR 1299 applied. They had failed to give any thought, let alone anxious scrutiny, to whether the factors that had led to O needing respite care, when they were carried over into the educational placement, necessitated a continuation of O's looked-after status.

In the circumstances, where O’s needs, social and educational, had driven the placement, it was impossible to regard the regime under the 1996 act as supplanting rather than supporting the regime under the 1989 act. The local authority’s error went beyond, or was different from, perversity or irrationality (see paragraphs 113-114, 116-117, 119 of judgment).

Appeal allowed.

Nicholas Bowen (instructed by Children’s Legal Centre) for the appellant; Stephen Bellamy QC, Sally Gore (instructed by in-house solicitor) for the respondent; Clive Sheldon (instructed by in-house solicitor) for the intervener.