R (G) v Barnet London Borough Council; R (W) v Lambeth London Borough Council; R (A) v Same
| Jurisdiction | UK Non-devolved |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD MILLETT,LORD SCOTT OF FOSCOTE |
| Judgment Date | 23 October 2003 |
| Neutral Citation | [2003] UKHL 57 |
| Date | 23 October 2003 |
| Court | House of Lords |
ON
[2003] UKHL 57
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hope of Craighead
Lord Millett
Lord Scott of Foscote
HOUSE OF LORDS
My Lords,
These three appeals concern the responsibilities of local authorities for the accommodation of children who are in need. The first and principal legal issue relates to the nature and extent of the duty imposed on local authorities by section 17 of the Children Act 1989. The claimants' case is that section 17(1) requires a local authority to assess the needs of a child who is in need and to meet his needs when they have been assessed. The defendant local authorities refute both limbs of this claim. A second issue is whether a local authority may insist on providing accommodation for a child alone, as distinct from a child and his mother, when a child is in need of accommodation and it would cost no more to provide accommodation for both of them.
In two of the cases the accommodation problems of the claimants have been resolved since the proceedings started. In the third case, involving two disabled children, there is an issue between the parties on the quality of the accommodation currently provided for the children and their family. I must first outline the facts and history of the three cases. In each case the claimant was a mother as a single parent. The three claimants are G, A and W.
The three cases
The first case, in chronological sequence is G's case: R (on the application of G) v London Borough of Barnet. G is a person from abroad who, until recently, was not eligible for housing assistance. She is a Dutch national of Somali origin. She has a son, born in May 1999. She entered this country on a Dutch passport. She claimed she left the Netherlands because of social ostracism encountered there in the Somali community on account of her child's illegitimacy, and that she came to this country to look for the child's father. An application for income support, and an application to the London Borough of Barnet for assistance with housing, were refused because G did not satisfy the habitual residence test. She then sought assistance from Barnet council as the local social services authority. The council assessed the child's needs as best served by the return of both mother and child to Holland where they were entitled at once to accommodation and other benefits. The council did not accept the mother's account of her reasons for coming to London. By a decision letter of 9 October 2000 the council told her that her weekly payments for accommodation and subsistence would stop in a week's time.
G applied for judicial review of this decision. It was common ground she was suitable to look after her boy, and that it was not in the boy's best interests to be removed from her care. It was also common ground that if, as happened, the mother refused to return to the Netherlands, the council intended to place the child with foster parents, and to provide no accommodation for the mother. In the event interim relief was granted in the judicial review proceedings. On 18 January 2001 Hooper J quashed the decision of 9 October 2000: see [2000] EWHC Admin 5, (2001) 4 CCLR 33. The child was in need, and it was in the best interests of the child to live with his mother. Given the duties imposed on the local authority by section 17(1) of the Children Act 1989, and the powers granted to it by section 23, the local authority has no alternative' but to place the child with his mother assuming it is reasonably practicable to do so. This was so even though the mother was, in the view of the local authority, acting unreasonably: see para 18.
The council appealed. On 11 April 2001 the Court of Appeal, comprising Ward, May and Rix LJJ, allowed the appeal and dismissed the judicial review application: [2001] EWCA Civ 540, (2001) 4 CCLR 128. Ward LJ said the duty imposed by section 17(1) was met by providing financial assistance for the return of the mother and child to Holland. The local authority did not act unlawfully in refusing to provide assistance in cash or in kind to assist in the provision of accommodation for the mother and her child. Section 17(3) and (6) imposed no such duty on the local authority. Section 20 imposed a duty to provide accommodation for the child, not for the parent and the child.
The second appeal is A's case: R (on the application of A) v London Borough of Lambeth. This concerns a family who have been housed but whose accommodation is not suitable for the children's needs. A is the mother of three children. Unhappily two of the children, aged 9 and 7, are autistic. They have severe learning difficulties and require constant supervision. The family's accommodation is a ground floor two bedroom local authority flat, rented from the London Borough of Lambeth. The flat has no garden or outside play area. The two disabled children are prone to run out of the front door and climb through the windows. This is dangerous because the flat is very close to the road. The accommodation poses severe disadvantages to the children's health and wellbeing. Core assessments of the needs of the children under the Children Act 1989 were to the effect that the family need to be re-housed away from the road, to have a safe outside play area and to have four bedrooms
A challenge by the mother to the decision of the council as housing authority was abandoned. The mother now seeks, against the council as local social services authority, a mandatory order compelling the council to find and provide suitable accommodation in line with the children's assessed needs. Both the judge at first instance, Scott Baker J, and the Court of Appeal, comprising Chadwick and Laws LJJ and Sir Philip Otton, held the court has no power to intervene even though, even in the words of Scott Baker J, the family have been 'less than satisfactorily treated' by Lambeth council: [2001] EWCA Civ 1624, (2001) 4 CCLR 486.
The third case is W's case: R (on the application of W) v London Borough of Lambeth. W had become homeless intentionally within the meaning of that expression in the homelessness legislation. She has two children, aged 16 and 7. She sought assistance for accommodation from the London Borough of Lambeth as local social services authority. This was refused. Maurice Kay J dismissed an application for judicial review of the council's decision. The decision of the Court of Appeal in A's case obliged him to do so. By a further assessment, dated 9 April 2002, the council decided it should explore placing the children with extended family members as a short term measure while the mother sought alternative accommodation. Should the need arise provision could be made for the children alone under section 20 of the Children Act 1989.
On appeal the Court of Appeal, comprising Brooke, Laws and Keene LJJ, dismissed an appeal in respect of the council's decision of 9 April 2002: see [2002] EWCA Civ 613, [2002] 2 All ER 901. The court considered there were not sufficient grounds for interfering with the council's decision. Section 17 imposes a 'target' duty on the council, but in relation to individual children the council only has a power. The council had given intelligible and adequate reasons why it was not willing to exercise its power in this case, given all the other pressures on its resources. Where all else failed the local authority has power to help under section 17, but it is entitled, if it sees fit, to reserve this power for extreme cases which the instant case had not yet become: [2002] 2 All ER 901, 926-927, para 83.
Allocation of resources
Behind the legal questions arising in these appeals is the seemingly intractable problem of local authorities' lack of resources. Local authorities discharge a wide range of functions, from education to housing, upkeep of roads to disposal of waste. All these activities call for money, of which there is never enough to go round. Often there is also a shortage, sometimes acute, of other resources such as trained staff.
The financial resources of local authorities are finite. The scope for local authorities to increase the amount of their revenue is strictly limited. So, year by year, they must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more money they allocate for one purpose the less they have to spend on another. In principle, this decision on priorities is entrusted to the local authorities themselves. In respect of decisions such as these council members are accountable to the local electorate.
The ability of a local authority to decide how its limited resources are best spent in its area is displaced when the authority is discharging a statutory duty as distinct from exercising a power. A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose. A power need not be exercised, but a duty must be discharged. That is the nature of a duty. That is the underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice.
The extent to which a duty precludes a local authority from ordering its expenditure priorities for itself varies from one duty to another. The governing consideration is the proper interpretation of the statute in question. But identifying...
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