Tag Archives: Children Act

R (PO), (KO) and (RO) v LB of Newham 
[2014] EWHC 2561 (Admin)

Judgment of R (PO), (KO) and (RO) v LB of Newham

[2014] EWHC 2561 (Admin)

The Claimants were represented by Shu Shin Luh of Garden Court Chambers, instructed by Noel Arnold of Coram Children’s Legal Centre

On 28 July 2014 the High Court handed down judgment in the case of PO, KO and RO v LB of Newham, holding that the LB of Newham’s “Policy and practice guidance in respect of those with no recourse to public funds” (the NRPF policy) for supporting migrant families under section 17, Children Act 1989 was unlawful because (i) it was an unpublished policy; (ii) it applied standard rates to meet the subsistence needs of families which were flawed (iii) the standard rates outlined in the policy do not reflect or explain how the subsistence needs of children and family members supported under the policy can be met; and (iv) the review process provided for under the policy was defective as it was a review set against the flawed standard rates of subsistence. The Court directed the Defendant to reconsider the policy.

Background

The claim originated in October 2013. The Claimants are three children, ages 12, 7 and 3, all Nigerian nationals. Their mother, also a Nigerian national, acted as their litigation friend. At the time of proceedings, the children and their mother were overstayers with an application for further leave to remain which was pending with the Home Office. They were faced with eviction from their rented room by a bailff warrant. The Council provided the family with accommodation and following subsequent pre-action correspondence, provided the family with £50 per week to meet the whole family’s subsistence needs. It was an agreed fact in these proceedings that the Council accepted that the children were ‘in need’ within the meaning of section 17, Children Act 1989 (judgment at [6] and [7]).

Coram Children’s Legal Centre then initiated pre-action correspondence to inquire as to the basis upon which £50 per week was deemed sufficient to meet the needs of the 3 children and their mother. The pre-action correspondence detailed the difficulties the children and their mother faced in order to make ends meet on £50 per week. The Council’s position pre-proceedings was that it was a ‘set rate’ decided by ‘senior management’. No written policy was disclosed. The Council refused to increase the level of financial support (judgment at [8]).

Judicial review proceedings were started in October 2013, challenging the Council’s failure to assess the children’s and their mother’s needs lawfully and to provide them with subsistence which meets their needs. The claim challenged the Council’s undisclosed and unpublished policy setting the rate of support at £50 per week.

In reply, the Council disclosed an NRPF policy finalised on 31 October 2013 after proceedings were started, and asserted that the policy, applicable to the children and their mother, justified its decision to pay only £50 per week to the family. The children sought to challenge this NRPF policy in addition to the previous unwritten, unpublished (and never disclosed) policy. Permission to proceed with the claim was granted by the Court in December 2013 and the substantive hearing was listed to be heard on 10 July 2014.

In the interim, the Council carried out an assessment of needs of the children but maintained the decision to pay only £50 per week because the family’s needs were no greater than other NRPF families (judgment at [52]); the Council’s NRPF policy set rates which were linked to child benefit, sufficient to meet the children’s needs. The Council suggested that the children’s mother should seek charitable organisations for second-hand clothing.

In February 2014, the children and their mother obtained limited leave to remain with recourse to public funds. It took some time for the children’s mother to obtain a National Insurance (NI) number so as to apply for mainstream benefits and then it took some time for the mainstream benefits to come through. This did not happen until 26 June 2014. On 30 June 2014 the Defendant terminated all support to the Claimants and their mother and they were asked to present as homeless to the homeless persons’ unit.

The children and their mother invited the Council to review the manner in which they had been supported and to withdraw the NRPF policy on the basis that it did not set rates for support which reflected the needs of these particular children or children generally.

On the eve of trial, the Council offered to reconsider the adequacy of payments made to the children and whether to backdate any additional sum that they should have received. The Council proposed to do this in accordance with its NRPF policy. The children contended that any further or future decisions made in accordance with the NRPF policy would be unlawful.

Before John Howell Q.C., (the Judge) the issue was whether the Council’s reconsideration of the adequacy of payments and whether backpayments should be provided to the children by reference to the NRPF policy would be lawful.

Findings of the Court

The Judge held that:

(1) The Council was in principle permitted to operate a policy seeking to

set standard rates of payment to meet the subsistence needs of the families to whom the NRPF policy applied provided the policy

allowed for exception from it in exceptional circumstances, applying In re Findlay [1985] AC 318 (judgment at [43]).

  1. The failure to publish a policy and/ or make it available to families who may be affected by its application is unlawful, applying the dicta of the Supreme Court in R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at [35] (judgment at [40]).
  2. The starting point in a policy against which any exceptional circumstances have to be rated must be properly evaluated: R v North West Lancashire Health Authority [2000] 1 WLR 977 (judgment at [43]).
  3. Child benefits are a non-means-tested benefit paid to those, normally their mother, who are or who are treated as being responsible for children or qualifying young persons. It is not a benefit designed to meet the subsistence needs of the children. This can be illustrated by the difference between the current rates of child benefit and the amount that the Secretary of State currently pays to meet the ‘essential living needs’ of those on asylum support. The sum payable by way of asylum support for a child aged between 3 and 16 is nearly 4 times the current weekly amount of child benefits for a second child. There may be some difference between a child’s “essential living needs” and their “subsistence needs”, this was not explained by the Council. Furthermore, faced with that “sheer scale of difference”, no reasonable authority could have based its assessment of what was appropriate to meet the subsistence needs of a destitute child on the amounts payable in respect of child benefit (judgment at [45] and [46]).
  4. If the Council are seeking to keep a family together when that is in the children’s interests and to respect their Convention rights, it would make no sense to leave the adults to starve. The amounts payable would be additional to those which the Council considers are appropriate to meet the needs of the children involved. If the payment rates are derived from child benefit rates, it would be reasonable to expect that the standard rates of payments to meet the subsistence needs of the family would exceed the amounts which would have been payable by way of child benefits to take account of the subsistence needs of the adult members of their family (judgment at [47]).
  5. The Council’s NRPF policy does not do so. Once the rates in the policy are properly considered by reference to child benefits, it is apparent that there is no rational explanation of how the standard payments can be derived from the child benefit rates even if that standard could be reasonably regarded as a measure of what is normally required for that purpose (judgment at [47]).
  6. Nor is there any rational way in which the rate of standard payments to meet an adult’s subsistence needs could be derived from child benefit rates (judgment at [47]).
  7. The Council’s explanation of how the standard payments rates were derived provides no rational basis for the amounts chosen. The starting point for the policy is accordingly flawed (judgment at [48]).
  8. The Council’s submission that each family’s needs are considered on a case by case basis. This submission fails to reflect the terms and structure of the policy which explicitly states that the standard payment rates would apply normally. The policy provides for an increase in ‘exceptional circumstances’ but that is only if they are ‘exceptional circumstances’ not the norm. Otherwise, it is hard to understand what the point of prescribing standard rates would be (judgment at [51]).
  9. For a policy to be lawful where it provides for standard rates, it must provide for a mechanism by which these rates can be departed from ‘in exceptional circumstances’. But for such an approach to be lawful in practice, it is necessary that the standard rates to meet normal subsistence needs are lawfully determined. The starting point from which any departure requires exceptional circumstances to be justified was not lawful in the Council’s case (judgment at [53]).
  10. The Council’s submission that the policy in any event provided a review that “saved’ the policy was rejected. It is not “merely unrealistic to suppose that such an internal review will be conducted untrammeled by or without regard to any previously stated in the policy”, it would also be contrary to the statement in the policy that the guidance which the standard rates provide as to what amount is appropriate to meet the normal subsistence needs of a destitute family “will be relied on”. The review is in reality only limited to one to ascertain whether ‘exceptional circumstances’ arise in an individual case (judgment at [54]).
  11. The Council’s review mechanism is also fundamentally flawed because it is predicated on the person requesting a review and that requires someone knowing the existence of the policy, which is not possible in this case because the policy was not published (judgment at [55]).
  12. Further and in any event, the requirement that a person requests a review in writing is an internally inconsistent and “paradoxical” given the local authority is under a duty to assess what level of services are appropriate to the subsistence needs of a family to whom the policy

