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)

(back to preceding text)

    31.  The degree of latitude thus afforded to a local authority may make it difficult for a claimant to establish a breach of this duty. But this is not a sufficient reason for denying the existence of the duty. Nor are the default powers of the Secretary of State under section 84 of the Children Act 1989 an adequate substitute for the ability to have recourse to the court. These default powers cannot be expected to provide an adequate remedy in individual cases.

    32.  I am fortified in my view that section 17 imposes a duty in respect of the individual child by noting the consequences of the alternative approach. On the local authorities' approach, since section 17(1) does not impose a duty in relation to an individual child, it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1). That cannot be right. That would go far to stultify the whole purpose of Part III of the Children Act 1989. The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need. Failure to carry out this duty may attract a mandatory order in an appropriate case, as occurred in R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235 (2001) 4 CCLR 295. Richards J ordered a local authority to carry out a full assessment of a child's needs in accordance with the guidance given by the Secretary of State in 'Framework for the Assessment of Children in Need and their Families' (March 2000).

    33.  Where does such an assessment lead? According to the local authorities, nowhere as a matter of legal obligation, so far as an individual child is concerned beyond, presumably, an obligation on the part of the authority to consider the assessment and decide whether to exercise any of its statutory powers. That would be a surprisingly weak outcome. That would represent a lacuna in the law relating to children in need. I cannot think Parliament intended this should be so. I prefer a different approach. If section 17(1) is apt to impose a duty on a local authority to take reasonable steps to assess the needs of an individual child in need, it is equally apt to impose the duty mentioned above to provide a range and level of services 'appropriate' to those needs.

    34.  In several cases it has been assumed, or conceded, that section 17(1) imposes an obligation in respect of the needs of an individual child; for instance, in R v Tower Hamlets London Borough Council, Ex p Bradford (1997) 1 CCLR 294, 301, per Kay J, and R v Wigan Metropolitan Borough Council, Ex p Tammadge (1998) 1 CCLR 581, 584, per Forbes J. In other cases, where the point has been argued, the contrary view has been preferred. These cases culminated in the decision of the Court of Appeal in the instant case involving A and her two disabled children: R (on the application of A) v Lambeth London Borough Council (2001) 4 CCLR 486. The Court of Appeal held that an assessment of needs under section 17 does not give rise to a duty enforceable at the suit of an individual, although a decision by a local authority not to exercise its powers under section 17 is open to judicial review on ordinary principles. For the reasons I have given I respectfully consider that the responsibilities of local authorities under section 17(1), although far from absolute, are of a higher order than this.

    35.  I should add a further comment regarding the assessment of needs under section 17. In R v Gloucestershire County Council, Ex p Barry [1997] AC 584 a question about the relevance of cost arose in the context of a duty to make certain arrangements where a local authority is satisfied this is 'necessary' in order to meet the 'needs' of disabled persons. The majority of the House held that on the proper interpretation of section 2(1) of the Chronically Sick and Disabled Persons Act 1970 the local authority is entitled to have regard to its resources when performing this duty. Whether, under that section, resources should be taken into account when assessing 'needs' as distinct from when the authority is deciding whether it is 'necessary' to meet those needs, is not a matter which arose in Barry's case. In Barry's case the local authority had merged the two stages into one by providing services in accordance with elaborate 'eligibility criteria'. What was in issue was whether the authority could lawfully raise the eligibility criteria because of shortage of money. Later cases, such as R v Sefton Metropolitan Borough Council, Ex p Help the Aged (1997) 1 CCLR 57 and R v East Sussex County Council, Ex p Tandy [1998] AC 714, show it is desirable to keep these two stages separate. Ordinarily cost, where relevant, will be a matter to be taken into account by a local authority when considering its response to an assessed need rather than at the stage of assessment. That is the position under section 17(1) of the Children Act 1989.

