R (W) v Lambeth London BC
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 03 May 2002 |
| Neutral Citation | [2002] EWCA Civ 613 |
| Docket Number | Case No: C/2002/0192 QBCAF |
| Court | Court of Appeal (Civil Division) |
| Date | 03 May 2002 |
[2002] EWCA Civ 613
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Lord Justice Laws and
Lord Justice Keene
Case No: C/2002/0192 QBCAF
John Howell QC & Stephen Knafler (instructed by Flack & Co) for the claimant
James Goudie QC & Charles Béar (instructed by Sternberg, Read, Taylor, Gill) for the defendant
SUMMARY
(This summary forms no part of the judgment)
In this case W, the mother of two children born in 1987 and 1998, was evicted from her home in February 2001. She was found by the local housing authority (Lambeth) to be intentionally homeless because there were substantial arrears of rent. She applied immediately to the local social services authority (also Lambeth) for assistance in securing private sector housing for herself and her two children as a family unit, but that authority declined to help her. She was able to find temporary accommodation with a niece between August 2001 and January 2002. She said that no other member of her family was then able to help her to house her family.
At her solicitors' request Lambeth social services carried out assessments of the needs of her two children in January 2001. The assessing officer found nothing exceptional in the case and said that the council's social services department did not provide accommodation for families (para 10). These proceedings were initiated to challenge the result of those assessments.
Maurice Kay J refused permission to apply for judicial review on the ground that he was bound by the majority decision of the Court of Appeal in R(A) v Lambeth LBC [2001] EWCA Civ 1624, (2001) 4 CCLR 486 (see paras 9–15). On 4th March 2002 Elias J held that a local authority had power pursuant to section 2 of the Local Government Act 2000 to assist a family in circumstances like these (see paras 19–20). On 8th March 2002 the Court of Appeal granted W permission to apply for judicial review and directed that the substantive application be heard by the Court of Appeal (para 1). On 9th April the council completed further assessments of the children's needs on the basis, which it disputed, that it did have power to provide assistance to the family. It again declined to make the provision sought (paras 78–81). It was these assessments which were under challenge at the hearing (para 1).
In the judgment of the court the Court of Appeal has now held that the majority decision of R(A) v Lambeth was made without full citation of all the relevant statutes and that it was therefore not obliged to follow it (para 73). It held that a local social services authority does possess the power under section 17 of the Children Act 1989 to help a family who have been found to be intentionally homeless (or are otherwise not entitled to help from their local housing authority) with assistance towards their housing needs as a family, and that the enactment of that Act did not alter the position which had previously existed under section 1 of the Child Care Act 1980, so far as the authority's powers are concerned. Whether the authority chooses to exercise its powers is a matter for its discretion, and the Court of Appeal declined to interfere with Lambeth's decision in the present case (paras 83–87).
The court expressed the hope that Lambeth's children and families division would reconsider the case of W and her family carefully in the light of its judgment (para 87).
| Part | Para |
| 1. Introduction | 1 |
| 2. The facts: a brief summary | 2 |
| 3. No relief for W under housing legislation | 4 |
| 4. The Children Act 1989 | 5 |
| 5. Three recent cases: G, A and J | 7 |
| 6. The arguments on the appeal | 21 |
| 7. The pressures besetting Lambeth | 23 |
| 8. Was A decided per incuriam? | 25 |
| 9. The principles to apply | 29 |
| 10. Mr Howell's arguments | 31 |
| 11. Two other rules of statutory interpretation | 35 |
| 12. The earlier caselaw: Tilley and Monaf | 45 |
| 13. The policy of Part III of the Children Act | 61 |
| 14. The Immigration & Asylum Act 1999 | 64 |
| 15. Section 17A of the Children Act | 70 |
| 16. A must have been decided differently on fuller statutory citation | 73 |
| 17. Section 2 of the Local Government Act 2000 | 74 |
| 18. Mr Bielby's second assessment | 76 |
| 19. Further evidence by W and her mother | 76 |
| 20. Our conclusion | 83 |
| Appendix 1 W and her history | 88 |
| Appendix 2 Help for homeless families from the social services department: competing views | 112 |
| Appendix 3 Lambeth; its financial difficulties and competing pressures | 124 |
This is the judgment of the court.
Introduction
This is an application by the claimant (whom we will call "W"), a homeless person, for judicial review of decisions by the London Borough of Lambeth ("the council") which have the effect of denying her any assistance in meeting the housing needs of her two children. On 24th January 2002 Maurice Kay J refused her permission to apply for judicial review, but on 8th March another division of this court granted such permission and directed that the substantive hearing of this application be heard by this court as soon as possible after 22nd March. Since that time the council has made another decision denying her help. It was common ground that it is the lawfulness of this later decision which is now in issue in this case.
The facts: a brief summary
W separated from her husband 18 months ago, and has the care of two children, who are now aged 15 and 4. She is unemployed and dependent on income support. On 19th February 2001 she was evicted from her home and applied to the council for housing assistance as a homeless person. The council, in its capacity as the local housing authority, provided the family with temporary accommodation pending its decision on this application. On 8th August, however, it notified her, following a review of an earlier decision to the same effect, that she had become intentionally homeless. She had been evicted due to rent arrears. Her present advisers maintain that there would have been grounds for challenging the council's decision in the county court if the necessary application had been made in time.
The family was evicted from their temporary accommodation on 29th August, but were able to find a home on a temporary basis with W's niece. She was living with her two children in a two-bedroomed flat, but this could not be a long-term solution as she was expecting her third child, and in due course she required W and her children to leave. W was unable to obtain private sector accommodation because a minimum payment of £2,000 was usually required, which was quite beyond her means. A further problem was that appropriate private sector accommodation was in short supply. W went to consult a solicitor about her difficulties on 20th December. A full description of W's history may be found in Appendix 1.
No relief for W under housing legislation
In order to understand the subsequent history of events and the issues we have to decide in this case, it is necessary to say something about recent developments in the law. The council was both the local housing authority and the local social services authority in W's case. As the local housing authority there was little prospect of it being able to help her with accommodation once her application under Part VII of the Housing Act 1996 ("the 1996 Act") had been rejected. It is obliged to comply with the provisions of Part VI of that Act in allocating accommodation, but although its allocation scheme has to be framed so as to secure that reasonable preference is given to families with dependent children, or households including someone with a particular need for settled accommodation on welfare grounds, there would be little prospect of W, as a new applicant, achieving any priority treatment once her application for such treatment as a homeless person was dismissed. Relevant statutory provisions are contained in sections 159(1) and (2), 161(1) and 167(1), (2) and (8) of the 1996 Act.
In those circumstances W's solicitor considered that it would be more appropriate to invite the council as the local social services authority to consider her children's needs under its powers in Part III of the Children Act 1989 ("the 1989 Act"). This part of the Act is entitled "Local Authority Support for Children and Families". It has now been quite extensively amended and enlarged by the Carers and Disabled Children Act 2000 and the Child (Leaving Care) Act 2001. It is divided up by the following sub-headings:
Provision of services for children and their families (ss 17 -19)
Provision of accommodation for children (ss 20–21)
Duties of local authorities in relation to children looked after by them (ss 22–23)
Advice and assistance for certain children (s 24)
Secure accommodation (s 25)
Supplemental (ss 26–30).
Sections 17(2), 23(9) and 29(6) also provide links with Schedule 2 of the Act, and the provisions of paragraph 7 of Part I of that schedule featured in the argument before us.
It is convenient to set out now the provisions of Part III which featured most prominently in the argument and in the cases we had to consider:
"17 Provision of services for children in need, their families and others
(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...
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