applies under section 17, Children Act 1989. The onus is on the authority to assess. To rely on those affected to complain in order to rectify any failure to identify the normal level of services appropriate to such needs lawfully ignores the duty which the authority itself has to assess need for services (judgment at [56]).

(14) The Court directed the Council to reconsider its policy before reconsidering the children’s case if it wishes to rely on it. It would be unlawful for the Council to apply the NRPF policy as it stands or to treat the standard rates of payment which it contains as appropriate to meet the normal subsistence needs of a family (judgment at [58]).

Dated 28 July 2014

SHU SHIN LUH

Garden Court Chambers

NOEL ARNOLD

Coram Children’s Legal Centre

Link to Report on Family Law Week

R (M) v Barking and Dagenham LBC and Westminster LBC [2002]

Summary

(Extract from Article by Andrew Sharland)

The claimant in that case was a tenant of Westminster LBC until her eviction for arrears of rent. Westminster provided her, her children and her partner with temporary accommodation within Barking and Dagenham LBC, from which they were then evicted as intentionally homeless. The question arose of which authority was responsible for assessing her children’s needs under section 17 of the Children Act. The court approved Stewart and applied the physical presence test, finding Barking and not Westminster to be responsible for assessing the children’s needs.

In that case Crane J also emphasised (at paragraph 17) the need for local authorities to take a structured approach to dealing with provision of services to children across authority boundaries:

“It is my understanding, from what all three counsel have been able to tell me in this case, that although no doubt all local authorities have attempted to co- operate where possible, no formal guidelines or structured arrangement has been adopted to assist them in cases involving s 17 where more than one authority may be involved. Such co-operation is plainly important. It is important to avoid any impression that local authorities are able to pass responsibility for a child on to another authority. I say straight away that I do not suggest that there has been any such motive in the present case, but local authorities are naturally concerned in areas where resources are short to avoid carrying out duties that are the duties of other local authorities. It is vital, particularly in cases involving children, that the needs of the children are given consideration and that, as far as possible, arguments about who considers and meets those needs do not hold up the provision of services to those children. To put it shortly, the needs should be met first and the redistribution of resources should, if necessary, take place afterwards. It is also important, quite plainly, that the parents of children should not be able to cause inconvenience or extra expense by simply moving on to another local authority, though I do not suggest that is what has happened in the present case.”

How Social Workers Should Respond To A Referral

Details of how to respond to a referral are set out at page 26. It is confirmed here that a decision as to how to respond to the referral should be made within one day. Interestingly it is also stated here that this should include determining whether the child is in need and should be assessed under Section 17 of the Act. This seems to be the wrong way round in that it is this assessment which determines whether the child is in need rather than being carried out once a finding has been made. Perhaps this should be treated as referring to the social worker deciding that they have reason to believe that the child is in need and that an assessment should be carried out. It is also stated her that the child and family must be informed of decision which is to be made within one working day. This does give us a lot of leverage to be making complaints very early on where there is no movement.

Reference is made at page 29 to requests being made for need for assistance from other parts of the local authority such as housing. It is hard to think what other assistance housing can provide other than accommodation. It might therefore be useful for us to be asking the Children's Services Department to ask the housing department for accommodation from their stocks used for homeless families.

At page 30 it is stated that assessments should be carried out in a timely manner. This means that the 45 working day time limit should not be treated as the absolute maximum time for completing the report rather than as the target date.

At page 30 it is stated the assessment should determine whether the child is in need and that if services as to be provided then a child in need plan should be developed setting out measurable outcomes. This provision might be of use in challenging assessments where the service are only referred to in vague terms.

The Statutory Guidance Working Together To Safeguard Children 2013 - Revised 2015

The most recent recent statutory guidance on carrying out assessments  and providing assistance under the Children Act 1989  is Working Together To Safeguard Children which came into effect on 15 April 2013 and was revised in March 2015. It replaces the earlier guidance, in particular the Framework for the Assessment of Children in Need and their Families (2000) as the primary source of statutory guidance for how Children's Services Departments should deal with homeless families which children who the Housing Department were refusing to assist.

Introduction To The Statutory Guidance

Those of us who assist homeless families in seeking support under the Children Act 1989 are often met with a hostile response from social workers and their lawyers. This is based on what appears to be an assumption that it is not the role of social workers to provide housing for people and that the clients and their solicitors are trying it on or abusing a system meant for protection of children from abuse by using it to claim housing which they are not entitled to by the “proper” or normal routes through the Housing Department. This guidance is reassuring for us in that it does make a number of express references to the provision of housing.

In addition to the protection of children from mistreatment this guidance states that that its overall purpose (as set out at page 7) includes preventing impairment of health and development and taking action to enable children to have the best outcomes.

For detailed consideration of Statutory Guidance see When Is Guidance Statutory And Does It Matter? from the Not So Big Society Blog

Changes Introduced By The 2013 Statutory Guidance

The new guidance is not hugely different from the old Framework guidance. Emphasis is now placed on the need for early intervention by social services and partner organisations such as schools and hospitals.

