Attorney General Ex Rel Tilley v London Borough of Wandsworth

Lord Justice Templeman will deliver the first judgment.

This is an appeal from a decision of His Honour Judge Mervyn Davies sitting as an additional judge of the Chancery Division and delivered on the 17th March 1980. The learned judge declared ultra vires a resolution which was passed by the Social Services Sub-Committee of the council of the London Borough of Wandsworth on the 4th July 1979 and confirmed by the full council on the 24th July 1979.

The resolution was: "That in those cases where intention' al homelessness had been determined by the Council in respect of a family with young children and, subsequently, an approach is made to the Social Services Department, it be decided that assistance with alternative housing be not provided under the provisions of the Children and Young Persons Act 1963 although consideration be given to the reception into care of the children should their circumstances so warrant it and that the whole matter be reviewed by Committee in three months time".

The learned judge decided that it is not open to the council to lay down that certain discretions and duties which are available and are imposed upon the council by the Children and Young Persons Act 1963 shall not be carried out.

The Housing (Homeless Persons) Act 1977 introduces the notion of intentional homelessness. Under that Act localauthorities are under a duty to provide accommodation for families with children and their duties vary when the homelessness of the parents is intentional or unintentional. In the case of unintentional homelessness, a local authority is under a duty to provide permanent accommodation. In the case of intentional homelessness—and that could occur, for example, if a parent rashly gave up property which he owned or of which he had a lease, or behaved so badly that he was evicted as being a nuisance or in breach of covenant—then the duty of the council is much more limited. The council need not provide permanent accommodation. It must give the parent advice and assistance to find somewhere else for himself, and it has to give him temporary accommodation while he can look round and find some place for himself and his family.

The Children and Young Persons Act 1963 deals with individual children. Section 1 (1) of the Act says: "It shall be the duty of every local authority to make available such advice guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under the Children Act 1948…and any provisions made by a local authority under this sub-section may, if the local authority think fit, include provision for giving assistance in kind, or, in exceptional circumstances, in cash".

Under the Children Act 1948 a child may be taken into care where it appears to a local authority, inter alia, that his parents, through incapacity or any other circumstances, are prevented from providing for his proper accommodation, maintenance and upbringing. So in the case of a child, if his parents cannot provide him with proper accommodation, maintenance and upbringing the local authority can take that child into care; in other words, remove him from his parents and put him with foster parents or in a home. The Children and Young Persons Act 1963 imposes on the council a duty diminishing the need to take a child into care, in other words a duty to see, if possible that the child can stay with his parents or, perhaps, with some other relations, by such advice, guidance and assistance as the council may think appropriate. The resolution which is now in question says that...