R (E) v Islington London Borough Council  EWHC 1440 (Admin), 30 June 2017
This was a complex judgment involving a dispute as to the scope of E’s right to education under Article 2, protocol 1 ECHR (European Court of Human Rights). This post focuses on the elements of the decisions of relevance to housing practitioners.
At the time of the court proceedings, E lived with her mother and two younger siblings in temporary accommodation, provided pursuant to Part 7 Housing Act 1996 in the London Borough of Islington. They had lived there since April 2016. The challenge concerned three periods (of several weeks at a time) between June 2015 and June 2016 when E fell out of education. This occurred when E’s mother - who at the time had lived with the family in the London Borough of Southwark – had fled the family home having been subject to sustained domestic violence at the hands of her husband.
Having fled from home in May 2015, with the assistance of a domestic violence charity, she applied to Islington for homelessness assistance. Initially, Islington declined to assist stating that the homelessness obligations lay with Southwark. As a result of Islington’s refusal to assist, the charity assisted the family in obtaining accommodation at a women’s refuge in Islington. In June 2015, the charity duly notified Islington that E was in the borough and was in need of urgent educational provision. However, it was not until September 2015 that E began to attend school once more.
Shortly after, in October 2015, in a departure from the previous position, Islington accepted that it owed the main housing duty to E’s family. However, accommodation was provided to the family out of borough, in the area of Hammersmith and Fulham. Notice under s208 Housing Act 1996 was provided to Hammersmith and Fulham indicating that the family included E: a school age child. Nevertheless, no educational provision was made by either authority until after Christmas.
The family then remained in Hammersmith and Fulham for six months before being moved back to Islington. There followed a further period during which no educational provision was made for E with the result that she was out of school for another eight weeks.
An application for judicial review was subsequently brought challenging Islington’s failure to provide appropriate educational provision. The claim succeeded with the judge finding that there had been a breach of E’s rights under Article 2, protocol 1 ECHR.
In reaching this conclusion the court considered the legal obligation relating to out of borough placements under Part 7 Housing Act 1996. Interpreting and applying the guidance given by Baroness Hale in Nzolameso v Westminster City Council  UKSC 22,  PTSR 549 in relation to s11 Children Act 2004, the judge extracted the following principles at -:
"However, in addition to the considerations listed by the Secretary of State in Nzolameso there is also the section 11 statutory duty. Section 11 is not limited to the imposition of an obligation on the sending authority to have regard to the need to safeguard and promote the welfare of children in making its transfer decision. That duty (which overlaps to some extent with the relevant guidance identified in Nzolameso) is to be found in section 11(2)(a). But section 11(2)(b) imposes a separate and quite specific duty to ensure that when delegating any of its functions to another authority, the sending authority has properly taken into account the need to ensure that the educational welfare of a child will be safeguarded by the receiving authority. In other words, the sending authority has a continuing duty to satisfy itself, throughout the period of the temporary placement, that the receiving authority has taken (and will continue to take) the necessary steps to safeguard the child's educational welfare. The statutory duty under section 11(2)(b) is part and parcel of the considerations that must be taken into account by the sending authority before it makes a temporary out of borough transfer. It thus comes into the same category as the series of considerations identified by the Secretary of State in Nzolameso, and falls to be considered by the local authority alongside them.
As I have said, it follows from the terms of section 11(2)(b) that where an authority's housing department is considering whether to transfer a school-age child out of borough, the authority must take all necessary steps to satisfy itself that the receiving authority has satisfactory arrangements in place to safeguard the child's educational welfare. If the principles laid down in Nzolameso fall to be applied to this statutory duty, as I find they do, then the sending authority would also need to put itself in a position to demonstrate objectively, and by reference to contemporary reasoning and records, how and why it came to the conclusion (if it did) that the delegation of its housing obligations would not imperil the child's educational welfare. In practice, this is something that the sending authority could only be able to do if they had liaised with the education department of the receiving authority and satisfied themselves that suitable arrangements were or would be in place.
In my opinion, the principles laid down in Nzolameso apply with formidable analogical force to the statutory duty arising under section 11(2)(b). I am therefore satisfied that the reasoning and record-keeping obligations identified in Nzolameso apply equally to the duty imposed by section 11(2)(b) in any case in which a local authority proposes to authorise the temporary out of borough transfer of a homeless school-age child.
Applying the approach laid down by Baroness Hale in Nzolameso to the statutory duty arising under section 11(2)(b) of the 2004 Act, the sending authority must be able to demonstrate how and why it took or failed to take the steps that it did. It must also be in a position to provide objective evidence showing how it came to the conclusion (if it did) that those steps were consistent with its statutory duty under section 11(2)(b).
The upshot of this analysis is that any local authority contemplating the transfer of a school-age homeless child into temporary accommodation out of borough is under a Nzolameso duty to make contemporary records of its decision-making and its reasons, capable of explaining clearly how it evaluated the likely impact of the transfer on the educational welfare of the child, in accordance with its primary obligation under section 11(2)(a). In addition, however, by virtue of section 11(2)(b), it must be able to demonstrate, by reference to written contemporaneous records, the specific process of reasoning by which it reached the decision (if it did) that the authority to which it was delegating its housing obligations would secure the child's educational welfare, either through making appropriate arrangements for school admission, or by making available alternative educational provision under section 19 of the Education Act 1996."
The full judgment is available: R (E) v Islington London Borough Council  EWHC 1440 (Admin), 30 June 2017