R O (and the child's mother and litigation friend Ms PO) v London Borough of Lambeth
| Jurisdiction | England & Wales |
| Judge | Helen Mountfield |
| Judgment Date | 28 April 2016 |
| Neutral Citation | [2016] EWHC 937 (Admin) |
| Docket Number | Case No: CO/5480/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 April 2016 |
[2016] EWHC 937 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Helen Mountfield QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/5480/2015
Mr Matthew Lewin (instructed by Osbornes Solicitors) for the Claimant
Ms Sian Davies (instructed by Lambeth Legal Services) for the Defendant
Hearing dates: 9 March 2016
Helen Mountfield QC:
Introduction
This is a claim for judicial review of a decision of the Defendant local authority (Lambeth) dated 14 August 2015 to refuse to provide accommodation and support to the Claimant, O, and her mother PO (who is her litigation friend) under the provisions of section 17 Children Act 1989. In order to protect the Claimant's identity, an order has been made that no information should be disclosed which identifies her, and I have referred to her as "O" or the Claimant, to her mother as PO, and to other people involved in the case by initials or otherwise by incomplete or pseudonymous names in the course of this judgment.
The Claimant's case is that it was irrational for the assessing social worker for Lambeth to conclude that she and her mother were neither homeless nor destitute, and consequently that the assessment under s17 was unlawful.
The Claimant summarises the legal position in this way. She accepts that Lambeth has no power to offer accommodation or financial support to O or PO unless the Defendant concludes that the Claimant's mother is unable to support the Claimant financially (i.e. that they are destitute) and/or that the family is homeless. The Claimant accepts that the assessment of that question is primarily one for the judgement of the social workers in the local authority area. However, the judgements in this case are tainted by failures of logic or enquiry and so fall to be quashed.
Permission was granted by HH Judge McKenna QC sitting as a deputy judge of the High Court on 8 January 2016. Interim relief requiring Lambeth to continue to accommodate the Claimant and her mother until the hearing was concluded was ordered by Mr Justice Leggatt on 10 November 2015.
The legal framework
The legal framework is largely common ground. By section 17(1) Children Act 1989, it is the general duty of every local authority:
i) to safeguard and promote the welfare of children within their area who are in need; and
ii) so far as is consistent with that duty to promote the upbringing of such children by their families.
That duty does not impose an obligation upon a local authority to provide anything particular for any child. However, by virtue of section 17(3) Children Act 1989, a local authority has a wide discretion to provide a service for a particular child in need or any member of his family "if it is provided with a view to safeguarding or promoting the child's welfare". Such services may include accommodation or the giving of assistance in kind or in cash: section 17(6) Children Act 1989.
A child whose parents are homeless and/or unable to support her is a child in need for the purposes of section 17 Children Act 1989, as explained by the court in R(Giwa) v London Borough of Lewisham [2015] EWHC 1934 (Admin) para [11].
Many applications for support under section 17 Children Act 1989 arise in cases where the reason a child's parent is homeless or unable to support her child because she herself is a person with no recourse to public funds (known as "NRPF") as a result of her immigration status.
That situation arises because schedule 3 of the Nationality, Immigration and Asylum Act 2002 provides that persons specified in paragraph 7 of that Schedule are not eligible for a range of benefits, including support or assistance under section 17 Children Act 1989 (Schedule 3 para 1(1)).
In this case, the Claimant's mother PO is a person specified in paragraph 7 of the Schedule because she is here in breach of the immigration laws and is not an asylum seeker.
That is not the end of the matter though, because paragraph 2(1)(b) of the Schedule to the NIAA 2002 provides that the exclusion in paragraph 1 does not prevent the provision of support or assistance to a child. Further, paragraph 3 of the Schedule provides that the paragraph 1 exclusion does not prevent the exercise of a power or performance of a duty if and to the extent that its purpose or performance is necessary for the purpose of avoiding a breach of the person's Convention rights.
In short, a local authority has power to provide services under section 17 to a child even if the child lacks immigration status; but it can only provide services to the child and her parent together (i.e. as a family) if and to the extent that failure to do so would breach the Convention rights of either the child or her mother: see R(MN) v London Borough of Hackney [2013] EWHC 1205 (Admin) at [19].
If a child, especially a young child, is here with a parent, and the family unit cannot be sent anywhere else, it will often constitute a breach of the child's rights to respect for her private and family life not to accommodate her with her family. If the local authority must assume that the family cannot be removed from the jurisdiction consistently with its human rights (as to which see paragraph 39 below), then the effect of section 17 Children Act 1989 and duties not to breach Convention rights by reference to section 6 Human Rights Act 1998, read together with paragraphs 2 and 3 of schedule 3 of the Nationality Immigration and Asylum Act 2002, is consequently often to render the section 17 power to accommodate – in effect – a duty imposed on the local authority to act as provider of last resort in cases where a child and his or her family would otherwise be homeless or destitute.
That means that the threshold duty of enquiring whether the child of the family is a child 'in need' acquires a particular significance. The determination that the child is in need triggers powers which will come close to duties to make basic provision in cases where no other state support is available, and where therefore, in the absence of any private support, the consequence is destitution.
The duty of a local authority pursuant to paragraph 1 of schedule 2 to the Children Act 1989 is to take 'reasonable steps to identify' whether a child is in need. What those steps are is a matter for the local authority, subject to complying with public law requirements. Statutory guidance as to child in need assessments is set out in "Working Together to Safeguard Children", dated March 2015, and departure from that guidance as to assessment without reasonable explanation would be a public law failing. However, that is not the suggestion in this case.
The duty to make reasonable enquiry is a duty to make those enquires which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances.
Whether or not a child is 'in need' for these purposes is a question for the judgement and discretion of the local authority, and appropriate respect should be given to the judgements of social workers, who have a difficult job. In the current climate, they are making difficult decisions in financially straitened circumstances, against a background of ever greater competing demands on their ever diminishing financial resources. So where reports set out social workers' conclusions on questions of judgement of this kind, they should be construed in a practical way, with the aim of seeking to discover their true meaning (see per Lord Dyson in McDonald v Royal Borough of Kensington & Chelsea [2011] UKSC 33 at [53]). The way they articulate those judgements should be judged as those of social care experts, and not of lawyers. Nonetheless, the decisions social workers make in such cases are of huge importance to the lives of the vulnerable children with whose interests they are concerned. So it behoves courts to satisfy themselves that there has been sufficiently diligent enquiry before those conclusions are reached, and that if they are based on rejection of the credibility of an applicant, some basis other than 'feel' has been articulated for why that is so.
The converse is also true. An applicant parent who is seeking to persuade a local authority that they and their child are destitute or homeless, so as to trigger the local authority's duties of consideration under section 17 Children Act 1989 is seeking a publicly funded benefit, to which they would not otherwise be entitled, which diverts those scarce funds from other Claimants. Even the process of assessment is a call on scarce public funds. It therefore behoves such an applicant to give as much information as possible to assist the decision-maker in forming a conclusion on whether or not they are destitute.
If the evidence is that a family has been in this country, without recourse to public funds and without destitution for a number of years, reliant on either work or the goodwill and kindness of friends and family, then the local authority is entitled and indeed rationally ought to enquire why and to what extent those other sources of support have suddenly dried up. In order to make those enquiries, the local authority needs information. If the applicant for assistance does not provide adequate contact details for family and friends who have provided assistance in the past, or cannot provide a satisfactory explanation as to why the sources of support which...
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