A v Lambeth London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,SIR PHILIP OTTON,LORD JUSTICE CHADWICK |
| Judgment Date | 05 November 2001 |
| Neutral Citation | [2001] EWCA Civ 1624 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 2001 |
| Docket Number | Case No: C/2001/1275 |
[2001] EWCA Civ 1624
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE (MR JUSTICE SCOTT BAKER)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Chadwick
Lord Justice Lawsand
Sir Philip Otton
Case No: C/2001/1275
Richard Gordon QC and Steven Cragg (instructed by Fisher Meredith for the Appellant)
James Goudie QC and Charles Bear (instructed by Sternberg Reed Taylor & Gill for the Respondent)
INTRODUCTORY
This is an appeal, brought with permission given by the judge below, against an order made by Scott Baker J on 25 May 2001 when he dismissed the appellant's application for judicial review. As the judge said, the case concerns the nature and extent of duties imposed upon local authorities, in relation to their social services functions, by the Children Act 1989: in particular the legal quality of the duty provided for by s.17 of the Act, to which I will come in due course.
THE FACTS
The appellant has three children. Two of them, boys to whom I will refer as K (born on 2 February 1994) and D (born on 21 December 1995) have been diagnosed as autistic. Unhappily both have severe learning difficulties and require constant supervision. The appellant's own health has deteriorated and continues to deteriorate. The family lives in a two-bedroom local authority ground floor flat in the area of the respondent authority. This accommodation was provided under a secure tenancy in 1994. There is no garden or outside play area. The flat is and has been in a bad state of repair. It is close to a busy main road. Given the condition of her two sons which had by then been diagnosed, the appellant applied in 1998 for a transfer to other accommodation. On 21 September 1998 the council accorded the family what is called an "overriding priority", with a recommendation for a flat with four bedrooms and a garden or secured play area. A letter to the appellant's solicitors of 5 June 2000 recorded the appellant's restriction of her choice as to the location of any new home which she might be offered to four areas of south London said by the council to be generally the more popular areas, where "it will always be more difficult to get to the top of the list". They were Waterloo and Kennington, Clapham Common, Streatham, and Upper Norwood. The letter also stated that that the council "could not anticipate" when the appellant might receive an offer of accommodation: it would depend upon what was available in the neighbourhoods selected by her.
Although the entire focus of debate at the hearings in this court and below has been directed to the construction of s.17 of the Children Act, it is plain on the facts that the appellant's concern has been to obtain a transfer of accommodation, within the council's housing transfer scheme to which I will come. The vires for such transfer schemes is not of course the Children Act; as is common ground, that is to be found in s.21 of the Housing Act 1985. The letter of 5 June 2000 is all in terms apt to refer to the housing transfer policy ("A total of 246 points have been awarded to Ms A transfer case…"[sic]). The second "decision" sought to be reviewed in these proceedings was described on the face of the claim form as "[the council's failure] to consider other lawful options for the provision of accommodation to meet Applicant's family's needs including the exercise of power pursuant to the Housing Act 1985". However this aspect of the challenge was not proceeded with. The fact that the true genesis of this dispute was an application for a transfer under the council's scheme is of course in no sense an inhibition upon the pursuit of a claim framed by Mr Gordon QC for the appellant by reference to s.17 of the Children Act, nor did Mr Goudie QC for the council suggest as much. But it tends to underline one dimension of Mr Goudie's argument, namely that the position taken by Mr Gordon upon s.17 involves an illegitimate attempt to jump the housing transfer queue.
At length assessments were made by the council of the needs of K and D. They were seen by Beatrice Okoli, a social worker employed by the council, on 22 May 2000 together with the appellant and her third child. Reports of both assessments are before the court dated 14 August 2000. Each report states the purpose of the assessment to have been "Housing and Respite Care provision". In her witness statement Miss Okoli describes the assessments as "core children in need/child protection assessments" and states (paragraph 5) that they "were requested under the provisions of s.17 of the Children Act 1989 to have particular regard to the housing needs of the children".
