E, R (on the application of) v London Borough of Islington, Court of Appeal - Administrative Court, June 30, 2017, [2017] EWHC 1440 (Admin)

Resolution Date:June 30, 2017
Issuing Organization:Administrative Court
Actores:E, R (on the application of) v London Borough of Islington

Case No: CO/2907/2016

Neutral Citation Number: [2017] EWHC 1440 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 30 June 2017

Before :


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Between :

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(instructed by Hopkin Murray Beskine Solicitors LLP) for the Claimant


(instructed by the Legal Department, London Borough of Islington) for the Defendant

Hearing dates: 29 and 30 March 2017

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JudgmentDeputy High Court Judge Ben Emmerson QC :


  1. The claimant (``E'') is a nine year old child who brings this application through her mother and litigation friend. It raises two quite independent challenges to two separate sets of decisions made by the London Borough of Islington (``Islington''). Both challenges are heavily fact-dependent, and the first ground raises a number of complex and novel points of law. Hence the length of this judgment. On 4 November 2016, permission was granted on both grounds by Jefford J.

    Ground 1: E's right to Education

  2. The first ground of challenge concerns the scope and content of the right to education under article 2 of the First Protocol to the European Convention on Human Rights. E contends that Islington's conduct (through a combination of acts and omissions) has violated that article and was therefore unlawful under section 6 of the Human Rights Act 1998. She claims damages as just satisfaction under section 8 of the Act.

    The factual history

  3. E currently lives with her mother (``C'') and two younger siblings (aged four and two) in temporary accommodation in Islington where the family has resided since 28 April 2016. This temporary accommodation is provided by Islington pursuant to Part 7 of the Housing Act 1996. C is profoundly deaf, has no speech (other than perhaps a few words), and is almost completely illiterate. Prior to the events described in this judgment, she had been subjected to sustained domestic violence at the hands of her husband. The first ground of challenge concerns three periods (of several weeks at a time) between June 2015 and June 2016 when E fell out of education.

  4. The sequence of events that led to these periods of absence began in May 2015, when C eventually fled what was then the family home in the London Borough of Southwark, with all three children. On 7 May 2015, with the assistance of a domestic violence charity called Solace Women's Aid (``SWA''), C applied to Islington for assistance with housing under section 183 of the Housing Act 1996. The application was made on the basis that she was threatened with homelessness and in priority need of accommodation because she had ceased to occupy the family's previous residence due to domestic violence.

  5. Islington initially declined to accept that it owed any duties to the family, maintaining that any relevant homelessness obligations fell on the London Borough of Southwark. As a result, SWA provided the family with temporary accommodation at a women's refuge in Islington (Mary Robinson House), beginning on 4 June 2015.

  6. In the chaotic circumstances of this transition, and due in part also to her disabilities, C was not able to pre-arrange schooling facilities for E. As will become apparent, the nature of her disabilities is such that she has difficulty in accessing public services without professional assistance.

  7. On 12 June 2015, SWA wrote on C's behalf to the Education Admissions Team at the London Borough of Islington notifying them that E was living in the borough and was in need of urgent educational provision. The letter included the following passage:

    ``[E] is top priority for an in-year application under Islington's Fair Access Policy (transition and uncertainty, alongside beginning her recovery from domestic abuse). [E] is not currently in education. As a result, she is at risk of experiencing poor outcomes. School offers children who have experienced domestic abuse a safe place to learn, grow, make friends and participate in school life. [E] left behind [her] school, [her] friends, [her] home and [her community]. [E] enjoyed school and excelled in literacy...[E] requires a supportive and nurturing environment to achieve her potential, and gain a sense of belonging during a period of uncertainty.''

  8. It is clear then that, at least from 12 June 2015, Islington had been put on notice that E was a school-age child, residing in the borough, who was not in education. Islington was also aware that she had priority needs that ought to be taken seriously. The authority's initial response was dilatory, and as a result E was out of education altogether for a period of two months and three weeks.