The most significant change in the new guidance is that the requirement for an initial assessment and (then if appropriate a more detailed) core assessment report to be produced later been dropped

Children’s Services now have to acknowledge the referral within 1 working day (see Page 23 Paragraph 55) They then have up to 45 workings days to produce a full assessment report. The initial acknowledgement requirement does go much further than simply confirming that a referral has been received. The acknowledgment should include a preliminary indication of whether the child is in need and proposals for interim support should be given.

The Key Principles of the 2013 Statutory Guidance

The two key principles are:

1. Safeguarding is everyone’s responsibility. (Page 8)

As referred to below this applies to all council staff including Housing Department staff. Compliance with this guidance should therefore lead to Housing Department staff stopping the practice of discharging their duty to make a referral of an intentionally homeless family with children to the Children’s Services Department under Section 213A of the Housing Act 1996 by simply notifying families of the option of approaching the Children’s Services Department if they wish to. They should now be actively working with the family to make a referral by obtaining their consent and working with staff in the Children’s Services Department to ensure support is provided as soon as possible to achieve a positive outcome for the children of the family

2. There should be child centred approach based on the needs and views of children (Page 9).

This not directly relevant to the issue of obtaining accommodation as compared to where there are concerns that a child is being mistreated. However it may be that the failure of Children’s Services Department staff to meet with the children following a referral in a homelessness situation can be treated as being indicative of not following the guidance or providing an adequate service. This key principle can also be used to challenge assessments of the children of intentionally homeless families which focus on criticising the actions of the parents rather than the needs of the child.

Early Help Assessments

The guidance encourages the provision of early help using the Common Assessment Framework (CAF) as an alternative to a formal assessment under Children Act 1989.  Such help can be provided by other agencies such as schools. The idea is that the provision of Early Help might help identify problems before they become servere and prevent needs escalating to the  point where intervention would be needed via a full statutory assessment under the Children Act 1989.

It is made clear at paragraph 11 on page 13 that if at any time is  considered that a child may be in need as defined in the Children Act 1989 a refer all should be made immediately to the local Children’s Services Department. The Early Help assessment should be seen as a preliminary step to be taken when professionals consider that “children may benefit from early help services” (see paragraph 7 on page 12) rather than services following a full Children Act assessment.  The idea seems to be to encourage other agencies not to ignore signs that children may be in need and to make referrals to Children’s Services Departments if they cannot resolve the problems themselves with early help.

I have always found that anything less than a formal assessment under Children Act 1989 tends to result in families only receiving general advice from duty social workers or reception staff to the effect that there is no support available.   It usually takes the formality of the full assessment process to focus the minds of  staff in Children’s Services Departments on their obligation to provide support. I do not believe therefore that housing lawyers will have much of a role to play in Early Help.  With the sort of cases were are dealing with it will be necessary to make a request for a full assessment as soon as possible.

Co-Operation Between Different Agencies

The guidance reminds readers that Section 10 of the Children Act 2004 requires  social services authorities to make arrangements to promote co-operation between the authority and its relevant partners. These include a number of bodies set out in Table A In Appendix B. For our purposes this can be treated as including the Housing Department staff. Solicitors or other advisers assisting families cannot however be treated as relevant partners for this purpose.

The guidance refers at page 12 paragraph 8 to the need for an inter-agency assessment where a child and family would benefit from co-ordinated support from more than one agency such as housing there should be an inter-agency assessment.

Until now different departments councils have been very bad at working together to help families with housing problems. After deciding that no duties are owed to a family under Part 7 of the Housing Act 1996 Housing Department staff tend to close their files and wash their hands of the families. Staff in the Children’s Services Department are often not trained to deal with housing issues and are often reluctant to assist because they do not believe that social workers should be sorting out housing problems. In future we might be able to overcome this problem by asking staff in Children’s Services Departments to treat the assessment process as being “inter agency” and including the Housing Department from the staff. This can be tied in following the assessment with the requirement of the guidance (at page 26) to the need for assistance to be provided from other parts of an authority including the Housing Department.

Referrals to Social Services

The guidance provides (at Page 14 Paragraph 18) that local authorities should produce Threshold Documents which cover the the process for early help assessments and the criteria, including the level of need when a case should be referred to the local authority for assessment and statutory services under the the Children Act 1989.

Any member of the public can make a referral to social services. Contact details for who to make a referral to should be signposted (page 14 paragraph 19). Feedback should be given to the persons making the referral on the decisions taken. Where appropriate this feedback should include the reasons why a case may not meet the statutory threshold to be considered the the council for assessment (page 14 paragraph 21)

Statutory Assessments

The guidance sets out a summary of what constitutes “in need” in this context at page 17. In the context of homelessness it is reasonable to treat the threat of street homelessness as being such as to mean that the child is unlikely to achieve a satisfactory level of health and well being.

References is also made at page 17 to accommodating children under Section 20 of the Act. This is referred to as being appropriate where there is no one who has parental responsibility for them or because they are alone or abandoned. No reference is made to accommodating a child on their own under Section 20 where there is no accommodation available for the family. This should be referred to when social workers advise families that there is nothing that they can for for them other than that to take their children into care or otherwise house them on their own without their parents or family.

Reference is also made to Section 47 of the Act which places a duty on councils to make enquiries if they have reasonable cause to suspect that a child is suffering or is likely to suffer, significant. This section is more applicable to situations where a child is being mistreated. As such is it unlikely to arise in cases which only concern the need for housing and financial support.

The purpose of the assessment is summarised at page 18 as being:-

·       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 decided whether the child is a child in need (section 17 and/or is suffering or likely to suffer significant harm (section 47); and

·       to provide support and address those needs to improve the child’s outcomes to make them safe

The guidance sets out (at paragraph 32 on page 19) what are considered to be the parameters of a good assessment. These are only set out in vague terms and will often be observed in the breach. The items relevant to housing situations include the assertions that high quality assessments :-

·       are focused on action and outcomes for children.

·       are holistic in approach, addressing the child’s needs within their family…

·       lead to action, including the provision and review of services

·       are open open to challenge.

The Assessment Framework

The framework diagram included at page 20 of includes housing and income as part of the Family and Environmental Factors to be considered. This can be referred to when social workers suggest that children act assessments or Children’s Services Departments are only concerned with parenting skills and do not cover housing or finances.

At paragraph 38 on page 21 it is stated that social workers should wherever possible meet with the child. Strictly speaking this is not really necessary where we are only asking for housing or financial support. However, the guidance and ethos behind it does place emphasis on assessments being “child centred” so that meeting with the child is important. Failure to meet with the child can be used as an additional ground for complaint or challenge where council’s refuse assistance summarily or without a proper assessment.

