An examination of a Judicial Review involving the refusal of support under Children Act 1989 for a family claiming destitution.
The aproximate text of the podcast is set out below. A note of the case and the link to the judgment which is referred to is here.
This case involved a successful Judicial Review of a decision by the London Bexley to refuse housing and subsistence payments to a mother and 3 children under the Children Act 1989. This post can also be listened to as a podcast or watched on Youtube. The references to paragraph numbers in the judgement below are to the paragraphs on the Baili report.
The factual background was that mother had been working and supporting her family until 2015 when she had to stop due to her immirgration status as an overstayer. This status meant that she had no recourse to public funds and was not able to claim benefits or obtain housing as a homeless person under Part 7 of the Housing Act 1996. It also meant that she was not allowed to rent a private property herself even if she had the money with which to do so. She and the children were however entitled to be provided with accommodation and subsistence payments under the Children Act if Bexley was satisfied that they were destitute.
For just over two years Bexley accepted that the family were destitute and provided them with housing and subsistence payments. However, in September 2017 they carried out a new assessment and decided that the mother had additional income which she had not disclosed and that the family were not destitute. They carried out a fraud investigation and in June 2018 reached a decision that the family were not destitute, the children were not therefore in need and the family were not entitled to housing or support.
Judicial Review proceedings were issued and led to a 2 day hearing in January 2019 and a judgment from David Casement QC sitting as a Deputy High Court Judge on 1 February. He found that the council had failed to carry out a proper assessment or investigation and that their decision was Wednesbury unreasonable so that it had to be quashed. The judgement is worth reading as it shows how an unfair and hostile assessment by a council can be challenged through attention to detail. Unfortunately it has been very common for councils to make decisions of this kind and to hope that they can successfully defend Judicial Review proceedings by repeating unfounded accusations against destitute families.
The political background to the case lies in the creation of the hostile environment for migrants openly and unashamedly encouraged by David Cameron’s government. This built on the hostility of the previous Labour governments which had denied access to mainstream housing and support for migrants through the introduction of the Nationality, Immigration and Asylum Act 2002. Treaty obligations meant that the governments were not able to deny all support to children and leave them sleeping in the street with no food which is why accommodation and financial assistance remained available to destitute children and their families under the Children Act.
The changes since 2002 meant that hundreds of families with children who might previously have been entitled to mainstream housing and benefits now had to seek support under the Children Act. This in turn meant that Children's Services Departments were inundated by huge numbers of applications. They struggled to deal with this flood in terms of carrying out the necessary assessments let alone providing housing and support for those families whose children were found to be in need.
Unfortunately staff in many Children's Services Departments responded to the crisis which led to destitute families seeking assistance not by speaking out about the plight of the children but by adopting an increasingly hostile approach towards the children and their parents themselves. Lewisham council, for instance which for a long time was one of the worst when it came to the mistreatment of destitute children openly adopted a policy which it called “Robust Front Door”. This soon led to applicants being routinely branded as fraudulent and to assessments being carried out with a view to justifying the decision which had been taken to refuse assistance and to keep the front door shut. Applicants would be routinely refused support because their accounts were considered to be “plainly incredible” (an expression used by for Bexley in this case - see paragraph 36) or were accused of not cooperating with the assessment process because they were trying to hide their real comfortable incomes.
The hostile approach taken by councils towards destitute children received encouragement in 2013 with the case of R (MN) v Hackney where the council had decided that they were satisfied that the children of the family were not in need for the purposes of Section 17 of the Children Act because the parents were considered to have refused to cooperate with the assessment by not answering questions. A judicial review of the decision was dismissed. Unfortunately, I understand that the case was settled and the family were housed before the decision could be appealed. The original judgment was therefore left on the books and served as a green light for councils to slam their robust front doors in the faces of applicants. All they had to do was to complete an assessment report which concluded that the applicant parent(s) had failed to cooperate and had been dishonest. If the applicants issued Judicial Review proceedings indignant barristers reciting the allegations of fraud and bad faith on the part of the applicant would attend court. If they were lucky a busy judge might dismiss a Judicial Review challenge having concluded that Parliament had intended that local authorities should assess the facts in this sort of case such that it was not for judges to question the specialist decision making of council staff and that in any event that it seemed that the applicant had not cooperated with the assessment process. Fortunately in this case the Judge adopted an approach of subjecting the council’s decision making to an appropriate level of scrutiny.
So lets see what actually happened in this case.
I am not going to go into the legal framework in detail here as that would take too long. I will try and to this another time. For now though please just accept that in order for the family to be entitled to housing and subsistence payments the council had to be satisfied that they were destitute after carrying out a balanced assessment and only having regard to relevant matters.
