The Queen (on the application of BC) v Birmingham City Council
| Jurisdiction | England & Wales |
| Judge | Mr Edward Pepperall |
| Judgment Date | 02 December 2016 |
| Neutral Citation | [2016] EWHC 3156 (Admin) |
| Docket Number | Case No: CO/5424/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 December 2016 |
[2016] EWHC 3156 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Edward Pepperall QC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: CO/5424/2016
Sam Jacobs (instructed by Bhatia Best Limited) for the Claimant
Catherine Rowlands (instructed by Birmingham City Council) for the Defendant
Hearing date: 15 November 2016
Judgment Approved
Mr Edward Pepperall QC:
On 26 October 2016, Birmingham City Council assessed that NM was not a child in need within its area within the meaning of s.17 of the Children Act 1989. Accordingly, the local authority has refused to provide him with accommodation. His mother, BC, seeks to challenge the Council's decision by this application for judicial review.
In fact, these proceedings had already been issued on 25 October 2016. Complaint was originally made of an alleged failure to make an assessment under s.17.
On 26 October 2016, the application was considered by Mr Justice Green on the papers. The judge ordered that the application for permission to pursue these proceedings be heard on 28 October. Pending the permission hearing, Mr Justice Green ordered the local authority to provide accommodation to BC and NM.
The matter then came before His Honour Judge Simon Barker QC sitting as a High Court Judge on 28 October 2016. The judge declined to continue the interim injunction. Upon the local authority's agreement not to take any time point, the judge allowed BC permission to amend her application in order to plead her challenge to the assessment of 26 October. Judge Barker QC gave further directions for the hearing of this matter and, in particular, ordered that neither the Claimant nor her son should be identified.
The matter came before me for a so-called rolled-up hearing on 15 November 2016.
THE BACKGROUND
BC is a 37-year-old Jamaican national. She came to the UK in April 2001. Her visa was extended until 2008, but she has since remained in the UK unlawfully. She is an overstayer and, pursuant to s.115 of the Immigration & Asylum Act 1999, she has no recourse to public funds. Consequently, by schedule 3 of the Nationality, Immigration & Asylum Act 2002, BC is not entitled to the provision of support or assistance pursuant to, among other statutory powers, s.17 of the Children Act 1989.
NM is a 6-year-old schoolboy. He was born on 28 September 2010 and lives with his mother, BC. He has no contact with his father.
Until recently, BC and NM lived in London. Most recently they lived together in Bromley together with BC's then partner. That relationship broke down and, in late June / early July 2016, BC came to live in Birmingham. Originally she moved in with her cousin, TG.
NM remained in London until around 10 October 2016 when he came to live with BC in Birmingham.
BC sought assistance from Birmingham City Council on 14 October 2016.
THE LAW
Section 17(1) of the Children Act 1989 provides:
"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) 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 17(10) provides that a child is to be taken to be "in need" if:
"(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled."
It will be evident that the question is not one of objective fact but rather calls for evaluative judgment by the local authority: per Baroness Hale in R (A) v Croydon London Borough Council [2009] UKSC 8; [2009] 1 W.L.R. 2557, at [26].
Section 17(6) provides that the services provided by a local authority under the section may include the provision of accommodation. Indeed, a child without accommodation is a child in need: R (G) v Barnet London Borough Council [2003] UKHL 57; [2004] 2 A.C. 208, at [19]. Where a service is provided to a child in need, it may also be provided for his or her family if it is provided with a view to safeguarding or promoting the child's welfare: s.17(3).
In R (C, T, M and U) v. LB of Southwark [2016] EWCA Civ 707, Ryder LJ summarised the established law on the effect of s.17 at [12]:
"12 It is settled law that the s.17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child's assessed need. The decision may be influenced by factors other than the individual child's welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council [2003] UKHL 57 ; [2004] 2 A.C. 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority's functions under s.17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child's needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child's best interests for the purposes of s.17 … in the context of the duty in s.11 Children Act 2004to have regard to the need to safeguard and promote the welfare of children."
WITHIN THEIR AREA
In R (Stewart) v Wandsworth London Borough Council [2001] EWHC Admin 709; [2002] 1 F.L.R. 469, a mother and her three children had been housed in local authority accommodation owned and managed by Hammersmith but located in Lambeth. Meanwhile the children attended a school in Wandsworth. Upon the mother losing her local authority accommodation, she applied to each of the three authorities for an assessment of her children's needs pursuant to s.17. Each denied owing any duty.
Mr Jack Beatson QC (as he then was), sitting as a Deputy High Court Judge, considered the meaning of the words "within their area" in s. Drawing on authorities under s.24 of the Act, Mr Beatson QC held, at [23], that the clear meaning of the words was that physical presence was required. Further, at [29], the deputy judge rejected a submission that physical presence, although necessary, was not of itself sufficient.
The issue arose in an acute way in R (J) v Worcestershire County Council [2014] EWCA Civ 1518; [2015] 1 W.L.R. 2825. The claimant's family was part of the travelling fairground community. In a typical year, the claimant passed through 16 different local authority areas. In giving the leading judgment, King LJ cited Stewart with approval observing, at [13], that the duty to assess is triggered by the physical presence of a child in need in a local authority's area and that nothing more is needed.
While she did not seek to challenge this statement of the law, Ms Rowlands queried how the Act operated in the case of a transient visit to a local authority area. In the course of her oral submissions, she gave the example of a child taking a train on a day trip to Westminster Abbey who might, certainly if travelling from Birmingham, pass through a number of different local authority areas. In my judgment, the answer to that submission is that the Act is not concerned with such trifling presence in an area. As Cobb J observed in R (AM) v Havering London Borough Council [2015] EWHC 1004 (Admin) at [42]:
"… it would … cause considerable confusion if the duties imposed by Part III [of the Children Act 1989] were deemed to hang on such a tenuous thread as a brief visit (even if by request) to attend an appointment in the area of the originating authority …"
That is not, however, this case. NM has been living in Birmingham since around 10 October 2016.
THE ASSESSMENT OF NEED
In R(O) v London Borough of Lambeth [2016] EWHC 937 (Admin), Helen Mountfield QC, sitting as a Deputy High Court Judge, explained the duty placed upon local authorities under s.17, at [16]–[21]:
"16 The duty to make reasonable enquiry is a duty to make those enquiries which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances.
17 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...
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R KI v London Borough of Brent
...have made the same decision had it conscientiously considered its discretion, which it failed to do. See e.g. R (BC) v Birmingham CC [2016] EWHC 3156 (Admin) at [65]. 119 The fact that some assistance has been provided by the Council in any event, as noted above, does not mean that this wou......