At page 23 it is stated (at para 55) that there should be a decision about the type of response within one working day and acknowledge receipt of the referral to the referrer. It is also stated here (at para 57) that the maximum timeframe for  the assessment to conclude is 45 working days. If this is exceeded the social worker should record the reasons for this. At para 58 it is stated that where needs are identified during the assessment social workers should not wait for the conclusion of the assessment before providing services for the child and their family

At page Page 24 the guidance confirms that the old Initial and Core assessments are no longer needed

At para 61 on Page 24 the guidance states that authorities should determine their local assessment process through a protocol. Paragraph 62 states that these should be published. Solicitor and adviser helping homeless families and young persons should try and get copies of these.

How Social Workers Should Respond To A Referral

Details of how to respond to a referral are set out at page 26. It is confirmed here that a decision as to how to respond to the referral should be made within one day. Interestingly it is also stated here that this should include determining whether the child is in need and should be assessed under Section 17 of the Act. This seems to be the wrong way round in that it is this assessment which determines whether the child is in need rather than being carried out once a finding has been made. Perhaps this should be treated as referring to the social worker deciding that they have reason to believe that the child is in need and that an assessment should be carried out. It is also stated her that the child and family must be informed of decision which is to be made within one working day. This does give us a lot of leverage to be making complaints very early on where there is no movement.

Reference is made at page 29 to requests being made for need for assistance from other parts of the local authority such as housing. It is hard to think what other assistance housing can provide other than accommodation. It might therefore be useful for us to be asking the Children’s Services Department to ask the housing department for accommodation from their stocks used for homeless families.

At page 30 it is stated that assessments should be carried out in a timely manner. This means that the 45 working day time limit should not be treated as the absolute maximum time for completing the report rather than as the target date.

At page 30 it is stated the assessment should determine whether the child is in need and that if services as to be provided then a child in need plan should be developed setting out measurable outcomes. This provision might be of use in challenging assessments where the service are only referred to in vague terms.

Other Issues

At page 47 the Guidance states that Section 11 of the Children Act 2004 places a duty on councils when discharging housing duties to do so with regard to the need to safeguard and promote the welfare of children. This is probably vague enough for housing departments to get away with doing nothing other than assuring anyone who asks that children’s welfare is always considered by the Housing Department.

An interesting requirement is that set out at Page 47 that all council departments should have a clear line of accountability for providing services for safeguarding and promoting the welfare of children. Solicitors and advisers should be asking housing departments what their line of authority and arrangements for protecting the welfare of children are and asking them to explain decisions against this.

At page 53 there is a reference to housing and homelessness services being subject to Section 11 duties and becoming aware of conditions that could have an adverse impact on children. Interestingly it does not refer to them creating such conditions themselves such as by terminating the provision of accommodation

At page 102 the Guidance deals with Section 213A of the Housing Act 1996. It states children of families who are not being housed under Part 7 of the Act may be in need if no further assistance is given under that Act. It goes on to say that where the children are in need social services may ask the housing authority for reasonable advice and assistance for helping the family to obtain accommodation and the housing authority must give reasonable advice and assistance. We can therefore be asking Children’s Services Departments to consider such requests to housing as part of the assessment process following a referral under S213A.

Transcript R (ota N) v LB of Newham [2013]

Neutral Citation Number: [2013] EWHC 2475 (Admin)
Case No: CO/12740/2011

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 09/08/2013

Before :

THE HONOURABLE MRS JUSTICE SWIFT DBE
- - - - - - - - - - - - - - - - - - - - -
Between :

N and N Claimants
(by their litigation friend and father, CBN)

- v -

LONDON BOROUGH OF NEWHAM First Defendant

and

ESSEX COUNTY COUNCIL Second Defendant

(Transcript of the Handed Down Judgment of
WordWave International Limited
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Mr Alexander Campbell (instructed by Edwards Duthie, Solicitors) for the Claimant
Mr Hilton Harrop-Griffiths
 (instructed by London Borough of Newham Legal Services) for the First Defendant
Mr Thomas Amraoui 
(instructed by Essex Legal Services) for the Second Defendant

Hearing date: 2 July 2013
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
Judgment
As Approved by the Court

Crown copyright©
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MRS JUSTICE SWIFT DBE

Mrs Justice Swift DBE :
THE PROCEEDINGS

1. The claimants are two children, who were aged six and four years old at the time of the relevant events. In order to protect their anonymity, the court has ordered that they be called N and N. They bring these proceedings by their father and litigation friend, CBN.

2. On 23 December 2011, the claimants made an application for interim relief pending issue of an application for judicial review.  Lindblom J ordered that the first defendant should provide the claimants with accommodation and support forthwith and until further order of the court.  On 30 December 2011, the claimants issued an application for judicial review in which they challenged decisions made by the first and second defendants not to provide them and their parents with accommodation and support pursuant to section 17 of the Children Act 1989 ("the 1989 Act").

3. On 27 February 2012, Mr Michael Kent QC, sitting as a Deputy High Court Judge, gave permission to the claimants to apply for judicial review.  On 22 January 2013, Miss Belinda Bucknall QC, sitting as a Deputy High Court Judge, gave the claimants permission to amend their Grounds in order to reflect the events which had happened over the previous year. Since 23 December 2011, the first defendant has continued to provide the claimants and their parents with bed and breakfast accommodation in Newham and with   financial support pursuant to the order of Lindblom J.

FACTUAL BACKGROUND
The claimants' family history

4. The claimants' parents are Nigerian nationals. Both are well educated and hold degrees. The claimants' father entered the UK illegally in 1984 (having absconded from the airport when the plane on which he was travelling was impounded) and has remained in the UK ever since. Their mother entered the UK as a visitor in 1995 and stayed over when her visa expired. She and the claimants' father met in 2004 and married in 2005. The claimants were born in 2007 and 2009. Previous applications by the claimants' parents for leave to remain in the UK were unsuccessful. In October 2011, they came to the attention of the immigration services and, in November 2011, their temporary admission was authorised, with a requirement of regular reporting.  On 9 August 2012, the UK Border Agency ("UKBA") informed the claimant's parents' immigration solicitors that it intended to reconsider their applications for leave to remain. No decision has yet been made on those applications. Meanwhile, neither of them has the right to work in the UK, nor any recourse to public funds.