    Accommodating a child with his parents

    36.  I now turn to the second principal issue. This concerns one particular facet of the problem of providing accommodation for families with children. This problem arises in G's case R (on the application of G) v London Borough of Barnet) [2001] EWCA Civ 540, (2001) 4 CCLR 128) and W's case (R (on the application of W) v London Borough of Lambeth [2002] EWCA Civ 613, [2002] 2 All ER 901). These two appeals raise a question solely of principle. As already noted, the accommodation problems of these claimants have been resolved since the proceedings started. The appeals are being pursued because the question of principle is of everyday importance. The question concerns the circumstances in which a local social services authority may be obliged to provide accommodation and subsistence for a child together with his mother, as distinct from the child alone, under sections 17 or 23 of the Children Act 1989.

    37.  In the cases of G and W the local authority was minded, if necessary, to provide accommodation for the children under section 20 of the Children Act 1989 but not their mothers. This raises an acutely difficult problem. Before considering this I must first mention, and reject, a point made by Mr Howell QC based on section 23 of the Children Act 1989. Mr Howell submitted that if a local authority provides a child in need with accommodation in fulfilment of its duty under section 20, the local authority is under a duty to make arrangements to enable the child to live with his mother. If necessary, the local authority must provide accommodation for the mother as well as the child. The source of this duty, he submitted, is section 23(6) of the Act.

    38.  I cannot accept this submission. Section 23(6) is one of the provisions in section 23 concerned with the way a local authority is to discharge its obligation to provide accommodation for a child whom it is looking after. The section is not concerned with providing accommodation for anyone else. The relevant effect of section 23(6) is to require a local authority looking after a child to 'make arrangements to enable him to live' with a parent or other specified person unless that would not be reasonably practicable or consistent with his welfare. This provision assumes the mother or father of the child already has accommodation which the child may enter and share so as to live there with his parent. Similarly with the other persons, such as relatives and friends, mentioned in paragraphs (a) and (b) of section 23(6). Section 23(6) does not impose an obligation on a local authority to provide accommodation for the parent or other persons. It is concerned with placement, not housing. Section 23 does not assist the claimants. On this I agree with the decision of the Court of Appeal in R (on the application of G) v Barnet London Borough Council [2001] EWCA Civ 540, (2001) 4 CCLR 128.

    39.  The setting in which the problem now under consideration arises is this. In the ordinary course the essential accommodation needs of most families with children are met, where necessary, under the housing legislation. Part VI of the Housing Act 1996 makes provision regarding the allocation of housing accommodation. Every local housing authority must have a scheme for determining priorities in the allocation of housing accommodation. The scheme must give reasonable preference to, among others, people living in unsatisfactory housing conditions and families with dependent children. Housing accommodation must be allocated only in accordance with the housing authority's published scheme (section 167).

    40.  Part VII of the Housing Act 1996 makes provision for cases of homelessness. A local housing authority must make inquiries into cases of homelessness or threatened homelessness (section 184). The authority must provide accommodation on an interim basis (section 188) and thereafter (section 193) if the applicant is homeless, eligible for assistance and has a priority need. A person living with dependent children has a priority need (section 189).

    41.  Certain classes of persons from abroad are not eligible for this assistance. They fall into two broad categories (there are exceptions). First are persons who are subject to immigration control under the Asylum and Immigration Act 1996. The second category consists of persons not yet habitually resident in the Common Travel Area: section 185, and the Homelessness (England) Regulations 2000 (SI 2000/701).

    42.  A further class of persons is also excluded from the scope of the homelessness provisions. This comprises persons who have become homeless intentionally. Where a person is homeless, eligible for assistance and has a priority need but has become homeless intentionally, the authority's obligation is limited to providing accommodation for a period which will give the applicant a reasonable opportunity to secure accommodation for his occupation, together with advice and appropriate assistance (section 190). A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation available for him and which it would have been reasonable for him to continue to occupy (section 191).

    43.  In the ordinary way it is in cases of ineligibility and intentional homelessness that parents with children have recourse to their local social services authority for assistance with accommodation under the Children Act 1989. Housing assistance not being forthcoming from their local housing authority under the housing legislation, parents turn to another potential source of assistance. Sometimes the local social services authority will be the same local authority as the local housing authority, sometimes not. Typically, in England, outside the metropolitan areas and leaving aside unitary authorities, the county council is the local social services authority and the district council is the local housing authority. Elsewhere, as in the cases involved in the three appeals before the House, a local authority may be both local social services authority and local housing authority. This should not, however, be allowed to obscure the fact that in acting in one or other of these capacities a local authority is exercising different statutory functions. The manner in which the functions of a local housing authority and those of a local social services authority are discharged does not differ according to whether two local authorities are involved or only one.

