Facts: RO had severe autism and ADHD, as a result of which East Riding placed him at a specialist residential school, from where he returned home every weekend and during school holidays. East Riding and the parents were in dispute, however, as to whether East Riding continued to accommodate RO under section 20 of the Children Act 1989, so that he retained his ‘looked after’ child (LAC) status (and would ultimately qualify for ‘children leaving care services’). East Riding contended that it was providing RO with accommodation in the exercise of its functions under the Education Act 1996, rather than in the exercise of its social services functions.

Judgment: the Court of Appeal (Rix, Smith and Richards LJJ) held that the placement was under section 20 of the Children Act 1989:

1) section 22(3A) of the Children Act 1989 suggested that ‘a looked after child’s’ welfare embraced his or her education and that, even in the context of education, the Children Act was to be regarded as the primary statute. The question of education was to be specifically considered as part of the ‘corporate parents’ role which an authority had to undertake when a child entered into the LAC regime. The statutory guidance, Promoting the educational achievement of looked after children, reflected the primary role which the Children Act played where a ‘looked after child’ was concerned, to provide for the right educational help. That guidance, and the statutory guidance, Framework for the Assessment of Children in Need and their Families, reflecting statute, required social services and education departments to work together to address the needs and welfare of the child.

2) Given that both the social services and education departments were persuaded of the need for the specialist residential placement, it was impossible to regard the special educational needs placement in this case on these particular facts as being provided wholly or mainly to meet RO’s educational needs as distinct from being provided to meet both those needs and the needs for which he had become and was a looked after child. It was plain that RO required full-time accommodation in his specialist placement in order to give him the care, as well as the educational assistance, which his needs, and his parents’ inability to cope with and control him, demanded.

3) The council did not ask itself, let alone give anxious scrutiny to, the question whether the factors which had led to respite care, when they were carried over into the placement at Horton House, necessitated a continuation of RO’s LAC status. They merely assumed that the status came to an end with the ending of the respite care which had brought that status into being. That was a legal error more fundamental than irrationality.

4) The council’s recognition that RO’s needs and the limits of his parents’ coping abilities meant that RO needed a residential placement brought the case within section 20(1)(c) of the Children Act 1989, and meant that it would be wrong to regard the council to have been exercising a mere power rather than their statutory duty.