5. It appears that, from the time of his entry into the UK until his marriage in 2005, the claimants' father worked illegally whilst living either in private rented accommodation or with friends. Between 2005 and 2009, he and the claimants' mother (and, for the later part of this period, the claimants) continued to live in private accommodation in Ilford, Essex, both working illegally.  In 2009, the claimants' father lost his job as a security guard because his immigration status made it impossible for him to obtain the required licence. After that time, he did various "cash in hand" jobs and received financial assistance from friends and the church at which the family worships.  In April 2010, the claimants' mother was arrested; subsequently, she was sentenced to a period of imprisonment for an offence of using false identity papers to obtain employment.  Whilst she was in prison, the first claimant lived with a private foster carer, who was a close friend of the family from Nigeria and the first claimant's godmother. The claimants' mother was released from prison in late May 2010 and, shortly afterwards, the family moved to private rented accommodation in Harlow, Essex, having been threatened with eviction from their previous home because of rent arrears. The first claimant attended a nursery in Harlow for six months in 2011 and the family was registered with a GP in Harlow. In August 2011, they were again evicted from their accommodation because of rent arrears.

6. From that time until 17 December 2011, the family stayed in various bed and breakfast establishments in Ilford, Harlow and Walthamstow and, on occasion,   on church premises or in the family car. Meanwhile, in September 2011, the first claimant had begun primary school in Harlow. When the family moved to Walthamstow, he was taken to and from school by car. Even after the car was sold in November 2011, the claimants' parents continued to take the first claimant to and from Harlow each day until the end of the Christmas term, 2011.

7. On 18 December 2011, the claimants and their parents were evicted from the bed and breakfast accommodation where they had been sleeping without the knowledge or permission of the owner. The family spent that night in Whipps Cross Hospital where they had taken the second claimant, who is asthmatic and was suffering from a cold, for medical advice.

The involvement of the second defendant
The events of 19 December 2011
8. On 19 December 2011, the family was in Waltham Forest, East London, where the claimants' parents made contact with solicitors who sought help on their behalf from the London Borough of Waltham Forest ("Waltham Forest LBC") .  Waltham Forest LBC referred them to the second defendant and paid for a taxi for them to travel to Essex. The claimants and their father arrived in Harlow in the late afternoon of 19 December 2011 and met the second defendant's social worker, Ms Maureen Conroy-Brown. The claimant's mother was reported to have stayed in London in order to see whether other members of her family could give them assistance. She intended to travel to Essex later that evening by train. The claimant's father told Ms Conroy-Brown that his wife's family would give her the money for the train fare.  Ms Conroy-Brown noted that the children were dirty and unkempt and had little food. She took the decision to provide them (and because of the claimants' young age, their parents also) with one night's bed and breakfast accommodation in Harlow and a voucher to buy food. She also decided that an initial assessment of the claimants' needs should be undertaken, pursuant to section 17 of the 1989 Act, and that the immigration status of the claimants' parents should be ascertained.

The events of 20 December 2011
9. On 20 December 2011, Ms Conroy-Brown proceeded with the initial assessment. She obtained information from the London Borough of Hackney ("Hackney LBC"), who had carried out an assessment of the family whilst the claimants' mother was in prison.  She made further enquiries of Ilford Social Care ("Ilford") which had also been involved with the family. Ilford had previously offered the family transitional arrangements to return to Nigeria which they had declined. It was reported that the claimants' parents had told Ilford Social Care that they had friends and extended family who had been supporting them.

10. On 20 December 2011, Ms Conroy-Brown spoke to the claimants' mother who told her that her husband had gone to London to see his family, paying for his fare with money that her aunt had given to her. The claimants' mother said that her brother, a doctor who lived in the North of England, was travelling south that day and was going to help her. She told Ms Conroy-Brown that her family had been helping them but, in the previous month, she had been trying to manage without their assistance. She said that she was going to ask her family for support again. She said that her husband had "made wrong decisions" and "needed to change ways that things are done".  She spoke about staying at the bed and breakfast accommodation where they had spent the previous night and financing it herself.  Following that conversation, Ms Conroy-Brown told the family that the second defendant would not be providing them with accommodation that night.

11. Subsequently, the claimants' solicitors contacted the second defendant's legal department, renewing the request for accommodation.  In the event, it does not appear that this request was pursued further since the claimants and their parents travelled to London later that day, where they were provided with money by a church. They used the money to pay for board and lodging in bed and breakfast accommodation in the first defendant's area.

The initial assessment
12. Ms Conroy-Brown completed her initial assessment of the claimants on 22 December 2011. It was based on her meeting with them and their father on 19 December 2011 and on the information she had subsequently obtained about their past history. In her assessment report, she observed that the children were well behaved and responded appropriately to their father who displayed affection towards them. However, she also referred to their poor hygiene and the fact that the first claimant appeared hungry. She expressed concern about the effects of the lack of stability and continuity in the claimants' lives on their emotional well being and social development. She noted that the children had no clothes with them save those they were wearing and no toys or other personal belongings. She had been told that the family's possessions were being stored in London.

13. Ms Conroy-Brown concluded that:

" … due to financial circumstances, the parents are not meeting the children's basic needs … The family have no home … The children have no stability … They are continually moving, do not appear to have any toys and would find it difficult to sustain friends due to the constant moves."

Under the heading "Action taken", she ticked the box entitled "Provision of Services (s17)". I infer that the tick was intended to indicate that accommodation and support had been provided for one night. This is supported by the entry under "Reasons for these Action (sic) Taken" which stated, inter alia:

"… [the second defendant] financially supported one night B & B for the family and have been advised they have moved on."

14. An "initial plan" set out in the assessment report identified the steps to be taken by the second defendant during the period 22-29 December 2011. Those steps included the carrying out by the second defendant of checks with the family's GP and the first claimant's school, and the monitoring of the case by the second defendant to ascertain whether the claimants' parents were able to provide for them.

The letter before claim
15. By the morning of 23 December 2011, the claimants' parents had exhausted the funds provided to them by the church on 20 December 2011. At that time, the family was in Newham. The claimants' solicitors sent a letter before claim addressed to the first and second defendants stating that (i) the claimants and their parents were street homeless; (ii) the claimants and their parents were physically present in the first defendant's area; and (iii) the first claimant attended school in the second defendants' area. The letter required the defendants to give consideration to their duties under s17 of the 1989 Act and to carry out appropriate assessments. It further required one of the defendants to provide accommodation and financial support for the claimants and their parents pending the outcome of the assessments. The letter sought details of previous contact between each defendant and the claimants' family.

16. The letter before claim was received by the second defendant just before 12 noon on 23 December 2011, the Friday before Christmas. At 12.32pm, the second defendant responded by email in the following terms:

".. this family is not homeless in [the second defendant's] local Authority area and is homeless in [the first defendant's] area   …
As such the children are children in Need in the area of [the first defendant]

[The first defendant] has a duty to provide these children with accommodation in accordance with case law and the Children's   Act section 17 forthwith."

