July 30th, 2021 by James Goudie KC in Social Care

There are insufficient places available in registered secure children’s homes. That is the context of T (A Child) (2021) UKSC 35. The Supreme Court holds that the High Court has inherent jurisdiction to grant an application by the local authority to deprive a child of his or her liberty in other accommodation.


Age Assessments

July 27th, 2021 by James Goudie KC in Social Care

In R (Birmingham City Council) v Croydon LBC (2021) EWHC 1990 (Admin) Morris J reviews the role and duties of the Home Office and local authorities when presented with a person who claims to be an Unaccompanied Asylum Seeking Child. The starting point for local authorities is that they have duties under the Children Act 1989. They must provide accommodation and support to children in need in their area. There is no specific duty to carry out an age assessment.

What there is is a duty to decide to assess a child’s needs under Section 17. The authority has to take reasonable steps to investigate whether the person concerned is a child. When there is doubt then there is a duty to carry out an age assessment.


Looked After Children

June 30th, 2021 by James Goudie KC in Social Care

In Salford City Council v W (2021) EWHC 1689 (Fam) MacDonald J reviewed the authorities and outlined the approach for determining whether a child was “looked after” for the purposes of Part 3 of the Children Act 1989. It sets out the principles which apply when deciding whether a child has been accommodated by a local authority under Section 20, so that he or she is a “looked after child” within the meaning of Section 22, rather than simply having been placed, pursuant to a private arrangement, with foster parents.

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Age Assessment

May 24th, 2021 by James Goudie KC in Social Care

In R (AXA ) v Hackney LBC (2021) 1345 ( Admin) the claimant said that he was 17. The Council assessed him to be at least 21. They declined to provide him with accommodation suitable for a 17 year old. He sought a mandatory interim injunction requiring the Council to place him in “ claimed age appropriate accommodation” and “ provide support for his living needs”.  Garnham J noted, at para 21, that in accommodation duty cases an injunction will not generally be granted where the applicant cannot show a “ strong prima facie case “, but said,,at para 22, that there are circumstances where the Court may not insist on a strong prima facie case. Context is everything. Garnham J concluded, at paras 23 and 24, that there is “ no hard and fast rule” , but the fact that what is sought is mandatory is “ one factor which can properly be taken into account in assessing the balance of convenience.” The strength of the claimant’s case, so far as it can be taken into account, is also a factor to be taken into account in the balance of convenience. See further paras 42-48 inclusive.


Ordinary Residence

April 1st, 2021 by James Goudie KC in Social Care

The approach to the question of “ordinary residence” under the Mental Health Act 1983 is different from that under National Assistance Act 1948/Care Act 2014. So held by Linden J in R (Worcestershire County Council) v SoS (2021) EWHC 682 (Admin). LA 1 provided after-care services for a person discharged from hospital after being detained there under Section 3 of the 1983 Act. LA 1 placed the person in a care home in the area of LA 2. Then that person was detained again. When they were discharged again after the second period of detention, was it LA 1 or LA 2 who was responsible for the second period of after-care? Answer: LA 2. Reason: for the purposes of Section 117 (3) of the 1983 Act they were “ordinarily resident” in LA 2’s area “immediately before” the second period of detention.


Ordinary Residence

February 15th, 2021 by James Goudie KC in Social Care

R ( Lancashire County Council ) v SoS for Health and Social Care  (2021) EWHC 268 (Admin ) concerned “ ordinary residence” under Section 21 of the National Assistance Act 1948. In particular it concerned the deeming provision in Section 24(5) of the 1948 Act, and the situation when arrangements for accommodation should have been made, but were not. The Judge held that the “ should have “ requirement includes (1) the undertaking of any assessment that should have been undertaken under Section 47 of the National Health Service and Community Care Act 1990 at the relevant date, having regard to the low threshold for such an assessment, and (2) disregarding resources available to meet the need that fall to be disregarded under Section 21(2A) of the 1948 Act, such as PI damages, administered in this case by a CoP appointed Deputy.



August 6th, 2020 by James Goudie KC in Social Care

Does a local authority have power to take steps to change the nationality of a child in care, to British citizenship, against the wishes of the child’s parents? No, says the Court of Appeal, in Re Y, (2020) EWCA Civ 1038. An application must be made to the High Court.


Mental Capacity

July 7th, 2020 by James Goudie KC in Social Care

In Tower Hamlets LBC v PB (2020) EWCOP 34 Hayden J has applied the presumption of capacity in the Mental Capacity Act 2005 and highlighted that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. The Judge gave guidance on assessing the capacity of those who are alcohol dependent to decide where they live and what type of care they receive, and re-stated the relevant principles.


Some thoughts on Local Authorities and Coronavirus

March 18th, 2020 by Peter Oldham QC in Decision making and Contracts, Human Rights and Public Sector Equality Duty, Judicial Control, Liability and Litigation, Local Authority Powers, Social Care

This note sets out some information and personal views about local authority decision making in the light of the current crisis.

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Deprivation of Liberty

February 12th, 2020 by James Goudie KC in Social Care

In R (Jallow) v SSHD (2020) UKSC 4 the Supreme Court considers, in the context of an immigration curfew, whether the meaning of “imprisonment”, at common law, should be aligned with the concept of deprivation of liberty (“DoL”) under Article 5 of the ECHR.  Lady Hale explains that the ECHR distinguishes between DoL and restriction of physical liberty.   Whether there has been a DoL depends on a number of factors.  The Supreme Court unanimously declines to accept the argument by the SoS that the time has come to align the domestic law of false imprisonment with the concept of DoL.  This would be a retrograde step. It would restrict the classic understanding of imprisonment at common law with the “much more nuanced” concept of DoL. There is no need for the common law to draw a distinction between deprivation and restriction of liberty, and good reason not to do so. It is possible for there to be imprisonment at common law without a deprivation of liberty under ECHR Article 5.  It was not necessary to decide whether the concept is true.