R (KS and AM) v LB Haringey [2018] EWHC 587 (Admin)


KS was the mother of two vulnerable young children: AM, aged six, and JM, aged 11. They lived together in a two-bedroom council property on the first floor of a block of flats.

AM suffered from autism with the effect that she had difficulties with sleep as well as social communication, interaction and behavioural difficulties, among other things. A report from her local mental health team:

‘…include[d] reference to her self-harming by banging her head and that she "can feel as if the world has fallen apart when a plan is changed or she cannot access something she is very interested in…". AM has difficulties with going to the toilet (she still wears nappies), diet (in that she will only eat certain foods) and speech. Most significantly she has no sense of danger, she does not understand risk and does not know how to keep herself safe and enjoys running and climbing. She is aggressive and violent towards other children, including her brother JM. It has also been noted, including by the Multi-Agency Safeguarding Hub (MASH) of Haringey Education Services that AM has "absences" which can last for up to 5 minutes where she will not respond to her name being called or hands being waved in front of her.’

JM also had a health condition, known as pulmonary regurgitation. That notwithstanding, he was a young carer for both his sister and his mother and would assist with feeding his sister and changing her nappy.

KS, for her part, had a number of mental and physical health difficulties including prolapsed discs in her back, a painful shoulder condition, high susceptibility to chest infections, and anxiety and panic attacks. The children’s father lived elsewhere and had his own full-time caring responsibilities for his parents, meaning that KS cared for AM and JM almost single-handedly.

KS sought alternative housing from Haringey LBC on the footing that the property was dangerous for the family to live in, because of its physical features. In particular, the flat had two outside balconies and the only way to keep AM safe was to lock the doors and hide the key. On one occasion when the key had not been hidden AM had, within minutes, managed to get out onto the balcony and begun to climb onto a table overlooking the play area below. The property was also said to be unsuitable for other reasons. Among other things, JM had to share a bedroom with KS as AM’s sleep patterns were sufficiently disturbed that he could not share a room with her without himself being deprived of sleep. In view of these issues, KS requested ground floor accommodation with three-bedrooms.

A Child and Family Assessment pursuant to s17 Children Act 1989 completed by children’s services several months after this request stated that the social worker dealing with the case was ‘very concerned that the home is… a safety risk’. Similarly, the fact that JM had to share a room with KS was described as ‘unsatisfactory’ and the social worker expressed the view that JM needed his own room in order to enable him to have the quality of rest he needed. The social worker endorsed the view that the family needed ground-floor, three-bedroom accommodation. By means of this assessment children’s services sought the assistance of the housing department under s27 Children Act 1989, seeking to have the family’s needs reassessed and for ‘appropriate accommodation’ to be provided.

An assessment was duly undertaken by the housing department but this did not change the family’s position: they had formerly been placed in Band C in terms of their priority for an allocation of social housing and following the assessment, notwithstanding children’s services concerns, they remained in Band C. In practical terms (in the words of the housing department) this meant that ‘it is highly unlikely that she will ever have sufficient priority to bid successfully for social housing’.

In the course of their decision making Haringey obtained advice from Dr Keen of Now Medical concluding that the property was ‘less than ideal’ but that the need for AM to have her own bedroom was not yet urgent and that there was no serious medical need to relocate. In relation to the risk of her falling from the balcony he expressed the view that ‘a fall from a first floor is unlikely to be fatal, and that availability of ground floor properties may be so scarce as to potentially delay a relocation, then I think that a first floor property is an acceptable alternative.’

The housing decision panel subsequently met to consider the case. They requested that consideration be given to whether the balcony doors might be permanently locked or fixed closed. However, this was subsequently ruled out as it might impede escape in the event of a fire. Nevertheless, the panel concluded that the household should remain in Band C as ‘the current housing situation is not so serious or critical as to warrant Band A or Band B priority’ and the risk to safety was ‘moderate’.

KS and AM sought to challenge Haringey’s decision making. HHJ Karen Walden-Smith allowed their application for judicial review. Children’s services, having recognised the the children were ‘in need’ for the purposes of s17 Children Act 1989 and established that their home was unsuitable, had referred the matter to housing and then closed the case. In doing so they had failed in their ongoing duties under s17 Children Act 1989 and s11 Children Act 2004. It was not consistent for children’s services ‘to be safeguarding and promoting the welfare of a child while not addressing the risks to that child’.

Concurrently, the housing department has erred in failing to exercise their discretion (contained in the allocation scheme) to place the household in in a higher band, or find some other way to provide suitable accommodation. This decision was irrational in light of children’s services assessment, which the housing department had failed to give due weight to. The determination that the risk to safety was ‘moderate’ could not be sustained after it emerged that the balcony doors could not be permanently fixed shut. Having failed to properly address the risks posed to AM the housing department had also acted in breach of s17(1) Children Act 1989 and s11 Children Act 2004, and in particular, the need to ‘actively promote’ the children’s welfare pursuant to the latter duty.

The housing department had also failed in their duty to cooperate with children’s services. The statutory duty under s27 Children Act 1989 requires a local authority, upon the request of another local authority, to take ‘any specified’ action save where to do so would unduly prejudice the discharge of any of the requested authority’s functions. Section 27 does not apply as between different departments within a single unitary authority. However, statutory guidance requires that ‘within a unitary authority different departments must act in the same way as would be required if s.27 did apply’. See R (M) and R(A) v Islington LBC [2016] EWHC 332. In this instance, a s27 request had been made that ‘suitable accommodation’ be provided. ‘By simply looking at the family's situation again and assessing that they remain where they are’ the housing department had unlawfully in failed to comply with that request.

The judge proceeded to quash the relevant decisions and grant a mandatory order that Haringey should put a plan in place to meet the unaddressed needs of the claimants, as well as reassessing and reconsidering the need to rehouse the family in line with children’s services request.

This summary is from Garden Court Chambers Web Site

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