R (Ali) v Birmingham City Council and another; R (Mohammed) v Birmingham City Council and another; R (Mohammed) v Birmingham City Council and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MOSES |
| Judgment Date | 30 May 2002 |
| Neutral Citation | [2002] EWHC 1511 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 May 2002 |
| Docket Number | CO/3858/2001 (THE ADMINISTRATIVE COURT) CO/5141/2001 |
[2002] EWHC 1511 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Moses
CO/3858/2001
CO/3859/2001
(THE ADMINISTRATIVE COURT)
CO/5141/2001
MR C VAJDA QC and MR G FACENNA (instructed by RASHID & CO SOLICITORS, BIRMINGHAM B6 6SR) appeared on behalf of the Claimant.
MR C BAKER and MISS A MEACHER (instructed by BIRMINGHAM CITY COUNCIL LEGAL DEPARTMENT) appeared on behalf of the Defendant.
MR P SALES (HEARING ONLY) AND MR D STILITZ (instructed by THE TREASURY SOLICITOR) appeared on behalf of the Interested Party.
These are three joined applications. Each claimant is a Dutch national and the mother of young children. I should also mention that they are of Somali origin, but I wish to emphasise at the outset that I do so only because of an issue raised by them as to discrimination by reason of their racial origin.
They arrived in Birmingham in July 2001 from the Netherlands. They asserted (although this was disputed by Birmingham City Council, "the Council") that they were forced to leave because of domestic violence. None satisfied the test of habitual residence, so none was entitled to income support or other benefits. They were, accordingly, dependant on the Council for housing and subsistence.
Following a decision of the Court of Appeal, G v Barnet [2001] EWCA Civ 540 and another, at that stage in the High Court, A v Lambeth [2001] EWHC Admin 376, the Council introduced a new policy with effect from 11th July 2001. The essential feature of that policy was that an assessment would be made to determine whether the children of the families were in need pursuant to the Children Act 1989 ("the 1989 Act"). If the assessment indicated that those children were in need, the Council would offer to meet the cost of returning them to the Netherlands if support and accommodation were available there. In the event that the offer of funding was not accepted the Council would offer to accommodate the children only, but as a policy of last resort.
The needs of the children were assessed, although there is some dispute as to the extent to which the needs of the mothers were incorporated into that assessment. It was not disputed that the families as a whole were in need, but the Council sought to meet that need by offering to pay for their return to the Netherlands. There was a reference, in the letters sent to the families, to the possibility of accommodation being offered to the children alone. The offers were not accepted. The families are no longer in receipt of any benefit but are, in fact, now eligible and in receipt of income support, but all parties have agreed that the issues in these applications require resolution.
The claimants raise issues as to the powers and duties of the Council under section 21 of the National Assistance Act 1948 ("the 1948 Act"), section 47 of the National Health Service and Community Care Act 1990 ("the 1990 Act") and sections 17 and 20 of the Children Act 1989 ("the 1989 Act"), as well as under the Human Rights Act 1998.
Legislative Provisions
By section 21 of the 1948 Act, which is in Part III of that Act, it is provided:
"21 Duty of local authorities to provide accommodation
(1) [Subject to and in accordance with the provision of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing]—
(a) residential accommodation for persons [aged eighteen or over] who by reason of age, [illness, disability] or any other circumstances are in need of care and attention which is not otherwise available to them; [and
(aa) residential accommodation for expectant and nursing mothers who are in need of care and attention which is not otherwise available to them.]
…
(2) In [making any such arrangements] a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection."
It should be noted that the duty to provide accommodation only arises where the Secretary of State directs local authorities to make arrangements, whereas there is a power conferred on the local authorities where the Secretary of State approves the making of directions (see section 29(1)). Directions have been made pursuant to section 21(1) of the 1948 Act by Department of Health Circular LAC (93)10 Appendix 1. This provides:
"…Residential accommodation for persons in need of care and attention
2.-(1) The Secretary of State hereby—
(a) approves the making by local authorities of arrangements under section 21(1)(a) of the Act in relation to persons with no settled residence and, to such extent as the authority may consider desirable, in relation to persons who are ordinarily resident in the area of another local authority, with the consent of that other local authority; and
(b) directs local authorities to make arrangements under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,
to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention not otherwise available to them.
(2) Without prejudice to the generality of sub-paragraph (1), the Secretary of State hereby directs local authorities to make arrangements under section 21(1)(a) of the Act to provide temporary accommodation for persons who are in urgent need thereof in circumstances where the need for that accommodation could not reasonably have been foreseen.
…
Residential accommodation for expectant and nursing mothers.
3. The Secretary of State hereby approves the making by local authorities of arrangements under section 21(1)(aa) of the Act (a) to provide residential accommodation (in particular mother and baby homes) for expectant and nursing mothers (of any age) who are in need of care and attention which is not otherwise available to them."
Section 47 of the 1990 Act provides:
"(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority—
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any services."
I should add that community care services include services that a local authority may provide under Part III of the 1948 Act pursuant to section 46(3) of the 1990 Act.
The Children Act 1989 took out of the provisions of the 1948 Act those who were under the age of 18 by inserting the words "aged 18 or over" into section 21 of the 1948 Act. Section 17 of the Children Act 1989 provides:
"(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs."
Section 20 of the 1989 Act provides:
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(2)…
(3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen…
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they considered that to do so would safeguard or promote the child's welfare.
(5)…
(6)…
(7) A local authority may not provide accommodation under this section for any child if any person who—
(a) has parental responsibility for him; and
(b) is willing and able to—
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
objects.
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section."
Thus it can be seen that the duties under section 20 are confined to circumstances in which the child is not living in a family unit (see Chadwick LJ paragraph 52 in A v Lambeth [2001] EWCA Civ 1624).
Chadwick LJ said (see paragraph 53) that the effect of the Children Act is to give recognition to the principle that the person primarily responsible for the provision of residential accommodation for a child is the parent with whom that child is able to live as part of a family unit.
I should recall, at the outset, that the decision of the Court of Appeal in A v Lambeth was that section 17 of the 1989 Act did not empower local authorities to provide accommodation, but that decision was held...
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