    44.  One further point should be noted. Parliament has now specifically addressed the problem arising in cases where a child normally lives with a parent who is ineligible for housing assistance or has become homeless intentionally. Section 12 of the Homelessness Act 2002 has inserted an additional section, section 213A, into the Housing Act 1996 with effect from October 2002. The effect of section 213A is that in these cases the local housing authority must ensure the local social services authority is made aware of the case, if the applicant agrees. Then, if the social services authority requests the housing authority to provide advice and assistance in exercise of its functions under Part III of the Children Act 1989, the housing authority is obliged to provide the social services authority 'with such advice and assistance as is reasonable in the circumstances'. In the case of a unitary authority the housing department must provide the social services department with such advice and assistance as the social services department may reasonably request.

    45.  I can now identify the difficulty. As already noted, a local authority is under a duty to provide accommodation for a homeless child under section 20 of the Children Act 1989. Children are vulnerable, and the Children Act 1989 makes special provision for this vulnerable sector of the community. Frequently the cost of providing accommodation for parent and child together, in the form of bed and breakfast accommodation or by way of a deposit in respect of rented private accommodation, is less than the cost of accommodating the child alone with a foster parent or in a residential institution. This suggests that, at least in such cases, the obviously sensible and desirable course is for the local authority to provide for the accommodation of both parent and child. In the usual way this course will be in the best interests of the child, and the local authority has power to take this course under section 17(3).

    46.  But there is a snag. Taking this course with some homeless families would have a knock-on effect. Like cases must be treated alike. If this course were followed the inevitable effect, it is said, would be that social services authorities would find themselves inundated with family accommodation applications. They would find themselves having to provide for the housing needs of many or most families with dependent children where the parents are intentionally homeless or ineligible for housing assistance under the homelessness provisions of Part VII of the Housing Act 1996. W's case and G's case are examples. In W's case the mother was found to be homeless intentionally. She had been evicted for persistent non-payment of rent. In G's case the mother was newly arrived from Holland.

    47.  Providing accommodation for these families, it is said, is not the function of a local social services authority. Nor does a local social services authority have the means to discharge this function, akin to that of a surrogate housing authority. The function of a social services authority under the Children Act 1989 is to provide accommodation for homeless children, not homeless families. Parliament has devised a detailed and carefully balanced structure regulating the supply of local authority housing. That scheme is administered by local housing authorities. Parliament has regulated when a parent with dependent children is entitled to housing accommodation. Families with dependent children should not be allowed to jump the housing queue. The statutory housing provisions cannot be circumvented by making an application in the name of a dependent child: R v Oldham Metropolitan Borough Council, Ex p Garlick [1993] AC 509. Nor should families be permitted to circumvent these provisions by relying on the duties of local social services authorities to meet the accommodation needs of children.

    Lambeth's policy

    48.  Latterly some social services authorities, it seems, have sought to contain the scale of the financial problem associated with meeting the accommodation needs of homeless children by making accommodation available for children in these cases but not their parents. This approach was prompted, or confirmed, by the High Court decision in A's case in May 2001 that section 17 of the Children Act 1989 imposes no duty on a local authority in respect of an individual child.

    49.  In September 2001 the social services department of Lambeth council, whose territory includes many deprived inner city areas and whose resources are under severe strain, adopted a general policy along these lines. The council would accommodate homeless children, as required by section 20 of the Children Act 1989. But it would not provide accommodation under section 17 for families applying to it on the ground of homelessness. Providing accommodation for the families of homeless children would divert funds and manpower resources away from other social services which should have priority. Lambeth considered that child protection, and the need to ensure children in its care are appropriately looked after, were the core activities to which it should give priority. A helpful description of the financial pressures besetting Lambeth council appears as appendix 3 to the judgment of Brooke LJ in W's case: [2002] 2 All ER 901, 933.

