Case No. Case-No.-CO-5942-2017

[2011] PTSR 1266 at [53]) These types of report -“should be construed in a practical way against the factual background in which they are written and with the aim of seeking to discover the substance of their true meaning.” 50. Even reading the CFA in this light, the CFA simply side-stepped the accommodation issue and the serious concerns expressed in October 2016 which were themselves reinforced by the comments in the CFA (including comments from K and M). Needless to say, the full force of that understanding of the Council’s position only became clear with the late disclosure of the viability assessment and email of 21 October. 51. Although, as Mr Carter for the Council rightly submitted, the Council was entitled to reach its own judgment on suitability of the accommodation, subject to review by the Court (where the bar is set high for interfering with the exercise of this type of expert function), it is in any event difficult to spell out of the viability assessment or CFA any conclusion other than that the uncle’s flat was too small and overcrowded and that it was not suitable for 3 people. There is nothing in the CFA to suggest otherwise than, possibly, from the bare inference from the fact that the children were accommodated in the flat and the file was closed on 21 December 2016. At that time, of course, the cousins were still new to the UK and were doubtless relieved to have a roof over their heads. 52. Social Services did not even consider it appropriate to monitor the situation given it was fully aware of the problems with the flat, having regard to the fact it did not expect an early solution to the accommodation issue. I find this concerning given their vulnerability as refugees newly come to the UK. While I acknowledge the pressure on Council resources, including accommodation and provisions of services, and on its officers, nonetheless this does not permit an authority to sidestep or ignore its important duties under the 1989 Act. While it might have been reasonable to accept the use of that accommodation initially, with the possibility of larger accommodation in the future, the terms of the viability assessment should have alerted Social Services to the need to keep the situation under review to detect any problems that might arise. 53. Within 6 months of the closing of the file, problems had arisen. K visited the Council’s offices on 3 July 2017 and explained that he did not want to live with his uncle and that he did not feel comfortable living at his uncle’s. His case notes record that he said he slept on the floor due to overcrowding and has made the decision to leave. He was told he had to return to his uncle’s flat and, when he refused, he was told he would have to make his own arrangements. On 4 July a Group Case note recorded that K “is currently in the Civic Centre” saying that he was “having problems living with his uncle i.e. not enough room in the household.” 54. K explained in his evidence to the Court that there was no space and privacy in the flat. This is consistent with the Council’s own records. The situation cannot have been easy for K’s uncle, either. In addition to visits from his 4 children, U often had other visitors and when another visitor came, K would leave the flat and go to the park to give him privacy: “The problems started when my uncle’s friends and girlfriends would come over. After a few months I felt uncomfortable about the fact that my uncle's friends would be over during the evening and night time. I spoke to my uncle about it and he said that he could not change the situation and that he did not have a solution to the situation.”55. As a result of this, K says (and this is not disputed by the Council) that - “My uncle's behaviour changed towards me and [M] after that conversation. He kicked us out of his flat out of the blue around July 2017. There was no argument or specific incident that occurred which led to us both being kicked out, he was angry with us and said he felt that we were both ungrateful.” 56. Having been thrown out by his uncle, K slept on the street for the first night and then stayed with a friend. On 1 August 2017 K visited the Council’s Social Services offices in Wembley and told Social Services that his uncle had kicked him out but Social Services were unable to help. A Group Case note of the same date records: “The young people were being supported by [BLANK] was from Crisis who explained her role and the concerns she has for the children and she stated that the young people had been living on the streets for the past three weeks. I stated that the young people had actually come to the Civic centre on numerous occasions to state that they wanted to leave his uncles property due to overcrowding, therefore making themselves intentionally homeless.”57. On 2 August, K saw a Social Worker at Brent Social Services offices. They used a telephone interpreter for the appointment. After taking his details, a social worker drove him to his uncle's flat. He said that this made his uncle upset and angry but that he confirmed to the social worker that he had kicked K out of the flat and that he did not want him back. Although the social worker tried to convince the uncle to change his mind, he made it clear to her that K was not able to stay there. The case note for that visit records: “Uncle reports the following:Unable to have K back to the property as he does not follow curfews. He says he has no space and is struggling to support him financially.He says he is not willing to making a housing application for a bigger property as his home is