17. For reasons that have never been explained, the second defendant did not inform the claimants' solicitors or the first defendant that it had very recently beforehand carried out an interim assessment of the claimants' needs. Nor did it inform them of the outcome of that assessment or the fact that it had an interim plan in place. The second defendant sent a copy of the assessment to the claimants' solicitors under cover of a letter dated 24 May 2012. The claimants' solicitors sent those documents to the first defendant on 26 June 2012.

18. On 29 December 2011, having learned of the interim order which had been made against the first defendant by Lindblom J on 23 December 2011, the second defendant closed the claimants' case.

The involvement of the first defendant
The events of 23 December 2011

19. Before 23 December 2011, the claimants' family had made no request for assistance to the first defendant. The first intimation of such a request was when the first defendant's legal department received the letter before claim by fax timed at 12.04 p.m. on 23 December 2011. There were few members of staff in the office and the fax was not picked up until about two hours later. An email exchange then took place between the claimants' solicitor, Ms Rosie Fung, and the first defendant's lawyer, Ms Sameera Khan, during which Ms Fung told Ms Khan that, so far as she was aware, the second defendant had not undertaken any assessment of the claimants' needs. That was in fact not the case as (presumably unknown to Ms Fung), the second defendant had by that time completed its initial assessment.

20. At  3.22pm, Ms Khan sent an email response to the letter before claim, stating:

" … I am clear that the family are ordinarily resident in [the second defendant's area] and are not the responsibility of [the first defendant]."

The email went on to note that it appeared that the claimants' family had been living in bed and breakfast accommodation for one or two days in Newham and Redbridge and that they had no other connection with the first defendant's area. Ms Khan contended that temporary residence between local authorities was not evidence of "ordinary residence" in the area of one of those authorities. She said that the first defendant would not provide accommodation for the family.

21. On the evening of 23 December 2011, an out of hours application for interim relief was made to Lindblom J, who ordered that the first defendant should provide the claimants with accommodation and support forthwith and until further order of the court. The claimants and their parents have continued to receive accommodation and support provided by the first defendant ever since.

The assessments of January and July 2012

22. The first defendant's social worker, Mr Mohamed Yongawo, met the claimants and their parents on 3 January 2012 and completed an assessment of each claimant's needs on 12 January 2012. On 12 July 2012, he completed a   further assessment of whether there would be any breach of their rights under articles 3 and/or 8 of the European Convention on Human Rights ("ECHR" or "Convention") if support for the family was refused (an "ECHR assessment").  His conclusions were that the claimants were not children in need for the purpose of section 17 and that their article 3 and 8 rights would not be breached if support for the family was refused.

The updated assessments of 17 September 2012 and 12 October 2012

23. The earlier assessments were superseded by an updated assessment on each claimant for the purposes of section 17 completed on 17 September 2012 ("the September 2012 assessments") and an updated ECHR assessment on each child completed on 12 October 2012 ("the October 2012 ECHR assessments"). The assessments were undertaken by Mr Yongawo on the basis of a number of meetings and telephone conversations with the claimants' family, together with enquiries made of the first claimant's school and the family's GP practice.

24. At the time of Mr Yongawo's enquiries, the family was of course housed in accommodation provided by the first defendant with financial support (albeit modest) also provided by the first defendant. Mr Yongawo noted that the children appeared to be in good health, well fed, appropriately dressed, clean and well behaved. The first claimant was progressing well at a new school and the second claimant was about to start at nursery. Mr Yongawo observed that he had no concerns about the ability of the claimants' parents to provide safe, appropriate and emotional care for the claimants.

25. In the September 2012 assessment reports, Mr Yongawo stated that, at his initial meeting with the claimant's parents in early January 2012, they had asked for accommodation for six weeks so as to enable them to attempt to make alternative arrangements. (The claimant's father's account of this conversation was rather different.  He said that the suggestion that he and his wife should find accommodation came from Mr Yongawo.)  At any rate, by August 2012, they did not appear to have made any progress in finding accommodation or any means of support.  Mr Yongawo was given no information about any attempts that the couple had made to secure accommodation or support. He attempted to discover from the claimants' parents whether they had family or friends in the UK who might be able to offer them accommodation and/or financial support until the UKBA had made a final decision on their applications to stay in the UK. The claimants' parents refused to provide this information. Despite repeated requests to do so, they also declined to provide the names and contact details of any family members, whether in the UK or Nigeria, or of any of the large network of friends they claimed to have. When specifically asked for contact details for the first claimant's godmother, they refused to give them. They would not give Mr Yongawo details of the addresses at which they had previously lived. They told Mr Yongawo that they continued to receive a "little" financial support from their church in addition to that provided by the first defendant but gave no further details.

26. In his September 2012 assessment reports, Mr Yongawo concluded that the claimants were not children in need. The reasons for his conclusion are set out in the following  passages:

"There are no concerns regarding [the claimants' parents'] ability to provide safe, appropriate and emotional care for [the   claimants]. It is therefore the department's position that [the claimants] are not children in need within the meaning of section 17(10)(c) because they can rely on their parents' support network in the UK rather than Newham while their immigration status is resolved…

[The claimants' parent] have been offered temporary accommodation to facilitate their efforts to make appropriate enquiries of friends and social connections but it appears that this opportunity has not been effectively utilised."

That decision is challenged and I shall return to it later in this judgment.

27. Much of the information contained in the October 2012 ECHR assessments replicated that in the September 2012 assessments. However, there was some additional evidence about the family's financial situation. The claimants' parents told Mr Yongawo that they had been supported until recently by their extended family members (in particular, the claimants' maternal uncle) and friends, but did not see the need to seek further support from family and friends. The claimants' mother refused even to discuss her extended family in Nigeria. She stated that her difficulties were the responsibility of her husband, not her own family.  The claimants' parents would not consider returning to Nigeria. They said that they would be unable to obtain work there and the facilities for health and education were of a lower standard than in the UK.

28. In the October 2012 ECHR assessments, Mr Yongawo did not identify any respect in which withdrawal of support or return to Nigeria would breach the claimants' family's rights under articles 3 or 8. His conclusions were identical to those in the September 2012 assessments. He referred the case to his team manager for a decision as to why the claimants should or should not receive continued support. There is no record of any such decision being made.

The first defendant's decision
29. On 15 October 2012, the first defendant informed the claimants' solicitors of the outcome of the September 2012 assessments and the October 2012 ECHR assessments.

THE LAW
The 1989 Act

30. The relevant powers and duties of the defendants in relation to the provision of support for children are set out in sections 17 and 20 of the 1989 Act. Section 17 (1)  provides that it is the general duty of every local authority:

"(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."

