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Session 2002 - 03
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| Judgments - Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant)
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte A (FC) (Appellant) ON THURSDAY 23 OCTOBER 2003 The Appellate Committee comprised: Lord Nicholls of Birkenhead Lord Steyn Lord Hope of Craighead Lord Millett Lord Scott of Foscote HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSERegina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant)Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant)Regina v. London Borough of Lambeth (Respondents) ex parte A (FC) (Appellant)[2003] UKHL 57LORD NICHOLLS OF BIRKENHEAD My Lords, 1. These three appeals concern the responsibilities of local authorities for the accommodation of children who are in need. The first and principal legal issue relates to the nature and extent of the duty imposed on local authorities by section 17 of the Children Act 1989. The claimants' case is that section 17(1) requires a local authority to assess the needs of a child who is in need and to meet his needs when they have been assessed. The defendant local authorities refute both limbs of this claim. A second issue is whether a local authority may insist on providing accommodation for a child alone, as distinct from a child and his mother, when a child is in need of accommodation and it would cost no more to provide accommodation for both of them. 2. In two of the cases the accommodation problems of the claimants have been resolved since the proceedings started. In the third case, involving two disabled children, there is an issue between the parties on the quality of the accommodation currently provided for the children and their family. I must first outline the facts and history of the three cases. In each case the claimant was a mother as a single parent. The three claimants are G, A and W. The three cases3. The first case, in chronological sequence is G's case: R (on the application of G) v London Borough of Barnet. G is a person from abroad who, until recently, was not eligible for housing assistance. She is a Dutch national of Somali origin. She has a son, born in May 1999. She entered this country on a Dutch passport. She claimed she left the Netherlands because of social ostracism encountered there in the Somali community on account of her child's illegitimacy, and that she came to this country to look for the child's father. An application for income support, and an application to the London Borough of Barnet for assistance with housing, were refused because G did not satisfy the habitual residence test. She then sought assistance from Barnet council as the local social services authority. The council assessed the child's needs as best served by the return of both mother and child to Holland where they were entitled at once to accommodation and other benefits. The council did not accept the mother's account of her reasons for coming to London. By a decision letter of 9 October 2000 the council told her that her weekly payments for accommodation and subsistence would stop in a week's time. 4. G applied for judicial review of this decision. It was common ground she was suitable to look after her boy, and that it was not in the boy's best interests to be removed from her care. It was also common ground that if, as happened, the mother refused to return to the Netherlands, the council intended to place the child with foster parents, and to provide no accommodation for the mother. In the event interim relief was granted in the judicial review proceedings. On 18 January 2001 Hooper J quashed the decision of 9 October 2000: see [2000] EWHC Admin 5, (2001) 4 CCLR 33. The child was in need, and it was in the best interests of the child to live with his mother. Given the duties imposed on the local authority by section 17(1) of the Children Act 1989, and the powers granted to it by section 23, the local authority 'has no alternative' but to place the child with his mother assuming it is reasonably practicable to do so. This was so even though the mother was, in the view of the local authority, acting unreasonably: see para 18. 5. The council appealed. On 11 April 2001 the Court of Appeal, comprising Ward, May and Rix LJJ, allowed the appeal and dismissed the judicial review application: [2001] EWCA Civ 540, (2001) 4 CCLR 128. Ward LJ said the duty imposed by section 17(1) was met by providing financial assistance for the return of the mother and child to Holland. The local authority did not act unlawfully in refusing to provide assistance in cash or in kind to assist in the provision of accommodation for the mother and her child. Section 17(3) and (6) imposed no such duty on the local authority. Section 20 imposed a duty to provide accommodation for the child, not for the parent and the child. 6. The second appeal is A's case: R (on the application of A) v London Borough of Lambeth. This concerns a family who have been housed but whose accommodation is not suitable for the children's needs. A is the mother of three children. Unhappily two of the children, aged 9 and 7, are autistic. They have severe learning difficulties and require constant supervision. The family's accommodation is a ground floor two bedroom local authority flat, rented from the London Borough of Lambeth. The flat has no garden or outside play area. The two disabled children are prone to run out of the front door and climb through the windows. This is dangerous because the flat is very close to the road. The accommodation poses severe disadvantages to the children's health and wellbeing. Core assessments of the needs of the children under the Children Act 1989 were to the effect that the family need to be re-housed away from the road, to have a safe outside play area and to have four bedrooms 7. A challenge by the mother to the decision of the council as housing authority was abandoned. The mother now seeks, against the council as local social services authority, a mandatory order compelling the council to find and provide suitable accommodation in line with the children's assessed needs. Both the judge at first instance, Scott Baker J, and the Court of Appeal, comprising Chadwick and Laws LJJ and Sir Philip Otton, held the court has no power to intervene even though, even in the words of Scott Baker J, the family have been 'less than satisfactorily treated' by Lambeth council: [2001] EWCA Civ 1624, (2001) 4 CCLR 486. 