fit for his own purposesHe was challenging about K remaining to be his responsibility and what plans does he have to support him as he invited him to the UK. Uncle would state he has no options…”58. The Council’s Group Case note for 2 August also recorded under “What needs to happen (Analysis & rationale)”: “K is a 17 year old, he came to the UK via Dublin Regulation from Calais. It was agreed that K will be looked after by his uncle who can no longer care for him due to overcrowding; contact was made to the uncle yesterday (01/08/2017) however this remained unsuccessful on several attempts. K has a lack of strong family support network deeming him vulnerable; uncle has discharged his duty of care for him and therefore K is now at risk. Case to remain with BSC to ensure the safety of this young person.”59. A Child Referral document of the next day, 3 August, noted: “In my professional opinion, this case meets the threshold for an intervention from the FAST Team… K is a 17 year old, he came to the UK via Dublin Regulation from Calais. It was agreed that K will be looked after by his uncle who can no longer care for him due to overcrowding; contact was made to the uncle yesterday (01/08/2017); however this has remained unsuccessful on several attempts. K has a lack of strong family support network deeming him vulnerable; uncle has discharged his duty of care for him and therefore K is now at risk. Case to remain with BSC to ensure safety of this young person.”60. Social Services was not able to arrange for accommodation until 8 August 2017 having secured the uncle’s and cousins agreement to mediation on 4 August. They were provided with supported accommodation at Crash Pad, run by Depaul, a charity that works to assist the homeless. K and M were happy there and lived in that accommodation for 9 weeks and one day until they were required to leave (since the Council would not authorise further accommodation there for them) on 11 October 2017. 61. The Council’s person case notes records on 18 August 2017 that: “He [K] was advised that since the relationship with his uncle has broken social care will need to consider all options for him”62. The agreement to mediate proved fruitless since the uncle refused to engage. However, notwithstanding what had occurred, including the problems with the accommodation, and the previous recorded views and the view that all options would have to be considered, the Council evidently then determined to place the cousins back with the uncle. 63. The Council visited the cousins at the Crash Pad on 19 September 2017 when they explained again their problems with their uncle’s flat but were told that the only plan was to assist the uncle in finding larger accommodation (which had been the solution noted in December 2016 and which had not produced a solution by then). The social worker noted the cousins “displayed body language to suggest that they were not happy with what I was telling them.” 64. Disclosure of notes of a meeting with U at his flat on 22 September 2017 sheds a very different light on his subsequent agreement to re-accommodate his nephews, which agreement was heavily relied upon by the Council at the hearing in support of its submission that the s. 20 duty had been discharged by facilitating re-accommodation with the uncle: “U was adamant from the outset that he is not willing to resume responsibility of the boys, he explained that he has 4 children of his own and that he can not manage the stress of continuing to look after M and K. U stated that the accommodation is not suitable and although his children do not reside with him they visit often and it becomes too overcrowded. U ignored my efforts that encouraged him that SC would assist him helping him find larger accommodation, he stated that he did not want bigger accommodation to look after the boys, he stated that he did not want to continue to look after the boys.U stated that M and K have become disrespectful to him and do not listen to him or adhere to the boundaries he sets.I advised that his account of the boys is very different from the account provided by the Crash Pad. I explained that the boys are attending college regularly, and are very independent.U said that he has a different experience with the boys. I advised that I have spoken with the boys and informed them of the plan to return them home and explained that they would need to adjust their behaviour in order to make their relationship with uncle work. I also explained that I would support in rebuilding their relationship.U stated that he was not interested in this type of support as he is not willing to resume their care.I asked why U initially took responsibility for the boys care and now relinquishing his responsibility.U stated that the boys behaved differently towards him when they first arrived in his care.”65.It appears that pressure was placed on U to reconsider though he was still very resistant to the proposal:“I explained to U that he could face charges of Child Neglect if he does not resume his responsibility as the boys are considered as minors until they are 18 years. I explained that U would need to resume his responsibility for the boys until they are 18 years, in 4 months and then M and K can apply for Housing in their right.U refused to comply and stated he did not care about Child Neglect charges.U stated that the Council was ‘big’ and has ‘many rooms’ and should accommodate the boys, he suggested that the boys remain in the ‘hostel’ were they are.When advised that the current accommodation was not a long term arrangement for the boys he suggested that they