R (J) v Worcester County Council (Equality and Human Rights Commission intervening) [QBD]
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 06 December 2013 |
| Neutral Citation | [2013] EWHC 3845 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 December 2013 |
| Docket Number | Case No: CO/12222/2013 |
[2013] EWHC 3845 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Holman
Case No: CO/12222/2013
on the application of J (by his father and litigation friend W)
and
Mr Chris Buttler (instructed by Bindmans LLP) appeared on behalf of the claimant
Mr Andrew Sharland (instructed by Worcestershire County Council Legal Department) appeared on behalf of the defendants
Mr Jan Luba QC instructed by the Equality and Human Rights Commission appeared on behalf of the Interveners
The issue
Everyone loves a funfair. They are part of the tapestry of our national life. But there would be no funfairs without the travelling families who own the rides and amusements, erect them, man them, and then take them on to the next site or pitch. This case concerns one such family, but all counsel agree and submit that the issue which arises is one of widespread and general importance to all local authorities and many travelling or itinerant families.
So far as material, section 17(1) of the Children Act 1989 provides as follows:-
"It shall be the general duty of every local authority …
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) ….,
by providing a range and level of services appropriate to those children's needs."
The issue is: does the power of a local authority to provide services under that section to a child, whom they have assessed to be a child in need while he was actually present within their area, include a power to provide services when he is actually outside their area (but still within England and Wales) ?
The claimant says that it does. The Worcestershire County Council say that it does not. The issue and the case are of obvious importance to the children in many itinerant and traveller families. Many of them have the protected characteristic of race (which includes ethnic origins) for the purposes of the Equality Act 2010, being of Romany Gypsy or Irish Traveller origin. So the Equality and Human Rights Commission were granted permission to intervene and have made powerful submissions independent from, but supportive of, the case of the claimant.
I have been greatly assisted by, and am very grateful for, the cogent and sustained arguments of Mr Chris Buttler on behalf of the claimant; Mr Andrew Sharland on behalf of the defendants, Worcestershire County Council ("the local authority"); and Mr Jan Luba QC on behalf of the Equality and Human Rights Commission (the Commission).
The facts
The claimant is a three year old boy who is unlikely to know anything at all about this case. His litigation friend is his father, whom I will call the father so as to protect the anonymity and privacy of the claimant. The following summary of the factual context is based in part upon the father's witness statements and in part upon further detail which he gave informally in the courtroom. Although the local authority do not dispute or disbelieve what he so told me, they have had no opportunity to verify it. I stress, therefore, that what follows is a narrative but not any judicial findings of fact.
The father says that both he and his wife, who are both British, are of Romany Gypsy ethnicity and that each of them descends from a long line of travelling fairground families (or in the case of the wife, on her maternal side, circus families). He himself is a seventh generation fairground traveller. It is what he and his wife were brought up to and he has been travelling all his life (he is now aged 44). He says that the way of life forms a core part of their family's identity. The family have always travelled and lived in a caravan.
His own father has now retired and does now live in a dwelling at a fixed address in Malvern, Worcestershire, which is now the family's base. It is here that the father stores his amusements and equipment during the winter break, and here that he and his wife and children normally reside during the winter break, still living in their caravan but parking it on his father's land.
The father owns and runs a helter skelter and a bungee trampoline. Throughout the season he travels with his family to fairs in many parts of England and Wales and also the Channel Islands of Jersey and Guernsey. (It is not suggested that any power or duty under section 17 extends to periods when the claimant is in the Channel Islands). They go to ancient "chartered fairs", first established under Royal Charter, and to more recent but still long established fairs such as Ringwood Carnival in Hampshire, and to other more ad hoc events. The father has exhibited a specimen itinerary for a typical year, now at bundle page B 8. This shows them passing through the areas of sixteen different local authorities (plus the two Channel Islands). Sometimes they may go more than once to the area of a given local authority, including three visits to fairs in Worcestershire itself. The total area travelled extends to Derbyshire in the North, Greater London in the South East, Somerset in the South West, and parts of Wales. The duration in any one place or within the area of any one local authority may be as little as a few days or as long as two or sometimes three weeks. They live in their caravan and are frequently on the move. It must be a hard life and a hard working one, but it is a good life and an honourable one, which brings fun and joy to many people. And it is the life of the family's culture and choosing.
The parents have three children. Their daughter is aged 6 and is healthy. They have identical twin sons, now aged 3. One has certain medical problems but is not the subject of these proceedings. The other is the claimant. He has Down's syndrome and other complex medical problems, with developmental delay. Both he and his family need many forms of help. Some is medical. Some is educational. Some is forms of social care, within the province of the local authority. The local authority do not dispute at all, but readily agree, that he is a child "in need" for the purpose of section 17 and that he and his family are genuinely very needy because of his condition.
A local authority "Initial assessment" dated 6 July 2012, now at bundle pages F 10 —13 records "[The parents'] lives have been turned upside down since the birth of their boys … [The claimant] from his diagnosis meets the children with disabilities criteria …" Under the heading "Analysis, recommendations and decision" the social worker, Miss Chloe Wilson, considered "a variety of supports". These included the funding of respite breaks, to give the mother a rest and time to spend with the other children. Miss Wilson, who is clearly sympathetic and responsive to the needs of the claimant and his family, wrote "We did also discuss whether social care would give agreement for a set number of hours to travel with them so they could put him into a nursery if the family stayed in the same place for a few weeks …. If this provision could travel with them this would mean the family would receive a regular break from [the claimant's] demands." This is a reference to the local authority providing funding for a set number of hours which would actually be expended upon a nursery or similar respite care when they were travelling in a different area, for example in Hampshire. The final "Recommendations" of Miss Wilson at bundle page F 12 were "That social care consider funding a nursery placement of 5 hours per week and consideration is given to when [sic] these hours could 'travel' with him and the family."
The "Manager's Decision" is at bundle page F 13. The manager, Mrs Heidi Crampton, was also clearly sympathetic to the plight of the claimant and his family. She wrote that "[The parents] have indeed had a very traumatic year … I admire their commitment to their children and their continued advocacy on [the claimant's] behalf." But she continued: "… I can certainly understand the family's frustration in trying to access a continuation of services across local authority … borders, particularly as traveller culture is integral to the UK. I support the social work recommendation. However … I am not able to continue to agree funding for nursery once the family leaves the borders of Worcestershire County Council. I will agree to further exploring cross-border issues in relation to continuation of services to [the claimant], but am unable to commit at this time. I would therefore agree to fund 5 hours of nursery to [the claimant] whilst he is living within the boundaries of Worcestershire."
Pausing there, I have emphasised the words in bold in the above quotation. Mr Andrew Sharland on behalf of the local authority agreed that the words "I am not able to continue to agree" meant and mean that the Worcestershire County Council lack the power to agree.
It is worth noting that the "assessment start date" of that merely "initial" assessment was 3/7/2012 (see bundle page F 3) and the completion date was 9/7/2012 (see bundle page F 13), or 7 days inclusive. Sometimes, as they travel around, the family are not even within the area of a given local authority for more than 7 days.
The initial assessment was followed by a "Child/Young person in need plan" dated 24 July 2012 (now about three weeks after the "initial" assessment commenced.) This, too, was very sympathetic to the needs of the claimant and his family and recorded that "5 hours per week...
To continue reading
Request your trial
-
R (J) v Worcestershire County Council (Equality and Human Rights Commission intervening)
...THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM The High Court: Queen's Bench Division (Administrative Court) Mr Justice Holman [2013] EWHC 3845 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Before: THE MASTER OF THE ROLLS Lord Justice Floyd and Lady Justice King Case No: C1/......