A v Lambeth London Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCOTT BAKER |
| Judgment Date | 25 May 2001 |
| Neutral Citation | [2001] EWHC 376 (Admin) |
| Docket Number | Case No: CO/3698/2000 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 25 May 2001 |
[2001] EWHC 376 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Scott Baker
Case No: CO/3698/2000
Mr Richard Gordon QC and Mr Stephen Cragg (instructed by Fisher Meredith) for the Claimant)
Mr James Goudie QC and Mr Charles Béar (instructed by Sternberg Reed Taylor & Gill) for the Defendants)
This case raises questions about the nature and extent of duties placed on a social services authority under the Children Act 1989, in particular whether it has a duty under Section 17 to meet a need that it has previously identified.
The facts
The Claimant is the mother of three children. Two of the children have been diagnosed as autistic, Karl born on 2 February 1994 (aged 7) and Daziel born 21 December 1995 (aged 5). Both children have severe learning difficulties and require constant supervision. The family's accommodation is a two bedroom local authority flat with no outside play area. It is in a dangerous state of disrepair. The family has lived there since 1994 and the Claimant applied for a transfer in 1998 on the basis of the diagnoses of the children.
The family was given an overriding priority for a transfer on 21 September 1998 with a recommendation of a ground floor or low level flat with four bedrooms and a garden or a secured play area. On 5 June 2000 the Defendants were unable to say how long it would be before an offer was made, but their computer printout suggested it was likely to be a long time. The Claimant had restricted the areas to which she would be prepared to be re-housed because of the children's education and aftercare provision. The Claimant has been receiving four hours a week assistance from social services for the children. A further Children Act assessment was asked for and this took place on 22 May 2000. It is common ground that the assessment was under Section 17 with particular emphasis on the children's housing needs. There were core assessments for each of Karl and Daziel. They reached similar conclusions. These were that the family needed to be re-housed in appropriate accommodation with a garden. The existing accommodation was overcrowded, damp, unhygienic and dangerous for the boys. There were a number of risk factors. There has been liaison with the housing department but no provision by either department and no indication when any is likely to be made. In the evidence there is a statement from Linda McHugh, a team leader in the housing arm of the Defendants. This statement makes it clear that there has been an unsatisfactory delay in dealing with the Claimant's case. As at 8 February 2001 the family was still on the mainstream housing list but the housing panel was expected to meet shortly to decide whether the case warranted transfer to the emergency list. At the date of the hearing before me that had still, on my understanding, not occurred.
The specific needs that have been identified are to be away from the road, to have a garden and to have four bedrooms. There is a desire on the part of the mother, as I have mentioned, to live within a relatively narrowly defined area because of school and after school provision. Understandable though these desires are, they pull in a different direction from the specifically identified needs. In short, it is a tall order for any council to meet in the light of the limited physical and financial resources and the needs of other families.
Another assessment under the Carer's Recognition and Services Act 1995 was carried out on a different day by a different assessor. This looked at the Claimant's ability to care for her children. It confirmed the poor housing conditions.
The Law
Section 17 of the Children Act 1989 provides, so far as is material, as follows:
“(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 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.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(4) The Secretary of State may by order amend any provision of Part 1 of Schedule 2 or add any further duty or power to those for the time being mentioned there.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash.
(10) For the purposes of this part a child shall 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,…………….
(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed;…….”
It is common ground that the children in this case are disabled and that the definition of ‘disabled’ is the same as in the case of adults under the National Assistance Act 1948, a point relied on by Mr Gordon in emphasising the similarity of the duties under the two sections. The same definition appears in the Chronically Sick and Disabled Persons Act 1970.
The specific duties in Part 1 of Schedule 2 include:
• Taking reasonable steps to identify the extent to which there are children in need in their area (paragraph 1)
• Taking such steps as are reasonably practicable to ensure that those who might benefit from their services are aware of them (paragraph 1)
• Provision of services for disabled children to enable them to live as normal lives as possible (paragraph 6)
• Taking reasonably practicable steps to enable a child who is not living with his family to live with them or promote contact between them (paragraph 10).
It is also of note that paragraph 3 gives a local authority discretion to carry out a Children Act assessment at the same time as various other assessments of the child's needs.
It should be noted that Section 17(1) imposes what it describes as a general duty on social services authorities. The duty is defined by two broad objectives (i) to safeguard and promote the welfare of children in need within their area and (ii) to promote the upbringing of such children by their families. The subsection concludes by saying how the duties are to be performed, which is by providing a range and level of services appropriate to those children's needs.
Mr Richard Gordon QC, for the Claimant, submits that Section 17, although giving rise to an apparently general duty, in fact gives rise to a specific duty once a need for a service has been assessed. Thus in the present case there is a duty to provide accommodation for the Anderson family. He argues that the position is analogous to that under Section 21 of the National Assistance Act 1948 and relies, in particular, on R v Kensington and Chelsea Royal London Borough Council ex parte Kujtim (1999) 2 CCLR 340. He says that there is conflicting case law on the nature of the duty created by Section 17. R v London Borough of Bexley ex parte B, (2000) 3 CCLR 15, which suggests that the duty is no more than a target duty of the kind identified by Woolf L.J, as he then was, in R v The Inner London Education Authority ex parte Ali (1990) 2 Admin LR 822, should not be followed. However, even if the duty is only a target duty, once a need has been assessed and found to exist the duty crystallises into a specific duty and has to be met. The regulating principle is that once a ‘general’ or ‘target’ duty has been narrowed by way of an assessment of individual need then an individual duty, regardless of the generality of the statutory provision for which the need has been assessed, is triggered. The Defendants’ resources or ability in practical terms to meet the need are irrelevant.
Mr James Goudie QC for the Defendants submits that the duty under Section 17 has two clearly identifiable features. First it is owed to local children in need collectively and not to individual children, less still their parents. Secondly it is a duty to promote very broad objectives, not to perform particular tasks. This is clear from the language used, the broad aspirational concepts defining the duty and the reference to a group i.e. “children in need in their area”. There are two other factors that demonstrate the “target” nature of the duty. The first is the reference in the concluding words of subsection (1) to the provision of a general range of facilities, “a range and level of services,” which are to be available for the group, local children in need, collectively. The second is the Secretary of State's default power in Section 84 enforceable by mandamus to require a local...
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