were sent back to Sudan.U said he is happy to support the boys by continuing to provide them with clothing and they can visit him at any time but he stated that he cannot be ‘stressed’ with caring for them again.I advised U to nominate other family members who could support M and K for the next 4 months until they are 18 years, he said there were no other family members in the UK that could offer to provide care.I left U to consider that the boys arrangement at the Crash Pad will end in a matter of 4 weeks, I suggested he come up with a plan for their care or be prepared to receive them back home.I advised that I will arrange a meeting between he, the boys and myself next week to discuss a way forward to resolve this matter.”66.Tracey Low did not refer to these matters in her witness statement, though evidently she had become the responsible social worker on 13 September.67.Pressure also seems to have been put on K and M. K states in evidence:“Tracey tried to convince me to stay with my uncle.Every week she would come to the house and ask both me and M to stay with our uncle. This went on through September and October 2017. Every week she said she could not offer accommodation any longer and that the accommodation needed to end. Every time we had the conversation I explained that my uncle had kicked me out, I was upset and angry that we were having the conversation every week.Eventually Tracey told me that my uncle had agreed let me stay in his flat I said I could not go back and stay with him because I was sleeping on the floor in the flat and in the same room as M and my uncle. I told Tracey that she was sending me back to square one. Tracey then said that my uncle could apply for bigger accommodation if M and I moved back there, I felt as though Tracey was putting pressure on us to move in with our uncle when the relationship had broken down. Roughly on 10th October 2017 Tracey came and spoke to me and my cousin M again and told us "This is your last day here".”68. At a family meeting held on 26 September, U had obviously been persuaded by Social Services to reconsider and agreed that he would resume caring for K and M. U, however, said he had thrown the bunk bed out since the cousins had left. K is recorded as having told the social work that “he was unhappy about going back to reside with his uncle”. The cousins both “advised that their only reason for not wanting to return to their uncle was because of the lack of space and wanting to live independently.” They were told they should be under no illusions about the timescale in which larger accommodation could be provided and in the meantime a new bunk bed would be funded. 69.What is remarkable about the 2017 CFA and the Child in Need (CIN) Plan that followed it on 11 October is their lack of recognition that the overcrowding at the flat and the lack of space appeared to lie at the root of the problems that had been experienced and that neither the CFA nor the CIN Plan resolved any of the issues that had led to the breakdown in the family relationship. Ms Williams expressed concern that the Council was simply trying to manage the situation for the remaining 3 months until the cousins turned 18.70.There is no acknowledgment of the uncle’s strong wish not to accommodate his nephews any longer in the context of the carer’s capacity to provide for the children’s needs. Under the heading “what we are worried about” the cracks were at best papered over as a “complicating factor” which in my judgment was a serious understatement since it went to the suitability of accommodation and care under s. 20:“M and [K] have been asked to leave the family home by their uncle, U due to overcrowding. Both boys are currently placed in DePaul Crash pad which is supported living. Complicating factors and grey areasK has reported that he does not wish to return home as he wants to live independently.M and K have reported that there was a number of people living at the family home. U reported that his children (he has 4) visit at tiume and he is unable to do anything to prevent this as they are his children.U reported that both boys have conveyed defiance towards him and K does not respect his curfew. However, these behaviours have not been noted by DePaul staff and on the contrary they described both boys as ‘exemplary’.”71.The CFA records under “views of children” that K was “in agreement to turn to the care of U”. I find that entry to be simply perverse. It is clear from the Council’s own notes of meetings or discussions with K in in July and August 26 September and 5 October (the day after the CFA was completed but before K left the Crash Pad) that K would not return to the flat. He wanted to be independent though he made it clear on several occasions that he would return to live with his uncle if larger accommodation could be provided (see e.g. p. 10 of the CIN Plan of 11 October). This underlines the view that the difficulties the boys and their uncle experienced stemmed from the inadequacy of the accommodation. 