In their decision they gave twelve reasons for this which are set out at paragraph 24. These can be summarised as being:-
- She had failed to provide timely evidence of the destitution claimed
- Her bank statements showed that she had regularly spent money on non essential items which she would not have done if she was really destitute.
- Despite claiming to be separated from her ex husband and divorced she maintained a good relationship with him and he was providing support for her family.
- She had other sources of income such as family, friends and work.
The mother’s challenge was based on four arguments which are listed at paragraph 3. These were that
- The council’s decision was based on material errors of fact.
- The council had failed to make sufficient enquiries and its decision is procedurally unfair.
- The council’s decision was based on a failure to take account of relevant and material considerations and based on taking account of irrelevant matters.
- The council’s decision was irrational and on the facts of the case was not one which was open to the council to take.
A good example of these errors of fact and of taking irrelevant matters into account was that that council had relied on the fact that the mother owned an iPad. They also referred to her owning computers. The mother confirmed that she did have an iPad and a computer (only one) but she stressed that she had bought these before she was destitute when she was working. She said that the council had never asked her when they were bought but had nevertheless asserted that they were bought after she became destitute. She also pointed out that the council had failed to put a number of their concerns such as this one to her so that she might have a chance to answer them. This was the point about procedural unfairness.
She also pointed out that the council’s assertions to the effect that she was receiving financial support from her ex husband was not based on any real evidence but was mere speculation.
The council had also suggested that the family could be given accommodation by family and friends without any evidence to suggest this.
In response to this the council argued that the mother was lying about the income available to her. They agued that they did not have to prove that she was receiving income from any of the sources they mentioned but that they were entitled to conclude that she was not destitute because she was not considered to have been full and frank during the investigation. The council did have to concede (see paragraph 36) that the mother had not even been asked about some of the things such as the purchase of the ipad.
Sadly this incredibly unfair approach is not unusual. The old argument about the mother’s account being “plainly incredible” was raised. The argument usually goes along the lines that the mother has been in the UK for a long time so it is plainly incredible for her to suggest that she does not have a support network which can provide her with housing and money. In reality I tend to find that by the time they apply to the councils destitute families have run out of people to help them and apply to the council as a last resort. The council suggested (at paragraph 43) that the council’ decision should be “looked at in the round so as to see the overall picture…”. This seems to be a request not to scrutinise the decision but to look at it in an unfocused or a superficial manner way which might lead to a prejudiced and unsupported conclusion being reached.
The Judge was not prepared to abandon property scrutiny and observed (at paragraph 44) that something more than mere suspicion or feel is required on the part of the council before drawing inferences with potentially serious consequences for the family. He went on to conclude at paragraph 48 that the council’s decision was flawed for the reasons argued by the mother and that the decision was therefore quashed.
This case is very encouraging. It shows councils cannot simply accuse people of lying and fraud without proper evidence obtained through a fair and balanced assessment process in the hope that a judge will consider their accusations in the round and not subject them to scrutiny. I hope that judgments like this will lead to an improvement in the quality of assessments by council staff.
A final word of warning here is not to think that a Claimant in Judicial Review proceedings can run arguments such as those run here about defective decision making and expect a Judge to adopt them straight away. I suspect that a very large amount of work went into this case in terms of analysing the council’s evidence and preparing counter evidence and arguments to show what the actual position was. This worked so well that it almost makes it look easy to achieve such a great outcome. Based on my experience it must have required great effort and skill on behalf of the Clamant’s legal team to scrutinise and respond to the council’s evidence so that the Judge was obliged to find in their favour. It could easily have gone the other way if the work had not been put in and answers to the accusations were not provided.
The claimant had sought housing from the appellant. It had taken the view that her application for indefinite leave to remain would be refused and had rejected her application. The court had found it improper of the council to prejudge the decision of the immigration authorities. The council appealed.
Held: The appeal failed. Except only in hopeless or abusive cases, the council were neither entitled nor required to make such a judgment. Hers was not such a case.
The questions they were to answer in making the housing decision did not include many of the criteria for assessment by the Secretary of State making his decision.
Articles About The Case
Human Rights Law Centre Obligation Of Public Authorities To Provide Accommodation And Support To Destitute Family
Local authorities are subject to a general duty in carrying out their functions, to make arrangements for ensuring that:
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need:
Children Act 2004, s.11(2)
Section 11 does not define “welfare”, but section 10 provides a statutory framework for co-operation between the local authority and relevant agencies with a view to improving the “well-being” of children in the area. Well-being for this purpose is defined as (a) physical, mental and emotional well-being; (b) protection from harm and neglect; (c) education, training and recreation; (d) the contribution made by children to society; and (e) social and economic well-being (section 10(2) ). The welfare of the child has long been given a broad meaning in family proceedings, encompassing physical, psychological, social, educational and economic welfare: Nzolameso v Westminster CC  UKSC 22,  PTSR 549 para. 23.
