R (M & A) v Islington LBC (2016)


Two similar cases were joined. Each concerned the housing situation of a severely autistic child. In each case the children lived with their mothers in flats rented from the defendant local authority. Occupational therapy reports had concluded that the accommodation was unsafe for the children because both flats were above ground level and had windows and balconies which placed the children at risk of falling due to their impaired sense of danger. Risk management plans had been drawn up and implemented in each family’s current accommodation, but it was accepted that both families required more suitable accommodation.

Since 2014 both families had been assessed as being in an Amber risk category under the authority’s procedures on the basis that their needs were urgent but not immediate. They had been awarded priority points which had been reviewed and increased over time. Nevertheless by the hearing in January 2016 they still lacked sufficient points to have any realistic chance of making a successful bid on suitable accommodation.

In some Red risk cases (where needs had been assessed as immediate) the local authority had exempted the households involved from the normal bidding process under their choice-based Housing Allocation Scheme and had instead made exceptional direct offers of suitable alternative accommodation.

It was argued that the failure of the authority to transfer the families to alternative accommodation was unlawful. The claimants argued that the Disabled Children’s team should have made a request to the housing team, under s27 Children Act 1989, for the latter to make a direct offer of alternative accommodation.

The court expressed concern regarding the length of time for which the situation had persisted. Nevertheless, the delay was not sufficient in itself to render the local authorities decisions unlawful.

It was held that each department of the local authority had fulfilled its respective functions lawfully. The duty to co-operate could not be used to compel them to use their powers to meet needs in a particular way. Both claims were dismissed.

ANALYSIS: The judgement cites Lord Templeman in R v. Northavon DC ex p. Smith [1994] 2AC 402 (p.410) who concluded that a duty on one public body to co-operate with another (in that case the duty in s.27 Children Act) “does not require that the functions of the requesting or the requested authority are changed.” The key principle here is that requirements on public bodies to co-operate cannot be used to require one public body to demand (or even request) a second public body (or department within the same public body) to  do anything which it is not required to do by its own statutory duties. A co-operation duty does not compel a public body to choose to meet a need by means of making a request to another body (or department) where there are alternative lawful approaches available to it. Similarly, a body receiving a request for co-operation is only obliged to comply with that request if it is compatible with their own statutory or other duties and objectives and does not prejudice the discharge of its own functions.

Although this case dealt specifically with a duty of co-operation under Children’s law, the courts are very likely to take the same basic approach to the Care Act co-operation duties – see NYCC v MAG (2016).

This summary is from the Centre For Adult Social Care Website

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