72. Moreover, K states in his evidence: “The interpreter at the time didn't interpret correctly when the social worker was talking to me. I felt the interpreter was siding with the social worker because she was trying to convince me herself. Both the Social Worker and the interpreter put pressure on me and M and so M agreed to go to our uncle's flat. However, I didn’t agree and the Social Worker continued to try and convince me.I made it clear that I was not going back to live with my uncle. The social worker kept on saying that I had no other choice but to go back to my uncle. Eventually she told me "See if your friends can help you. However, you don't have a problem because you can live with your uncle.”73.I note that although M did return to live in the uncle’s flat, he was far from enthusiastic and it was recorded in the CIN Plan that -“he is not really happy with the current arrangement with regard to returning to the care of his uncle.”74. It does not require much effort to envisage the difficulties caused by two 17 year old boys having to live at very close quarters in one room with their adult uncle, without any privacy or even storage for belongings, with their uncle having regular visits from children and friends and wishing to continue with his own life. Although allegations were made by U, in the meetings from August 2017, that K had been troublesome and had not been respectful or observed proper boundaries, or curfews, it is not difficult to draw the conclusion (reinforced by independent reports of K’s exemplary behaviour in the Depaul accommodation and in his studies) that this was caused by having to live in too close quarters with his uncle and cousin in the flat. 75.However, despite the strong resistance of the three family members, Social Services was determined that there was only one course of action it would contemplate – and despite K having been told on 18 August “that since the relationship with his uncle has broken social care will need to consider all options for him”. The course of action appears unfortunate particularly since the Council was at pains to point out that Social Services were concerned to place the cousins with their uncle to provide a degree of stability they had not had previously – yet the situation created by the shortcomings of the flat undermined that objective.76.For these reasons, I find it difficult to conclude that the Council complied with the Government’s guidance in The Children Act 1989 guidance and regulations Volume 2: care planning, placement and case review (June 2015) at para. 1.11:“Children should feel that they are active participants and engaged in the process when adults are trying to solve problems and make decisions about them. When plans are being made for the child’s future, s/he is likely to feel less fearful if s/he understands what is happening and has been listened to from the beginning. Close involvement will make it more likely that s/he feels some ownership of what is happening and it may help him/her understand the purpose of services or other support being provided to him/her, his/her family and carer. Where a child has difficulty in expressing his/her wishes and feelings about any decisions being made about him/her, consideration must be given to securing the support of an advocate.”77.Both the 2017 CFA and the CIN Plan set out what the Council proposed to do to provide support: see the section “what needs to happen” sections in both. These listed a number of matters including supporting the family by funding the cost of a bunk bed for the boys (noting that U had provided a sofa bed for the boys to sleep on the basis a bunk “would make the room feel more overcrowded”), assist in writing a supporting letter for “more suitable accommodation”, support U in applying for the relevant benefits (pending the provision of which a weekly subsistence payments will be paid to the boys), for the cousins to continue to attend college and to undertake some direct work with them “to address the behaviour issues that U has identified”. Social Care stated that it “will conduct 3 weekly to monthly visits to support the family and monitor the CIN plan”.78. Whilst the Council decided that it was in K’s best interests to live with U, when he was required to leave the Crash Pad on 11 October 2017, K refused to return to the flat and said that he would stay with a friend. He did not return to live at U’s flat but slept rough or “sofa surfed” with a friend, A (which was itself precarious since A was not permitted under the terms of his occupancy to have anyone else stay in his room). K himself states: “The Social Worker told me that social services didn't have a solution for me and therefore I had to pack my belongings. This happened on 11th October 2017, I know this because Brent social services confirmed this date with my solicitor. The social worker told me to get into the car because she was saying that I had to go to my uncle's home, she drove me to my uncle's flat or somewhere near there but I still insisted that I wasn't going to go there, so I got out of the car and walked to the park. During the time that I was in the park the Social Worker went inside the flat to speak to my uncle. I stayed in the park until about 9pm. I called another friend of mine called Y and Y told me that there was nothing that he could do to help me. I therefore telephoned another friend, A, and A said that I could stay with him. I have been living with my friend A on and off since that time… When I am unable to stay with A I sleep in the park. A has shared accommodation and his license agreement does not allow him to have anybody staying with him, so I have to sneak in and out of the accommodation. I went back to Brent Council in November 2017 because A was not able to accommodate me. First I approached Tracey on the telephone and Tracey said that she would speak to her manager about me and then make an appointment for me to come and see a social worker. When the meeting happened it was not with Tracey, it was with somebody else who introduced herself as Tracey's colleague. This meeting was some time in November but I do not know the date. During the meeting, Tracey phoned me and said that "You were speaking to my colleague and the situation is the same, that there is no solution for you in terms of accommodation, therefore the advice is for you to go back to your uncle" and then the meeting ended.