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Challenging decisions

This content applies to England

Challenging decisions or assessments made under the Children Acts.

There are a number of ways in which an assessment or decision made by a local authority under the Children Acts can be challenged.

Complaints under section 26

All local authorities are required to establish a procedure for considering representations, including complaints.[1] The Adoption and Children Act 2002 places a duty on local authorities to arrange advocacy services for looked after children who wish to make a complaint.[2]

The complaints procedure can be used by:

  • the young person
  • her/his parent or carer, or
  • any other person the authority considers to have a 'sufficient interest' in the young person's welfare.[3] This should include an adviser acting with the authorisation of the young person concerned. The guidance encourages authorities to be flexible on such matters.[4]

On receipt of a complaint, the authority must appoint an independent person to consider the complaint together with the authority.[5] A response to the complaint must be provided within 25 days.[6] If the complainant is not satisfied, the complaint can be reconsidered by a panel, which must include one independent person. The complaints procedure can be used when a young person has been provided with accommodation but is dissatisfied with it, or when a service provided is being discontinued. It is unlikely to be of use to a homeless young person who has been denied accommodation as the whole process can take over three months.

Judicial review

It may be possible to challenge Children Act decisions by means of judicial review if the complaints procedure is inappropriate or fails to resolve the issue. Judicial review could be used, for example, where a homeless young person needs accommodation immediately, or when a young person wishes to challenge a local authority's decision that s/he has been accommodated under section 17 and it is not obliged to carry out any duties under the Children (Leaving Care) Act 2000.[7]

However, it may be of less use in cases where there is no enforceable duty to compel a local authority to provide any specific services. For example, section 17(1) of the Children Act is a general duty, which is performed by providing an appropriate range and level of services. It does not give rise to a specific duty (such as to provide accommodation), although the authority must still follow the principles in section 17 in making its decision, and a failure to do so could be challengeable by judicial review.[8]

Judicial review is not an appeal against a decision itself, but a challenge to the way in which the decision was made. Please see the page on Judicial review procedure for more detailed information.

Ombudsman

Complaints of maladministration can be made to the Local Government and Social Care Ombudsman, who can look at the way in which a local authority has handled an application for assistance. Please see the section Complaints to the Ombudsman for details.

Secretary of State

The Secretary of State can declare a local authority to be 'in default' where s/he is satisfied that the authority has unreasonably failed to comply with its duties under the Children Act. The Secretary of State can direct the authority to comply with a duty.[9] This default power is only likely to be used in response to a failure of an authority to provide a service as a matter of course, rather than to resolve the failure to provide a service for a particular young person. It is not an alternative remedy to judicial review for a person complaining of a breach of a local authority's duty.[10]

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.26 Children Act 1989.

[2] s.26A Children Act 1989, as inserted by s.119 of Adoption and Children Act 2002.

[3] s.26(3)(e) Children Act 1989.

[4] para 9.7 Children Act 1989 Guidance and Regulations - Volume 3: Planning Transition to Adulthood for Care Leavers, DoH, 2010.

[5] s.26(4) Children Act 1989.

[6] reg 17(3) Children Act 1989 Representations Procedure (England) Regulations 2006 SI 2006/1738.

[7] H v Wandsworth LBC: Barhanu v Hackney LBC: B v Islington LBC [2007] EWHC 1082 (Admin); R (on the application of S) v Sutton LBC [2007] EWCA Civ 790.

[8] R v Barnet LBC ex parte G: R v Lambeth LBC ex parte W: R v Lambeth ex parte A [2003] UKHL 57.

[9] s.84 Children Act 1989.

[10] R v Brent LBC ex parte Sawyer [1994] 1 FLR 203.

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