31. Section 17(3) states that any service provided by a local authority in the exercise of functions conferred on them by section 17 "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." By section 17(6), the services provided may include providing accommodation and giving assistance in kind or in cash. The relevant provisions of the 1989 Act are concerned with the provision by social services authorities of services for the purpose of safeguarding and promoting the welfare of children. They are not concerned with the allocation of long term housing, which is a matter for the relevant housing authority. The accommodation referred to in section 17(6) is temporary accommodation only.

32. In section 17(10), a child is defined as being "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, … ".

33. Paragraph 1 of Schedule 2 to the 1989 Act requires every local authority to take reasonable steps to identify the extent to which there are children in need within its area. Paragraph 3 of Schedule 2 provides that, where it appears to a local authority that a child within its area is in need, the authority may assess his/her needs for the purposes of the 1989 Act at the same time as any assessment of the child's needs is made under any other Act.

34. In the case of R v London Borough of Barnet ex parte G [2003] WLR 1194, the House of Lords held that there is a duty on a local authority (in its capacity as local social services authority) to take reasonable steps to assess, for the purposes of the 1989 Act, the needs of any child in its area who appears to be in need.  However, the Court said that section 17 did not impose a mandatory duty on a local authority to provide accommodation or any other service to meet the assessed needs of any individual child.

35. Until 15 April 2013, the procedures for carrying out an assessment under the 1989 Act were set out in the "Framework for the Assessment of Children in Need and their Families", which was guidance issued under the provisions of section 7 of the Local Authority Social Services Act 1970 and was to be followed unless there was good reason not to do so. That guidance has now been replaced by the guidance contained in a document entitled "Working Together to Safeguard Children".

The Nationality, Immigration and Asylum Act 2002
36. The Nationality, Immigration and Asylum Act (the 2002 Act), and its interplay with section 17 of the 1989 Act, are also relevant. Schedule 3 to the 2002 Act provides for the withholding and withdrawal of support and assistance for various classes of person. In summary, paragraphs 1 and 3 of Schedule 3 provide that an adult who is unlawfully present in the UK and who is not an asylum seeker is ineligible for support under section 17 of the 1989 Act  unless, and to the extent that, its provision is necessary in order to avoid a breach of his/her Convention rights. The burden of proof is on the person applying for support to show that such support is necessary in order to avoid a breach of Convention rights.

THE CLAIM FOR JUDICIAL REVIEW
37.  In their Amended Grounds for Judicial Review, the claimants challenged five decisions, namely:

(a) The decision of the first defendant (based on its September 2012 assessments) that the claimants were not children in need within the meaning of section 17 of the 1989 Act;

(b) The conclusion of the first defendant's October 2012 ECHR assessments;

(c) The decision of the second defendant not to assess the claimants' needs in accordance with section 17 of the  1989 Act  and the Framework for the Assessment of Children in Need and their Families;

(d) The decision of the second defendant not to carry out an ECHR Assessment in respect of the claimants;

(e) The decisions of both defendants not to provide accommodation and support, including financial support, to the first and second claimants (and by virtue of the young age of the first and second claimants, to their parents), in accordance with section 17 of the 1989 Act.

Ground (a) The first defendant's decision based on its September 2012 assessment
38. For the claimants, Mr Alexander Campbell submitted that the first defendant's September 2012 assessments were flawed to the point of being irrational and unlawful.

39. Mr Campbell contrasted the descriptions of the claimants contained in the second defendant's assessment of 22 December 2011 with the first defendant's September 2012 assessments.  In the former, the claimants were described as dirty, ill-clothed and hungry. Their parents were found to be unable to meet the claimants' basic needs, in particular their need for a stable home. In the first defendant's September 2012 assessments, however, the children were said to have been appropriately dressed, clean and well-nourished whenever they were seen and Mr Yongawo, who conducted the assessments, was satisfied that they were being appropriately cared for by their parents. He found that the children were not in need.

40. Mr Campbell suggested that the sole reason for the change in the children's circumstances between December 2011 and September 2012 was the accommodation and support with which they had been provided by the first defendant pursuant to the order of Lindblom J.  He argued that, but for that accommodation and support, the claimants' parents would not be able to provide properly for the claimants, who would then return to the position in which they were in December 2011, i.e. homeless and in need.  Mr Campbell submitted that Mr Yongawo had failed in the September 2012 assessments to take account of the position the claimants would be in if the current accommodation and support were to be withdrawn.  He argued that, if Mr Yongawo had done that, he must inevitably have concluded that, without the accommodation and support provided by the first defendants, the claimants would be "in need". As it was, Mr Campbell argued, the second defendant's assessment of December 2011 could not be reconciled with the first defendant's September 2012 assessments.

41. For the first defendant, Mr Harrop-Griffiths submitted that, given the information in Mr Yongawo's possession, there was nothing irrational about his conclusion, following the September 2012 assessments, that the claimants were not in need.  Plainly they were not in need at that time.  Whether or not they would be in need if the first defendant's support was withdrawn would depend on whether their parents were able to obtain from family members and friends the accommodation and financial support they needed, pending a decision by the UKBA in their case.  The claimants' parents were known to have family and friends in the UK who had supported them in the past and who might, if asked, be prepared to do so again.  They had not provided any information about any attempts they had made to obtain support from such people, nor had they provided any information which would have enabled Mr Yongawo to make his own enquiries to ascertain the position.

42. Mr Harrop-Griffiths relied on the decision of Leggatt J in MN and KN v London Borough of Hackney [2013] EWHC 1205 (Admin).  In that case, the claimant's parents were Jamaican nationals who had entered the UK illegally and had lived in the UK for several years without seeking any assistance from social services.  It appeared that they had lived with various relations or friends who had provided them with financial support.  The claimants' father had earned some money selling pirated DVDs in a street market.  In March 2011, the claimants' mother approached the defendant ("Hackney") saying that the family was about to become street homeless.  At that time they were staying with a friend but Hackney was told that they had been asked to leave in a few days' time and would then be homeless and destitute if Hackney did not provide them with accommodation and financial assistance.  Hackney carried out an assessment of need together with an ECHR assessment.  It concluded that the claimants were not children in need for the purposes of section 17 of the 1989 Act and that there would be no breach of articles 3 or 8 if support was refused.  The claimants commenced proceedings seeking judicial review of Hackney's decision to refuse accommodation and support and were granted interim relief pending the determination of the proceedings.