    50.  The reason why this new policy contains the scale of the problem is that, not surprisingly, faced with the prospect of being separated from their children, most mothers make further efforts at self-help and, in a high percentage of cases, their efforts are successful. The experience of Lambeth council is that most potentially homeless families find accommodation for themselves by one means or another. Indeed in W's case Lambeth's evidence was that since adopting its new policy it had not been asked to accommodate a child alone pursuant to its duty under section 20 of the Children Act 1989. Thus, by refusing to accommodate the parent, the overall cost to the social services authority is considerably less than it would otherwise be. The authority ends up not having to accommodate either child or parent. A procedure along these lines was countenanced by the Court of Appeal in G's case: (2001) 4 CCLR 128, 139, paras 24, 25.

    51.  The propriety of this general policy is now being challenged before your Lordships' House. The claimants contend it is not lawful for a local authority to offer to accommodate a child alone in the hope or expectation that the parent will refuse to be separated from her child. In G's case the child was 14 months old at the time of the initial decision. The mother adamantly refused to return to the Netherlands. The council decided to end the arrangements whereby G lived with her young child in bed and breakfast accommodation. The council offered instead to accommodate the child with foster parents, even though this would have been more expensive than the existing arrangements.

    52.  This challenge is sought to be buttressed by reference to the obligation, inherent in article 8(1) of the European Convention on Human Rights, to take positive steps to secure or protect an effective respect for family life. Mutual enjoyment by parent and child of each other's company is a fundamental element of family life: K and T v Finland (2001) 36 EHRR 255, 287, para 151. The state must act in a manner calculated to allow those concerned to lead a normal family life: Z and E v Austria (1986) 49 DR 67, a decision of the European Commission on Human Rights. If in the particular case it is no more expensive to accommodate parent and child together, and if it is in the child's best interests to live with his parent, this positive duty requires that the accommodation provided for the child should be for the child together with his parent. Choosing to accommodate the child only in such a case would, it was submitted, be a decision which does not respect the family life of the child or his parent. Such a decision by a local authority would be unlawful: section 6(1) of the Human Rights Act 1998.

    53.  At the heart of this issue lies the insoluble practical problem of separating those whose needs are genuine from those who are abusing the special protection afforded to children by the Children Act 1989. But the solution adopted by Lambeth council and others does not solve this problem. It does not distinguish the genuine case from the non-genuine. The solution which has been adopted is of universal, or near universal, application. It relies for its success on an expressed intention to offer to accommodate the child alone in virtually all cases. Moreover, this is not just a question of stated intention. Lambeth's policy will not work unless the council thereafter adheres to its stated intentions.

    54.  In considering this issue each case must always be considered on its own merits. The facts in every case differ. But without detracting from this overriding principle, a recognisable distinction is discernible here between two broad types of cases: (1) cases where a child is old enough to understand what is happening and is not likely to be significantly upset by being accommodated away from his parent, and (2) cases where this is not so. In the former type of cases the policy adopted by Lambeth council is, in principle, reasonable. The social services authority is not under a duty to accommodate the parent of a child in need although it has power to do so. In this type of case, where the only need of the child is for short term accommodation, accommodating the child alone will safeguard the child's immediate welfare. It would be preferable if accommodation were provided for the parent as well. But this would have the seriously adverse financial repercussions mentioned above. This is a factor the council may properly take into account.

    55.  Matters stand differently where the child is not old enough to understand what is going on or, if he is, he would be likely to be significantly upset at being separated from his parent. Providing accommodation for the child alone in this type of case may satisfy the authority's duty under section 20 of the Children Act 1989. But in this type of case the child's immediate need is for accommodation with his parent. This is a basic need. It is difficult to see how the local authority can be said to fulfil its duty under section 17(1) of the Children Act 1989 by accommodating the child alone in such circumstances. It cannot be reasonable in this type of case to give greater weight to the wider financial repercussions than to the adverse consequences to the individual child in the particular case. Parliament cannot have intended that the latitude afforded to local authorities by section 17(1) should embrace such a highly unsatisfactory result regarding the accommodation needs of a child in need.