8. The third case is W's case: R (on the application of W) v London Borough of Lambeth. W had become homeless intentionally within the meaning of that expression in the homelessness legislation. She has two children, aged 16 and 7. She sought assistance for accommodation from the London Borough of Lambeth as local social services authority. This was refused. Maurice Kay J dismissed an application for judicial review of the council's decision. The decision of the Court of Appeal in A's case obliged him to do so. By a further assessment, dated 9 April 2002, the council decided it should explore placing the children with extended family members as a short term measure while the mother sought alternative accommodation. Should the need arise provision could be made for the children alone under section 20 of the Children Act 1989. 9. On appeal the Court of Appeal, comprising Brooke, Laws and Keene LJJ, dismissed an appeal in respect of the council's decision of 9 April 2002: see [2002] EWCA Civ 613, [2002] 2 All ER 901. The court considered there were not sufficient grounds for interfering with the council's decision. Section 17 imposes a 'target' duty on the council, but in relation to individual children the council only has a power. The council had given intelligible and adequate reasons why it was not willing to exercise its power in this case, given all the other pressures on its resources. Where all else failed the local authority has power to help under section 17, but it is entitled, if it sees fit, to reserve this power for extreme cases which the instant case had not yet become: [2002] 2 All ER 901, 926-927, para 83. Allocation of resources 10. Behind the legal questions arising in these appeals is the seemingly intractable problem of local authorities' lack of resources. Local authorities discharge a wide range of functions, from education to housing, upkeep of roads to disposal of waste. All these activities call for money, of which there is never enough to go round. Often there is also a shortage, sometimes acute, of other resources such as trained staff. 11. The financial resources of local authorities are finite. The scope for local authorities to increase the amount of their revenue is strictly limited. So, year by year, they must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more money they allocate for one purpose the less they have to spend on another. In principle, this decision on priorities is entrusted to the local authorities themselves. In respect of decisions such as these council members are accountable to the local electorate. 12. The ability of a local authority to decide how its limited resources are best spent in its area is displaced when the authority is discharging a statutory duty as distinct from exercising a power. A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose. A power need not be exercised, but a duty must be discharged. That is the nature of a duty. That is the underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice. 13. The extent to which a duty precludes a local authority from ordering its expenditure priorities for itself varies from one duty to another. The governing consideration is the proper interpretation of the statute in question. But identifying the precise content of a statutory duty in this respect is not always easy. This is perhaps especially so in the field of social welfare, where local authorities are required to provide services for those who need them. As a general proposition, the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area. In such cases the local authority may have a wide measure of freedom over what steps to take in pursuance of its duty. 14. Towards one edge of this spectrum are instances such as section 23(1) of the Children Act 1989. Under this subsection it is the duty of a local authority looking after a child to provide accommodation for him while he is in the authority's care. This is a duty of an absolute character. An example of the opposite edge of the spectrum, taken from the field of education, is the broad duty imposed on a local education authority by section 8 of the Education Act 1944, now section 14 of the Education Act 1996, 'to secure that there shall be available for their area sufficient schools .. for providing primary education'. In R v Inner London Education Authority, Ex p Ali (1990) 2 Admin LR 822, 828, Woolf LJ described this as a 'target duty'. 15. Often the duty is expressed in more specific terms than this, but the terms themselves give the local authority an area of discretion. Paragraph 9 of schedule 2 of the Children Act 1989 imposes upon every local authority a duty to provide such family centres 'as they consider appropriate' in relation to children in need within their area. Another form of words apt to give considerable latitude to a local authority is where the duty is 'to take reasonable steps' to achieve a stated object. Paragraph 4 of schedule 2 of the Children Act 1989 is an illustration of this. A local authority is required to take reasonable steps to prevent children within its area suffering ill-treatment or neglect. Again, although not explicitly stated, a statute may implicitly afford a local authority considerable latitude. Section 18(1) of the Children Act 1989 provides that every local authority shall provide such day care for pre-school children in need within its area 'as is appropriate'. In deciding what is appropriate the local authority may properly take into account a wide range of matters including cost. 16. The primary question raised by these appeals is the proper interpretation, in this context, of section 17(1) of