It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case: Nzolameso v Westminster CC  UKSC 22,  PTSR 549.
Further, in ZH (Tanzania) v. SSHD  2 AC 166, per Baroness Hale at  and , it was held that in cases where human rights are engaged, the duty applied even to decisions which only indirectly affected children, such as where one or both parents are to live.
The Content of The Welfare Duty
The duty originated in the UN Convention on the Rights of the Child. Article 3(1) states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
It is now clearly established that when Convention rights are engaged, section 11 has to be interpreted consistently with the UN Convention on the Rights of the Child: ZH (Tanzania) v Secretary of State for the Home Department  2 AC 166, H v Lord Advocate (Advocate General for Scotland intervening)  1 AC 413 and H (H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  1 AC 338. Those principles were summed up by the Supreme Court in Zoumbas v Secretary of State for the Home Department  1 W.L.R. 3690 as follows:
(1) The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention;
(2) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child's best interests do not of themselves have the status of the paramount consideration;
(3) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
(4) while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play;
(5) it is important to have a clear idea of a child's circumstances and of what is in a child's best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
(6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
(7) a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
Decisions must be sufficient to show that the decision maker has discharged its duty under section 11: Nzolameso v Westminster CC  UKSC 22,  PTSR 549
In order to facilitate the discharge of the general duty under s.17, authorities may provide services including providing accommodation, giving assistance in kind, or, in exceptional circumstances, cash: s. 17(6). Any service 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: s. 17(3).
In R (AM) v Havering London Borough Council and another  EWHC 1004 (Admin)  P.T.S.R. 1242 Cobb J summarised (at paragraphs 33(iv) to (vi), and (xix) to (xx) the principles to be derived from the case law as follows:
(a) Section 17 does not impose a duty to provide services, or accommodation: R (G) v Barnet London Borough Council, paras 85, 93, 106, 135: “A child in need … is eligible for the provision of those services, but he has no absolute right to them” (see para 85); R (VC) v Newcastle City Council, paras 21 and 27.
(b) Any refusal to provide assessed services under Part III of the 1989 Act is amenable to challenge by way of judicial review: R (VC) v Newcastle City Council, para 25.
In this respect, it is a general principle of public law that discretionary statutory powers must be exercised to promote the policy objectives of the statute: Padfield v Minister of Agriculture, Fisheries and Food  AC 997 and R (J) v Worcestershire County Council  PTSR 127, para 47;
As to the statutory objective Part III of the Children Act 1989 was intended to reflect the obligation in article 18.2 of the United Nations Convention on the Rights of the Child (1989) (Cm 1976) to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ensure the development of facilities and services for the care of children: R (G) v Barnet London Borough Council  2 AC 208.
(c) where there is an assessed need for services, any decision not to provide services will be subject to “strict and … sceptical scrutiny”: R (VC) v Newcastle City Council , para 26.
(d) In relation to the provision of housing/accommodation to a child in need, there is a specific and separate statutory code; although the local authority has the power to provide accommodation to a family under section 17, social services departments should not be converted into quasi-housing departments; section 17 is primarily designed to accommodate homeless children, not homeless families; in short, section 17 should not be construed in such a way as to “[drive] a coach and horses … through the housing legislation”: R (G) v Barnet London Borough Council, paras 45–47, 93, 138.
Consistent with the general duty in section 17(1)(b) to “promote the upbringing of children in need by their families”, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families: R (G) v Southwark LBC  UKHL 29;  1 WLR 1299 at  per Baroness Hale.
Further, the local authority will be obliged to provide assistance where a failure to do so would result in a breach of the local authorities obligations under the Human Rights Act 1998, or a breach of its public law and other statutory obligations.
always concern children needing to be accommodated with their families: R (G) v Southwark LBC  UKHL 29;  1 WLR 1299 at  per Baroness Hale.
Further, the local authority will be obliged to provide assistance where a failure to do so would result in a breach of the local authorities obligations under the Human Rights Act 1998, or a breach of its public law and other statutory obligations.
In R (J) v Worcestershire County Council (Equality and Human Rights Commission intervening)  EWCA Civ 1518  1 W.L.R. 2825 held that a local authority that has assessed a child as in need may provide those services in another local authority area, irrespective of the reasons for the child having travelled across borough. In deciding whether to do so a local authority is therefore entitled to consider the services which it will provide a child in need and in taking that decision the authority may take into account his connection with the area, how long the family intended to be away, whether they would be staying for short periods in many different locations and whether they were likely ever to return (paragraph 35).
