Promptness Prevails: Surrey CC v BC (2025) – Curtailing the “Continuing Duty” Doctrine and Reinforcing CPR 54.5 in Children-Act Judicial Reviews

1. Introduction

In Surrey County Council v BC ([2025] EWCA Civ 719) the Court of Appeal allowed Surrey County Council’s appeal against declarations that it had owed, and still owed, duties to a vulnerable young person under section 20 of the Children Act 1989 (“CA 89”). The judgment is important on two fronts:

Procedural: it restates – with unusual emphasis – the need for prompt judicial review, holds that CPR 54.13 does not shield permission decisions from appeal, and explains when the High Court errs in granting extensions of time;
Substantive: it clarifies how far local authorities may rely on professional social-work judgment when refusing to accommodate 16–17-year-olds and rejects the notion that an historic s.20 duty automatically morphs into a “continuing duty” capable of reviving time-barred claims.

BC, a 17-year-old with complex needs, fell out with his parents in 2019 and stayed informally with a friend’s mother. In 2022 he issued judicial review proceedings claiming he had been owed s.20 accommodation, thereby becoming a “looked-after child” and later a care leaver entitled to support. Calver J agreed, granted declarations and extended time. The Court of Appeal (Lewison, Andrews & Warby LJJ) has now reversed that decision.

2. Summary of the Judgment

Delay fatal. The claim should have been brought no later than early 2020; starting in August 2022 breached both limbs of CPR 54.5. Calver J’s extension of time was vitiated by error of principle and an incorrect understanding of “continuing breach”.
No s.20 duty. Applying a Wednesbury lens, the local authority’s decision that BC did not require accommodation in September 2019 was rational. Early-help support via Targeted Youth Support (TYS) was a legitimate response.
No “continuing duty”. Earlier first-instance cases concerning children still under 18 did not create a rule that an historic failure to accommodate amounts to an ongoing duty. BC sought only to vindicate accrued rights, not remedy a current breach.
Consequentially, BC was never a looked-after child, never a qualifying or former relevant child, and the declarations were set aside. The respondent’s cross-appeal (seeking an earlier s.20 start-date) was dismissed.

3. Analysis

3.1 Precedents Cited

The Court positioned its reasoning within a dense tapestry of authority.

Promptness / Extension of Time
• R v Institute of Chartered Accountants ex p Andreou (1996) – centrality of promptness.
• Good Law Project v SSHSC [2022] – stricter modern approach; public-law finality.
• Thornton Hall [2019], Gerber [2016] – appellate scrutiny of extensions.
• Ruddock [1987], Furneaux [1994] – ignorance of decision vs solicitor error.
Appealability of permission rulings
• MD (Afghanistan) [2012] – r.54.13 bars setting aside at first instance, not appeals.
Children Act Substantive Tests
• House of Lords trilogy – Barnet [2003], Hammersmith & Fulham [2008], Southwark [2009] – structure of s.20 decisions.
• Croydon [2009] – fact vs evaluative judgment.
• Recent CA decisions – Fylde Coast Farms [2021]; TW v Essex [2025] – reiterating rationality threshold.
“Continuing duty” run-offs
• First-instance cases (L v Nottinghamshire, Collins, SA v Kent, T v Hertfordshire) distinguished as fact-sensitive and child-centred; none created a principle overriding CPR 54.5.

3.2 Court’s Legal Reasoning

Identify the decision under challenge. The only material decision was SCC’s choice in Sept 2019 not to treat BC as a s.20 child. Judicial review must scrutinise that decision, not a general state of affairs.
Calculate time limits properly. On any view, the three-month long-stop expired by Jan 2020. The judge below never pinned down this date and therefore misstated the delay analysis.
Apply Wednesbury rationality to professional assessments. Whether BC was a “child in need” and “required accommodation” involved social-work expertise. The threshold for a court to substitute its view is high; Calver J impermissibly recast merits.
Weight to wishes of an older child. At 17 yrs 9 mths BC wished to stay with K’s family and pursue housing-authority routes. Sections 17(4A) & 20(6) compelled SCC to respect, though not be bound by, those wishes.
Early Help vs Statutory Support. National Guidance para 3.2 expressly envisages “targeted early help” where no imminent homelessness exists. SCC could rationally opt for TYS without triggering s.20.
Extension of time misapplied. The judge (a) ignored BC’s duty to act promptly, (b) blamed SCC disclosure for claimant delay, and (c) reversed burden of proof. No good reason justified a 2½-year slippage.
No “continuing duty”. The nuisance analogy fails: once a local authority rationally decides no s.20 duty arises, no fresh cause of action accrues daily. Past failures create, at most, accrued rights – they do not stop the limitation clock.

3.3 Likely Impact of the Decision

Tightening of procedural discipline. Claimants – particularly care-leaver status litigants – must now assume that any challenge to historic s.20 entitlements must be lodged within three months of the impugned decision or, at the latest, promptly once advice is taken. Extensions will be rare.
Limiting the “look-back” industry. Many firms have pursued historic claims asserting that past informal placements were in truth s.20 arrangements. The Court of Appeal’s repudiation of a general “continuing duty” significantly reduces the scope for such retrospective relief once the young person is over 18.
Clarification for local authorities. Social-work assessments placing young people into early-help pathways (rather than s.20) will get stronger deference, provided records evidence a reasoned decision and wishes are canvassed.
CPR 54.13 clarified. Defendants may appeal permission decisions that embed extensions of time. Arguing a lack of jurisdiction will not avail claimants.
Strategic litigation advice. Solicitors must now:
- issue protectively within three months where s.20 status is arguable;
- avoid delaying for fuller disclosure; and
- warn adult clients that accrued care-leaver rights may be lost if limitation passes.

3.4 Complex Concepts Simplified

Judicial Review (JR): A rapid public-law remedy where the court checks whether a public body acted lawfully, rationally and fairly. It is not about merits but legality.
CPR 54.5: Requires JR claims to be filed “promptly” and within three months of when grounds first arose. Both limbs matter; a claim can be out of time even inside three months if not prompt.
Wednesbury Unreasonableness: A decision is unlawful only if it is one no reasonable authority could make – a very high bar.
Section 17 vs Section 20 – the Key Difference
• s.17 – duty to assess and consider services for a “child in need”.
• s.20 – mandatory duty to provide accommodation where thresholds are met, creating “looked-after” status and extensive follow-on entitlements.
Early Help / TYS: Non-statutory support targeted at adolescents with complex but non-acute needs – mediation, drugs advice, NEET coaching – avoiding the heavier intervention of statutory care.
“Continuing Duty” vs “Accrued Right”: A continuing duty renews daily (e.g., ongoing failure to house a current child). An accrued right arises from a past breach; limitation applies from the date of breach.

4. Conclusion

Surrey CC v BC reshapes the litigation landscape for retrospective care-leaver claims. The Court of Appeal has:

Reasserted strict compliance with CPR 54.5;
Confirmed that permission-stage extensions are appealable and scrutinised robustly;
Elevated the deference owed to social-work evaluations, especially where early-help solutions are chosen;
Rejected the broad “continuing duty” argument that once a s.20 duty arose it persists indefinitely; and
Emphasised the evidential and legal importance of the young person’s own wishes as adulthood approaches.

The case heralds a more constrained environment for late judicial reviews seeking to convert informal teenage living arrangements into lucrative statutory entitlements. Lawyers and local authorities alike must heed its twin lessons: act promptly and record professional reasoning diligently.