the Children Act 1989. Part III of the Children Act 1989 17. Part III of the Children Act 1989, comprising sections 17 to 30, concerns the provision of local support for children and their families. Before the passing of this Act child care law was widely criticised as confusing, unnecessarily complex and in places unjust. The responsibilities of local authority social service departments towards families with children were set out in two different sets of legislation. Child care law provided for children to be supported within the family in certain circumstances. Thus, section 1 of the Child Care Act 1980 imposed on local authorities the duty to make available such assistance as might promote the welfare of children by diminishing the need to receive children into care or to bring them before a juvenile court. Section 2 of the same Act imposed a duty on local authorities to receive a child into voluntary care in certain circumstances. Quite separate from this child care legislation, health and welfare legislation made provision for services for children as part of local authorities' responsibilities for particular groups of people of all ages, such as those who were mentally handicapped or physically disabled. The principal statutes were the National Health Service Act 1977, the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970. 18. One object of Part III of the Children Act 1989 was to unify these two sets of legislation. The intention of the government was to ensure that in all cases the children concerned should receive the standard of care and protection and professional review appropriate to their needs. Local authorities were to be given a broad 'umbrella' power to provide services to promote the care and upbringing of children. The government white paper, 'The Law on Child Care and Family Services' (1987) (Cm 62), explained that broadly speaking all existing powers and duties to provide services to children were to be maintained and amalgamated, sometimes with modifications. This would involve the amalgamation of sections 1 and 2 of the Child Care Act 1980, and the addition of provisions from the health and welfare legislation: see chapter 2, paras 14 to 19. 19. I turn to the relevant legislative provisions. Section 17 of the Children Act 1989 is the first section in a small group of sections concerning provision of services for children 'in need' and their families. A child is taken to be in need if he is disabled or if, without the provision of local authority services, he is unlikely to achieve or maintain 'a reasonable standard of health or development' or his health or development is 'likely to be significantly impaired': section 17(10). A child without accommodation is a child in need: R v Northavon District Council, Ex p Smith [1994] 2 AC 402, 406, per Lord Templeman. Section 17(11) defines disability, 'development' and 'health' in wide terms. 20. Section 17(1) prescribes the 'general duty' of local authorities regarding children in need. The general duty of every local authority is to provide a range and level of services appropriate to the needs of such children:
by providing a range and level of services appropriate to those children's needs.' 21. This general duty is augmented by a motley collection of 'specific duties and powers' set out in Part I of schedule 2: section 17(2). Local authorities are given these specific duties and powers principally for the purpose of facilitating the discharge of the general duty imposed by section 17(1). Some of these specific duties and powers are general in their impact on children, such as the duty to produce and keep under review plans for the provision of children's services under Part III of the Act (paragraph 1A). Others relate to the circumstances of a particular child. Two examples will suffice, one of a power, the other of a duty. A local authority is empowered to assess the needs of a child in need under the Children Act 1989 at the same time as any assessment of his needs is made under other enactments, such as the Chronically Sick and Disabled Persons Act 1970 (paragraph 3). A local authority is under a duty to take such steps as are reasonably practicable to enable a child who is not living with his family to live with them or promote contact between them if that is necessary to safeguard or promote his welfare (paragraph 10). 22. Two other provisions in section 17 call for mention. Both are enabling powers in respect of any service provided by an authority in the exercise of functions conferred on the authority by section 17. If provided with a view to safeguarding or promoting the child's welfare, the service may be provided for the family of a particular child in need, or any member of his family: section 17(3). The service may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash: section 17(6). The reference to accommodation in this subsection was inserted by section 116 of the Adoption and Children Act 2002 to lay at rest doubts arising from the Court of Appeal decision in A's case. 23. Section 17 covers a wide range of services. Section 20 is focused more narrowly. It is concerned specifically with the accommodation needs of children in need. Section 20 obliges every local authority to provide accommodation for children in need who appear to need accommodation:
24. 'Prevented … for whatever reason' in paragraph (c) is to be interpreted widely. It includes a case where the person caring for the child is intentionally homeless. A child is not to be visited with the shortcomings of his parents. A similarly wide interpretation was given to the comparable provision in section 1 of the Children Act 1948 the predecessor to section 2(1) of the Child Care Act 1980: see Attorney General ex rel Tilley v Wandsworth London Borough Council [1981] 1 WLR 854. Section 17(1) of the Children Act 1989 25. I turn to the interpretation of section 17(1). Section 17(1) is not just a statement of general principle, important though it is in that regard. Nor does it merely confer a new or enlarged function on local authorities. It imposes a duty. It imposes a duty expressed to be additional to the other duties imposed by Part III of the Children Act 1989. By definition, the additional obligation thus imposed on local authorities is enforceable by the court in appropriate circumstances on the application of a person with sufficient interest. The crucial issue is to identify the content of this additional duty. 26. At first sight section 17(1) does not seem to impose a duty in respect of the particular needs of an individual child. The duty is expressed in general, overall terms regarding the collective needs of children in need in the local authority's area. It is not expressed by reference to the needs of any one child. This generality, however, is not conclusive. The generality of an obligation regarding children in a local authority's area is not of itself inconsistent with the obligation being a duty in relation to the needs of individual children in the area. An obligation in respect of the general may include an obligation in respect of the particular. A duty in respect of an entire class or group as a whole may include a duty in respect of the individual members of the class or group. It all depends upon the language read in its context. 27. So I turn to the language of section 17(1). The starting point is to note the statutory description of the duty as a 'general' duty. Read in context, this description is not, of itself, of much value as a pointer on the issue now under consideration. This description is used by way of contrast to the 'specific' duties and powers mentioned in section 17(2). The latter duties and powers are specific because they relate to particular, limited aspects of the general duty imposed by section 17(1). The purpose of section 17(1) is wider. The purpose is to set out, at the very forefront of Part III and by way of contrast to the specific duties and powers, a primary additional duty of a more comprehensive character. 28. Next, the nature of the general duty imposed on a local authority by section 17(1): this is twofold. The duty is to safeguard and promote the welfare of children within its area who are in need, and to promote the upbringing of such children by their families. 'Safeguard' and 'promote' are broad terms; necessarily so, in the context of the welfare of a child. There is nothing in the use of these terms to suggest the duty is not a duty in respect of each child within the local authority's area who is in need. The phrase 'children within their area who are in need' refers to all the children in need within the local authority's area. But the duty to promote the welfare and upbringing of all such children makes little sense unless it is a duty in respect of the welfare and upbringing of each such child. Indeed, if this were not so section 17(1) would be a poor sort of additional general duty. Section 22 is another example of a duty, described as a general duty, to safeguard and promote the welfare of children. A local authority 'looking after any child' is obliged 'to safeguard and promote his welfare'. It cannot be doubted that this duty under section 22(3), although described as a general duty and although expressed in broad terms, is a duty which relates to the individual child and is enforceable as such. 29. Section 17(1) then proceeds to state the means by which this duty is to be discharged: 'by providing a range and level of services appropriate to those children's needs.' This, again, is the language of generality. But, here also, the language could hardly be otherwise, given the comprehensive nature of the obligation imposed. Section 17(1) deliberately eschews references to particular types of services. Section 17(1) is intended to be wide in its scope because the needs of children vary widely. So local authorities must provide an appropriate range and level of services, whatever those services may be. Section 17(3) and (6) make clear that the types of services mentioned in those two subsections are among the services a local authority may provide in carrying out its duty under section 17. 30. Thus far I am broadly in agreement with the interpretation urged by the claimants. But I stop short of the conclusion submitted by them. In my view section 17(1) does not impose an absolute, or near absolute, duty on local authorities to meet the specific needs of every child who is in need, whatever those needs may be. There is no place for absolutes in such a wide-ranging duty regarding the welfare of children. Nor would that be consistent with the qualified nature of some of the specific duties imposed in Part I of schedule 2. The 'needs' of a child for services is itself an inherently imprecise concept. 'Needs' are open-ended. Some limit can be placed on what are to be regarded as the needs of a child for the purposes of this legislation if the legislation is read, as it should be, as a reference to reasonable needs. Even so, this leaves much scope for differing views. Questions of degree will often arise. Likewise, the statutory obligation to provide a range and level of services 'appropriate' to the needs of children in need gives a local authority considerable latitude in determining what is 'appropriate' in an individual case in all the circumstances. In some cases the type and level of service provided may properly fall short of meeting all the child's needs as assessed. The extent of the latitude in each case depends upon the circumstances, prominent among which are the nature of the service in question and the nature and extent of the needs of the child. Cost is also an element which may properly be taken into account in deciding what is 'appropriate' in a particular case. The extent to which cost, and hence the resources of a local authority, may be taken into account depends upon all the circumstances including how basic is the assessed need, the ease or difficulty with which it may be met, and the consequences of not meeting it. In a word, despite this latitude the council must act reasonably. |
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