The duty under section 17 is to assess the needs of the child and “need” in section 17(10)(a) includes situations in which the child is unlikely to maintain a reasonable standard of health or development without the provision of services by “a” local authority. There is therefore no requirement that the need should co-exist with the physical presence of the child in the authority’s area: Stewart v Wandsworth  EWHC Admin 709 (paragraph 29.Relevant guidance has been given to authorities by the Government in Working Together to Safeguard Children - A guide to inter-agency working to safeguard and promote the welfare of children (March 2013). Working Together states that the purpose of the assessment is:
- to gather important information about a child and family;
- to analyse their needs and/or the nature and level of any risk and harm being suffered by the child;
- to decide whether the child is a child in need and/or is suffering or likely to suffer significant harm; and
- to provide support to address those needs to improve the child’s outcomes to make them safe (para.27).
In R (AB and SB) v Nottingham City Council  4 CCLR 295 Richards J held (at ) that at the end of the assessment process “it should be possible to see what help and support the child and family need and which agencies might be best placed to give that help”. The Judge went on to criticise the assessment and plan in that case on the grounds that “there was no clear identification of needs, or what was to be done about them, by whom and when.” .
A lawful assessment must plan for the future foreseeable needs of the children: R (K) v Manchester (2007) 10 CCL Rep 87 at : “A lawful assessment under section 17 of the Children Act must necessarily examine not only the immediate, current circumstances of the child concerned but must also look to imminent changes in those circumstances.”
Paragraph 1 of Schedule 2 CA 1989 provides that every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.
In R (G) v Barnet LBC  3 WLR 1194, the House of Lords held that, although section 17 does not impose a mandatory duty on a local authority to take steps to satisfy the needs of a child in need, a local authority is under a duty to assess the needs of a child who appears to be in need - , , .
Para 77 - LORD HOPE OF CRAIGHEAD:
My noble and learned friend Lord Nicholls has said that, on the respondents' approach to the construction of section 17(1), it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1) and that this would go far to stultify the purpose of Part III of the Act. I should make it clear, before I embark on my analysis, that I am unable to agree that this conclusion follows from the respondents' argument. Section 17(2) provides that, for the purpose of facilitating the discharge of the general duty under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty of the local authority to take reasonable steps to identify the extent to which there are children in need in their area is to be found in paragraph 1 of the Schedule. That will involve assessing the needs of each child who is found to be in need in their area as paragraph 3 makes clear.
Para 110 Lord Millett
It does not follow that the social services authority is not obliged to assess the needs of the individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance; and in the present context that involves assessing the needs of the child in order to decide whether and the extent to which the authority will meet his needs. But there is no need to invoke this implied duty; as my noble and learned friend Lord Hope has explained, the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2.
Para 135 Lord Scott
In my opinion, in agreement with my noble and learned friend Lord Hope of Craighead, section 17(1) does not impose a mandatory duty on a local authority to take specific steps to satisfy the assessed needs of a child in need. If a mandatory order against a local authority to take some specific step is sought the applicant must either point to a specific duty to take the step imposed elsewhere in the Act (or in other legislation) or must invalidate the local authority's decision to decline to take the step on the usual reasonableness and proportionality grounds available in judicial review challenges. In my opinion, the appellants' appeals, in so far as they are based on a mandatory duty arising under section 17(1), should be dismissed. I am in full and respectful agreement with the reasons given by my noble and learned friend Lord Hope of Craighead on this issue.
The duty to assess is triggered by the mere physical presence of the child with the authority’s borough and nothing more is required. Accordingly, the duty may be owed by more than one authority simultaneously and will be owed by the authority in which the children live, together with the authority in which the children attend school: Sandra Stewart v The London Borough of Wandsworth, The London Borough of Hammersmith and Fulham, The London Borough of Lambeth  EWHC Admin 709
- Section 17 (10) defines ‘children in need’ as children -
- who are unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision of services by a local authority; or,
- whose health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or […]
“development” means physical, intellectual, emotional, social or behavioural development; and “health” means physical or mental health: s. 17(11) CA 1989.
- A child without suitable accommodation is a child in need: R (G) v Southwark LBC  1 W.L.R. 1299 at [28(2)]; R v Northavon ex p Smith  2 AC 402 per Lord Templeman and R (G) v Barnet  2 AC 208 per Lord Nichols at  and Lord Hope at , p.234; R (AM) v Havering London Borough Council and another  EWHC 1004 (Admin)  P.T.S.R. 1242 at para 33(x).