…A is not allowed to host me because he lives in accommodation provided by social services so I go there late at night and leave early in the morning so that I am not seen. A has told me "if they find you here, I will have problems". A is not happy to host me but has pity for me. A allows me to stay because he feels sorry for me; he knows that I would sleep in the street in the cold. Despite this, on many occasions A has asked me to leave. …I can only take a shower after 3 am at A residence, as it is when everyone else is asleep. This is because if somebody sees me, they would inform the people responsible for the accommodation. I went to Brent social services … on 21st December 2017 with all my belongings and told them I had nowhere to stay. I spoke to Tracey; she said that they could not help me and that I should stay at my uncle’s house. I left Brent social services and stayed in the library. I called A to tell him I had nowhere to stay so he told me to come back when it was the night time.I don’t have a space to put my belongings. I put everything in one bag and hide it under A's bed. I never cook in A’s house and he doesn't offer me food. I buy food outside and only go to A’s house to sleep. I spend most of the day outside in the cold or in the library waiting for the night to come.”79. K instructed solicitors and on 7 and 21 December they sent letters before claim setting out the details of K’s circumstances and setting out their view that s. 20 of the 1989 applied. The Council was requested to accept a duty under s. 20 and to ensure the provision of suitable accommodation. The letter of 21 December also raised the application of the duty under s. 23C. They also sought disclosure of all records and correspondence from the Council and were reminded in express terms of the duty of candour. 80. The Council’s response of 12 December stated that the Council had discharged its duties relying on the 2017 CFA and the facilitating of accommodation with U. Similarly, on 22 December the Council disputed the existence of a s. 20 duty and further rejected the application of s. 23C on the footing that K was not eligible. The Council pointed to its “limited resources and desire to assist all the children in need who present to them” and that they had acted reasonably and lawfully in assessing K’s needs. There was no acceptance at that stage that any duty had arisen under s. 20. 81. I do not propose to run through the procedural steps that were taken after the issue of proceedings on 22 December (including an application for interim relief and a consent order). Permission was granted as I have noted on 6 February 2018. I note from the Council’s detailed grounds: (1) The existence or breach of the s. 20 duty was denied. However, in para. 9 the Council did “admit that [the flat] was statutorily overcrowded” (as it had done in its summary grounds); (2) The s. 23C duty was denied on the basis that K was not an eligible child and therefore not a FRC and had not been looked after beyond the period from 8 August to 11 October 2017; (3) The request to treat K as if he had been a FRC as a matter of discretion was rejected principally on the basis that he was not an eligible child, which was merely a repetition of the rejection of the application of s. 23C. (Para. 25 set out 6 factors why the Council had “decided” that the discretion should not apply, although these do not appear in the evidence and those factors were not mentioned or supported in Tracey Low’s witness statement in dealing with this issue in paragraphs 37 and 38.) 82. The Council has provided assistance to K since December 2017 though not in purported discharge of s. 23C: (1) They have been willing to support him in applying for housing support and benefit; (2) they have paid him subsistence payments until his application for welfare benefits was processed; (3) they have placed the Claimant in supported accommodation which was arranged through the Social Services Department, and not Housing, will be available (subject to conditions) for up to two years at the end of which period, the Defendant will arrange for the Claimant to be provided with alternative accommodation by STARTPLUS. 83. Throughout this period, and indeed up to the morning of the hearing before me, the Council maintained that a duty had not arisen under s. 20 at any stage but that it had provided the supported accommodation and other assistance pursuant to s. 17. See Tracy Low’s statement at paras. 33 and 34. However, at the start of the hearing on 1 May 2018 Mr Carter for the Council informed me that the Council now accepted that a duty under s. 20 had arisen on 1 August 2017 when it was approached by K and informed he had been thrown out by his uncle. The Council accepted that the s. 20 duty had applied until K left the Crash Pad on 11 October, but at that point it submits that its duty came to an end andAKa ceased to be a looked after child since he now had accommodation with his uncle. 84. However, it is accepted by the Council (and could not be otherwise given its refusal to accept it had a s. 20 duty until the hearing) that it had not followed any of the steps required to be undertaken for a child ceasing to be looked after. This issue lies at the heart of the remaining two grounds, which I will come to below, and which concern the duties which are said to have arisen in respect of his leaving care.