  9. Part of this time constituted school holidays. For reasons explained later in this judgment, I have come to the conclusion that when computing E's absence from school for the purposes of article 2 of the First Protocol, the holiday periods fall to be taken into account, but only as part of the general background. It is the term- time absences that are critical.

  10. No attempts were made to provide E with alternative educational facilities in accordance with section 19 of the Education Act 1996, and Islington has provided no satisfactory explanation for this period of inactivity. Any such steps as may have been taken were evidently quite ineffectual, and Islington has advanced no case-specific or individualised resource arguments which could justify this period of delay. The same is true of each subsequent period of absence.

  11. It is important to stress from the outset that, due to her disabilities, C was unable to provide E with any form of home-based education during these periods of absence. She was not even able to read with her. Such was the poverty of communication in the home, that these absences from school must necessarily have impacted on E (educationally and socially) to an even greater extent than they would have impacted on a child whose primary carer was able to provide some alternative support at home.

  12. Moreover, the evidence discloses that whilst in the home E found herself unavoidably providing certain forms of support for C, both in terms of C's communication with the outside world, and in terms of her care of her younger siblings. When Islington later conducted a young carer's assessment, the responsible social worker considered it ``highly inappropriate'' that C had come to rely upon E as a translator in this way (see paragraph 232 below). I will return to this question later in the judgment, but at this stage it is sufficient to point out that education in a mainstream school provided a critically important outlet for E, the only environment in which she could regularly communicate through speech with others (both pupils and teachers) and thus develop her potential.

  13. On 4 September 2015, E began attending St. Mary's School in Islington. However, she remained there for only seven weeks. On 21 October 2015 Islington accepted that it owed a full housing duty to the family under Part VII of the Housing Act 1996. It wrote to C accepting that she was eligible for assistance, was non-intentionally homeless and was in priority need, with the result that Islington was obliged to provide the family with accommodation pursuant to the main housing duty under section 193(2) of the 1996 Act. Despite this concession, it took Islington a further two months to arrange the necessary accommodation. On or about 3 November 2015 Islington arranged for the family to be provided with out of borough temporary accommodation in the London Borough of Hammersmith and Fulham. As a result of this move, E fell out of education once again, for reasons that will become apparent.

  14. Pausing there, a pivotal point stressed by Mr. Kelvin Rutledge QC for Islington is that on 5 November 2015, two days after the transfer was arranged, the authority's housing department formally notified Hammersmith and Fulham that the family for which it had a statutory housing responsibility had been transferred out of borough and that Islington had accordingly delegated the discharge of its housing responsibilities to Hammersmith and Fulham (albeit on a temporary basis).

  15. The notice, issued pursuant to section 208 of the Housing Act 1996, provided the names and dates of birth of each member of the family and the address at which they were to be accommodated in Hammersmith and Fulham. From a casual reading of this data, it could be deduced that E was a school-age child. This fact carried the necessary implication that there must be a statutory duty on one or other local authority to satisfy itself that E was receiving suitable education. This was therefore a situation that cried out for effective liaison between the two authorities.

  16. The notice gave no indication of E's current educational arrangements, or of any plans or proposals that Islington may have had for her future education during the period of the temporary placement out of borough. It did not suggest which of the two authorities should assume primary responsibility for the discharge of the statutory obligation to educate her, or suggest any arrangements (formal or otherwise) whereby the two authorities could co-ordinate over E's educational needs to ensure they were met promptly and that she could maintain a reasonable measure of educational continuity.

  17. In fact, the notice made no mention of education at all. Of particular significance, it gave no explicit or implied indication of the need for fresh educational provision to be made by Hammersmith and Fulham, and failed to spell out the critical piece of information that any existing arrangements for her education would necessarily be disrupted by the temporary transfer. The importance of this notice to the outcome of...

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