A judge has strongly reprimanded a London borough that failed to provide crucial information ahead of a judicial review into accommodation arrangements for ‘K’, a young Sudanese refugee who was supported by its social workers.
In a judgment handed down last month, David Elvin QC, who was sitting as a deputy high court judge, said there was “no excuse” for Brent council’s neglect of its duty of candour.
All parties to a judicial review are required to ensure all relevant facts and material are put before the court. But despite being warned months in advance, Brent failed to comply, said the judge, who noted ahead of the hearing that crucial documents including a social worker’s viability assessment were missing.
Many other documents were “significantly redacted”, the judge added. Meanwhile, around 400 unredacted documents – including the viability assessment – were belatedly produced during the hearing’s lunchtime adjournment.
“From the documents disclosed and the written submissions made to me following the hearing, it is clear that an accurate picture of the material facts was not provided by the council,” the judge said.
He was told that, because of inadequate protocols at Brent, not even the council’s own legal representatives had gained access to the unredacted documents held by children’s services until the day before the hearing.
This also meant the council’s lawyers had been unable to properly supervise a witness statement made by a social worker, Tracey Low – which, the judge noted omitted important facts.
Judge Elvin QC found Brent council had breached its duty to provide K with accommodation under section 20 of the Children Act 1989. It had also wrongly failed to acknowledge him as a ‘former relevant child’, eligible under S23 of the Act for accommodation and other assistance up to the age of 25, the judge said.
K and his cousin M, both born in 2000, claimed asylum in the UK after experiencing “ill treatment” at the hands of the Sudanese government and passing through Europe via the ‘Jungle’ refugee camp in Calais.
A Brent council contact record from October 2016 deemed them to be vulnerable, in need of “a lot of support” and meeting the threshold for children’s services assessment. A decision was taken to assess the suitability of their uncle, U, to meet their everyday needs.
Importantly the viability assessment – which the council originally said could not be found – described U’s studio flat as “not suitable” for the three relatives to live together in.
“I would not support the children coming to live with U under his present accommodation arrangements and without a more comprehensive assessment of how he would meet their full needs,” wrote the social worker who prepared the report, who added: “I am not convinced about how he would be able to meet the children’s unidentified needs, particularly considering their possible traumatic experiences.”
Despite the “real issue” with the statutorily overcrowded flat, K and M were placed there. No apparent action was taken by the council to resolve the situation, apart from advising U to apply for somewhere bigger.
A subsequent child and family assessment (CFA) in December 2016, the judge said, simply chose to “sidestep the accommodation issue”.
It concluded the boys were “happy to have somewhere to live” and that there was no ongoing role for social services – an analysis Judge Elvin QC found “concerning”.
‘A very different light’
Within a few months, K and M were kicked out of U’s flat, after a series of predictable problems, including around U entertaining friends and girlfriends at the property in the evenings.
After a period sleeping rough and sofa surfing, Brent children’s services found supported accommodation for the cousins via a homelessness charity, where they stayed until 11 October 2017.
Case notes from 18 August 2017 refer to K being told by a Brent council officer that “social care will need to consider all options for him” given the breakdown in relations with U, yet the local authority apparently continued to focus solely on returning K and M to their uncle’s care. Notes from a 22 September meeting at U’s flat revealed social workers threatened U with child neglect charges if he did not take the cousins back to his flat.
These notes, again, were only disclosed late to the judicial review and the incident was not mentioned in the statement by Low, who was by then the responsible social worker.
“[This] sheds a very different light on [U’s] 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 S20 duty had been discharged by facilitating re-accommodation with the uncle,” Judge Elvin QC said.
‘Remarkable lack of recognition’
The judge also found pressure had been put on K and M to return to U’s flat, which they did not wish to do. He described as “simply perverse” a further CFA that recorded K as being in agreement to return to his uncle’s care.
Judge Elvin QC noted a “remarkable lack of recognition” in the CFA and a subsequent child in need plan that overcrowding at U’s flat lay at the root of the problems between U and the two teenagers.
After being made to leave the homelessness accommodation, M reluctantly returned to U’s flat but K chose to sleep rough or sofa surf rather than go back.
“I went to Brent social services… on 21 December 2017 with all my belongings and told them I had nowhere to stay. I spoke to Tracey [Low]; she said they could not help me and I should stay at my uncle’s house,” K was quoted as saying.
That month, K instructed solicitors who set out their views that an S20 duty applied, and raised the application of a duty under S23c, but Brent council continued to deny that any duty had arisen.
It maintained this position until the morning of the hearing, when it conceded an S20 duty during the period between K being kicked out of U’s flat and being offered the option to return to it.
Brent also admitted that following this, it had failed to follow “any of the steps required to be undertaken for a child ceasing to be looked after”.
‘Welfare put at risk’
In conclusion, Judge Elvin QC said Brent’s belated disclosures left him “not satisfied” that it had discharged its S20 duties as of 11 October 2017 by arranging for K to return to U’s flat.
He criticised Low’s statement as ignoring the fact that the unsuitable accommodation was the cause of K’s problems.
The council’s 2017 CFA made “unreasonable” statements in light of the disclosure of the original viability assessment, said the judge, adding that the council’s actions appeared to have put K’s welfare at risk.
The judge added that Brent’s continued engagement with K after 11 October 2017 meant it had in fact continued to treat him as a looked-after child, for a period in excess of 13 weeks. The council therefore owed him a continued duty under S23, he found.
A spokesperson for Brent council said the authority accepted Judge Elvin QC’s ruling “without reservation”.
“We sincerely apologise both to the claimant and to the court,” the spokesperson said. “Our error [with regard to the duty of candour] was not deliberate and was as a result of administrative difficulties managing the huge volume of sensitive documents concerned. This does not excuse our shortcomings, which we acknowledge and regret.”
The authority had now taken “urgent and concrete steps, at the highest level”, the spokesperson added, to ensure that administrative systems were “materially and immediately changed” to prevent any such errors being repeated.
“Moreover, we are urgently reviewing other open judicial review cases to ensure our compliance therein. The duty of candour is an important obligation which we continue to take very seriously,” the spokesperson said.
A list of undertakings made by Brent council to the court set out in more detail some of the actions being taken by the local authority, which include implementing regular meetings between legal and children’s services senior managers. Social workers will also receive refresher training to address “any gaps” in their legal knowledge, including around the duty of candour, the document said.