High Court judge finds council in breach of its duty to former looked-after child following his 18th birthday

The High Court has allowed a judicial review claim regarding Monmouthshire County Council’s failure to make arrangements to provide the claimant with supported suitable living accommodation from the end of that month when he celebrated his 18th birthday, before which he was in the care of the council as a looked-after child.

In TJ, R (On the Application Of) v Monmouthshire County Council [2024], His Honour Judge Jarman, sitting as a judge of the High Court, concluded that the council was in breach of its duty to the claimant, and that it failed to have regard to his “views, wishes or feelings” when recommending a placement option.

Outlining the background to the case, the judge noted that as a child, the claimant experienced traumatic episodes which impacted upon his cognitive, social and emotional development.

When he was about 13, the claimant was diagnosed with ADHD and moved from mainstream school to a special school, and then to a pupil referral unit.

In 2021, an order was made by consent in the family court that he was at risk of harm because he was beyond parental control. He became a looked-after child in the care of the council, with his adoptive mother retaining parental responsibility.

The judge said: “He is prone to risk taking behaviour and was placed on the child protection register twice as a result of exploitation by county line criminal organisations. In 2023, he was diagnosed with autism and with a pathological demand avoidance disorder (PDA) in which there is resistance to ordinary demands made by others.”

Since November 2022, the claimant has been accommodated by the council in a flat, initially with 15 hours of support per day. In September 2023, the council gave him 28 days' notice to end his licence to occupy the flat, at a time when he was a looked-after child.

The judge noted that he remains living there, with the council describing him as a “tolerated trespasser”.

In December 2023, the council carried out a pathway assessment and plan for the claimant. It was assessed that he required ongoing support with cooking, safety processes, emotional regulation, the development of independent skills and compliance with the requirements of a tenancy.

Realistic options after he left care were set out, namely living with his parents or at a supported house.

It was concluded that the claimant continued to need support to develop his independent living skills, and the supported house would allow that in a supported environment with access to support at any time. It was also pointed out that that was a short distance from where his parents live.

In January 2024, the council informed the claimant that he should present as homeless. The next day, it sent an email to his solicitors which included the following:

“The options available to your Client.... are as follows -

• The Local Authority can support your Client with a return home. A referral can still be made to [the supported house] and have him on the waiting list for [the supported house] whilst is he is at home, should he consent.
• The Local Authority can support your Client to present as homeless to housing.
• The Local Authority Support your Client and his parents to link in with the current placement provider to explore option to remain in the current placement should they wish to assume the costs of the placement after the week .

The claimant and his mother attended the supported house for an introductory visit in March 2024. The judge noted that in her witness statement, the claimant’s mother set out the reasons why neither of them thought it was suitable.

One example was that the house was noisy, and his mother was concerned he might become overstimulated.

After the visit, the council wrote to the claimant's solicitor again, which letter included the following:

“Despite the initial view provided by [the supported house] following the assessment meeting, […] [the supported house] have agreed to support your client to attend [the supported house] for further visits which could inform further assessment. Your client is able to consent to this support being provided and further visits taking place.

“As you would have advised your client, there are limited housing options for young people leaving care. Your client will not be able to stay in his current accommodation post-18 years old.

“In the absence of a suitable young person's accommodation, your client's route post-18 years old will be to present as homeless or return to his parents’ home. Your client's mother is aware of the above.”

The council added: “The Social Worker has asked your client's mother on multiple occasions for accommodation options that she deems suitable for your client so that the Local Authority can explore these options to consider whether they are viable. To date, your client's mother has not shared 'neurodiverse friendly' options that she would deem appropriate for your client to reside.”

The judge noted that the claimant “did not further engage” with the supported house.

Counsel for the claimant submitted the council was in breach of its duty in five main ways:

1. At the time of the assessment, the claimant's views had not been sought. Further, the assessment had not been updated when the claimant indicated that he did not want to live at the supported house or at his parents' house. The council continued to indicate that such a placement was the only one it could offer.
2. The Code of Practice requires the council as part of transition planning to have in place access for care leavers to the full range of potentially suitable supported accommodation options in the area, and arrangements to offer care leavers reasonable preference on welfare grounds through allocation schemes.
3. By presenting the claimant with that option or homelessness, unless he identifies suitable options, the council is in breach of section 6(2)(a) and (c) of the 2014 Act and part 6 of the Code of Practice.
4. There is no indication that the council's social services and housing departments have worked collaboratively to find suitable options. It is not for the claimant to propose alternative options.
5. The council by saying that Newport is outside its control has misdirected itself. If the only suitable accommodation is out of area, the council is likely to remain responsible for the claimant for that placement.

Considering the parties’ submissions, His Honour Judge Jarman found the council in breach of its duty to the claimant.

He said: “First, the council did not have regard to his views, wishes or feelings as to the recommendation in the assessment of [the supported house] option. This was presented as the only real option. To do this without ascertaining his views, wishes or feelings about such a placement and/or in doing so without having regard to his disabilities and particularly his PDA was a fundamental flaw from the outset of this process.”

He continued: “This continued to be the case after the claimant visited [the supported house] with his mother..... and expressed the understandable concerns which they did. Despite that, and despite his diagnosis of PDA, the council in its follow up letter continued to focus on this placement and referred to the alternatives of homelessness or a return to his parents' home.”

The judge observed that this also demonstrated a “lack of transition planning” by the council to have in place access to the full range of potentially suitable supported accommodation options in the area, and a “failure to give reasonable preference on welfare grounds through allocation schemes”.

The judge noted that that planning should have entailed collaboration between the social services and housing departments of the council – but that there was no indication of this.

The judge made a declaration as to the breaches above, but said he was “not persuaded” that mandatory orders were necessary.

He concluded: “Compliance with the council's duties in this particular case involves intricate and complex processes. The declarations will indicate to the council what has gone wrong in the past. There is at present an ongoing assessment, and engagement with a project in Newport, although that has not brought a solution as yet. There is a change in the claimant's circumstances because of his new relationship. It is better that the parties focus upon and engage with these processes rather than having to deal with potential rigidity of a mandatory order.”

Lottie Winson