The legal effects, or asserted legal effects, of these assessments are of great importance for Mr Gordon's case. At this stage I should note some of the contents. The two reports are in very similar terms, in many passages using identical language. It is necessary only to take these following extracts from the report on D.
Under "Special needs of family members…" –
"D is very hyperactive and destructive, he has smashed toys, chairs and anything he can lay his hands on. He throws things about and would attempt to run off to the road… Ms [A] ha[s] to provide constant supervision to ensure their safety. Ms A finds the entire situation difficult and gets stressed out… Ms A stated she does everything for D… Ms A is emotionally stressed, and very anxious about the entire situation…"
Under "Family and Social Relationships" –
"Ms A stated that they hardly go out because of D's behaviour and his lack of sense of danger. The family feels isolated and trapped at home. Most of their outings is going to church."
Under "Self Care Skills" –
"Ms A provides D's personal care needs."
Under "Family's/parents/carers capacity to meet child's need" –
"Ms A stated that she has a good relationship with her children and she is committed to their upbringing… Ms A realised that the biggest obstacle is their present accommodation as it is too dangerous for the children, both indoors and outdoors, and posed severe disadvantage to their overall health and wellbeing."
Under "Environment/Housing/Finance" –
"The flat is overcrowded, and damp, and the children's bedroom windows and kitchen units were broken. The family is living in appalling conditions… [in] a location very dangerous to the children as the flat is very close to the road."
Under "Family Views" –
"Ms A referred [to] their living condition as [un]inhabitable and depressing. She does not want the children to be taken into care, rather to be re-housed to an appropriate accommodation that would meet D and his siblings' needs. Ms A would prefer to have a care package where someone could come to the house and give them support. Ms A added that she found the care package she had in the past very helpful and requested if similar package could be reinstated."
Under "Summary of Risk Factors/Capacity to change" –
"There is risk as the flat is very close to the road and D has fixation with climbing out of the window and running out from the front door… The poor condition of the flat poses a health risk to D and his siblings. There is a risk of Ms A breaking down without support package to give her a break from caring for two children with autism and behavioural difficulties."
Under "Social Work Recommendations…" –
"The family needs re-housing to an appropriate accommodation… Domiciliary package to be provided."
Since those reports were prepared some steps have been taken. Some repairs to the property have been carried out. Steps have been taken to provide respite care. In the summer of 2001 the family took up places on a holiday play scheme. However the appellant and her children remain in the same flat. It is convenient next to describe the council's housing transfer scheme. The evidence for this appears in the witness statement of Linda McHugh, a team leader with the council.
There are seven categories, to any of which an applicant for a transfer might be allocated. They are described by Miss McHugh (paragraph 6) as follows:
"Category A: This category relates to tenants under the right to return scheme.
Category B: This is the emergency category. This covers emergency referrals. Cases are referred to this category by the [council's housing] panel…
Category C: This relates to supply transfers e.g. transfers with some urgency including decant and major repairs and including service tenants.
Category D: This is the mainstream tenant category.
Category E: This category relates to homeless applications.
Category F: This category related to referrals including social services and environmental health referrals.
Category G: This category relates to incoming nominations."
One might have thought that the appellant would have been placed in Category B, or (subject to referral by social services) Category F. However, she remains in Category D. Some of the history leading to this circumstance is set out in Miss McHugh's statement, and there is also an updated chronology provided by Mr Goudie. There have been delays on various fronts, including the council's housing department's consideration of the matter and the obtaining of medical advice from the family's general practitioner. It is proposed to complete a fresh assessment. Since there is no extant challenge to the council's treatment as a housing matter of the appellant's application for a transfer of accommodation, I do not propose to go into the details.
That is a sufficient recital of the facts for the purposes of the issues which fall for decision.
THE STATUTORY PROVISIONS
The ...
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