    56.  A social services authority is of course not a housing authority. But section 213A of the Housing Act, mentioned above, goes some way towards providing an answer on this. Where necessary a social services authority should now exercise its power under section 213A to request assistance from the local housing authority. If assistance is not forthcoming the court will scrutinise the housing authority's reasons with rigour in a case where the consequence is that a homeless dependent child, not old enough to understand what is going on or likely to be significantly upset by being separated from his parent, would be accommodated separately from his parent.

    57.  If this is the correct approach, as I believe it is, it must follow that in this type of case a local authority should not, expressly or tacitly, threaten a parent that the most it will do is to accommodate the child alone. The authority should not express an intention it cannot properly implement. If a local authority may not properly accommodate a child alone in this type of case where the parent and child could be accommodated together without significant additional cost, then by telling a parent that, if necessary, it will consider taking this course the authority would be putting improper pressure on the parent.

    58.  For these reasons I consider Lambeth's existing general policy needs adjustment. In its present form Lambeth's policy goes outside the latitude afforded to a local authority by section 17(1) of the Children Act 1989. In so far as the London Borough of Barnet has adopted a similar policy, its policy likewise needs adjustment. So do similar policies of all other social services authorities and departments which are currently proceeding on a similar basis. But no relief is now called for in W's case or G's case. So I would dismiss these two appeals.

    A's case

    59.  In A's case the problem is different. It is not a case of homelessness. As will be recalled, in A's case the two children suffering from autism are accommodated with their mother and brother. In this case the problem relates to the quality of the accommodation provided for the family. The core needs of the children are for a flat with four bedrooms away from the road and with a secure outside garden or play area. At first instance Scott Baker J rightly described this as 'a tall order for any council to meet in the light of the limited physical and financial resources and the needs of other families'. This is especially so for an inner city authority such as Lambeth.

    60.  In rejecting A's claim both courts below proceeded on the basis that no enforceable duty exists under section 17. In the Court of Appeal Sir Philip Otton described this as a distressing case. He expressed the hope that the housing authority would reconsider it on its merits as soon as possible. He shared Laws LJ's surprise, even unease, at the category in which the family were placed: this 'desperate and devoted mother needs improved accommodation as well as services for her two autistic children': (2001) 4 CCLR 486, 507-508, para 47. That was in November 2001. The needs of the children and their mother have not lessened with the passage of time.

    61.  The present position, therefore, is that neither court below considered whether, if section 17(1) of the Children Act 1989 gives rise to an enforceable duty of the character I have described, Lambeth council is in breach of its duty in this case. Your Lordships heard no submissions on this point. The present position may be summarised as follows. The children do not need short-term accommodation. The family need permanent re-housing, because of the special needs of the two autistic children. The social services department is subject to particular statutory obligations regarding the needs of disabled children but it does not possess a stock of housing. The housing department, on the other hand, has a stock of housing but is not subject to a like statutory obligation in respect of the needs of disabled children.

    62.  Disabled children, with their special housing needs, cannot be permitted to fall between these two stools. When enacting the Children Act 1989 Parliament envisaged that a local authority might need to seek help from other authorities, such as a local housing authority, in discharging its functions under Part III of the Act. Section 27 of the Children Act 1989 provides that the requested authority must comply with the request if it is compatible with its own duties and does not 'unduly prejudice' the discharge of its own functions. The relevant authorities are obliged to cooperate with each other. So in discharging its duty under section 17(1) Lambeth council's social services department, as the local social services authority, may request help from the housing department, as the local housing authority, in re-housing A and her family. The housing department must comply with the request if it is compatible with its own duties and does not unduly prejudice the discharge of any of its functions. I emphasise the word 'unduly'. If such a request is made the housing department, much pressed as it undoubtedly is, must nonetheless take note that the department responsible for safeguarding the welfare of children has decided that these two children need better housing. The housing department will wish to consider the practicability of accelerating the provision of accommodation which at least in some respects is more suitable for the acute needs of these two disabled children.

continue previous