43. At the hearing of the claim for judicial review, Leggatt J found that the social worker who had carried out the assessment had not been prepared to accept that it was no longer possible for the family to live without support from public funds.  He had requested details of the family members and friends who had provided accommodation and support to the family during the years they had lived in the UK without support from public funds.  The claimants' parents had not been prepared to reveal the information.  In those circumstances, the social worker had not been satisfied that the family would be homeless or destitute in a short time as they claimed.

44. In MN and KN, Leggatt J noted that the reference in section 17 of the 1989 Act to children "in need" does not mean children who are objectively in need as decided by a court, but rather children whom the local authority has assessed as being in need by means of an evaluative judgment. It was, he said, for the relevant local authority to assess after a factual investigation whether a child in its area was "in need" and, if so, what range and level of services would be appropriate to his/her needs. That assessment would of course be subject to the control of the courts on the ordinary principles of judicial review. In support of his analysis, Leggatt J cited  the Supreme Court case of R(A) v Croydon London Borough Council [2009] 1WLR 2557, in particular  the judgment of Lady Hale at paragraph 26.

45. Leggatt J concluded that, since the assessments of the needs of MN and KN   did not conclude that MN and KN were "in need", Hackney did not have power under section 17 to provide any accommodation or any other assistance to the claimants or their parents.  He concluded that the claimants would only be able to challenge Hackney's decision to refuse to provide them with accommodation or other support if they were able to establish that Hackney had failed to carry out a proper investigation or that, even though a proper investigation was carried out, it had been irrational for Hackney not to decide that its powers under section 17 were engaged.  He found that there had been no failure properly to investigate and no irrationality in the decision that had been made.

46. Mr Harrop-Griffiths submitted that the circumstances of the present case were in many respects similar to those in MN and KN.  The claimants' parents had refused to provide information which was vital to establish "need".  Mr Yongawo was aware that the claimants had family members in the UK and they claimed to have a large network of friends.  Those people had supported them in the past.  Mr Harrop-Griffiths submitted that Mr Yongawo's decision that the claimants were not in need could not be characterised as so wrong as to render it irrational;  still less could it be characterised as  "unreasonableness verging on absurdity", as the test was expressed by Lord Brightman in Puhlofer v Hillingdon London Borough [1986] AC 485.

47. Mr Campbell argued that the facts of MN and KN were very different from those of the present case.  In MN and KN, the claimants had provided no details at all about their former life in the UK.  In the present case, the claimant's father had made two witness statements in the course of these proceedings in January and February 2012, explaining why the family circumstances had changed.  Mr Campbell submitted that, despite the claimant's parents' refusal to provide the information requested by Mr Yongawo, it was irrational and perverse of him to reach the conclusion he did.

Discussion and conclusions on Ground (a)
48. The position of the claimants' family is unfortunately not unusual.  There are many families in the UK in which the adults are illegal entrants or overstayers with outstanding immigration applications and are not entitled to work and have no recourse to public funds. Such families are effectively in limbo and fall to be supported financially either by family and friends inside or outside the UK or, failing that, by local authorities whilst the UKBA processes their applications.

49. There is no doubt that, on 19 December 2011, the claimants' basic needs were not being met.  It was for that reason that the family was provided with accommodation and support on the night of 19 December 2011.  However, what was not clear at that time was whether the claimants were in need because their parents were unable to provide for them or because they had chosen not to make use of the support which would otherwise have been forthcoming from family and friends.  The information given to Ms Conroy-Brown by the claimants' mother on 20 December 2011 (see paragraph 10 of this judgment) suggested the latter.  She reported that her brother was travelling south to help her and spoke about paying for that night's accommodation herself.  It was against that background that Ms Conroy-Brown told the family that the second defendant would not be offering them accommodation that night.  By the time the initial assessment was concluded on 22 December 2011, Ms Conroy-Brown had not seen the claimants for three days and had not spoken to either of their parents for two days.  The family had moved on.  She did not know, whether, as the claimants' mother had suggested might be the case, her family had provided them with funds. The initial plan she formulated included monitoring of the case to ascertain whether the claimants' parents could provide for them.

50. At the time of Mr Yongawo's assessments in September 2012, the children were not immediately in need, as they had been on 19 December 2011.  However, the question which underlay Ms Conroy-Brown's assessment remained the same, namely: were their parents able to obtain accommodation and/or financial assistance from members of their family and friends so as to provide for their own needs and those of the claimants?  It may be that, as the claimant's father states in his witness statements, those family and friends were unable and/or unwilling to assist.  However, since the claimant's parents refused to provide any details which would have enabled Mr Yongawo to contact them, it was impossible for him to ascertain whether that was in fact the case.  He cannot be criticised for failing to carry out a fuller investigation when the claimants' parents wholly failed to co-operate with his attempts to do so.  The problems faced by Mr Yongawo were very similar to those encountered by the social worker in MN and KN. Both he and Mr Yongawo were in effect prevented from carrying out a full investigation of the family's financial position because of the parents' refusal to provide the necessary information and, as a consequence, were not satisfied that the claimants would be in need if accommodation and financial support was not provided.

51. For the claimants it is said that Mr Yongawo should have taken the claimants' parents' assertion that no funds were available to them at face value.  He should also have taken account of the claimants' plight as it had been in December 2011.  It is suggested that no loving, caring parent such as the claimants' parents would, have allowed their children to live as they were living in December 2011 unless they had no financial support available to them. It is argued that Mr Yongawo should have recognised that and that it should have been obvious to him that any support the family had received in the past had been sporadic and had, by December 2011, ceased altogether.  However, as I have already observed, there was doubt even in December 2011 about whether the claimants' parents' lack of financial support was of their  own choosing.  Given their failure to co-operate with Mr Yongawo's enquiries, it is not in my view surprising that Mr Yongawo concluded that the claimants were not in need.  I do not consider that his conclusion – or his failure to find that the children were in need – could properly be characterised as irrational or "verging on absurdity". I therefore conclude that the first defendant acted lawfully in declining to accept that, as at September 2012, the claimants were in need. The claim for judicial review on this Ground must fail.

Ground (b) The conclusion of the first defendant's October 2012 ECHR assessments
52. The interplay between Schedule 3 to the 2002 Act and section 17 of the 1989 Act (see paragraph 36 of this judgment) was fully explored by the Court of Appeal in R (on the application of Clue) v Birmingham City Council [2011] WLR 99. At paragraphs 54 and 55, Dyson LJ (as he then was), giving the judgment of the Court, explained that, if an applicant seeking assistance would in general be ineligible for support under the terms of the Schedule (i.e. because he/she is unlawfully present in the UK and not an asylum-seeker), the local authority must nevertheless decide whether, and if so to what extent, it is necessary to exercise a power or perform a duty for the purpose of avoiding a breach of Convention rights. Where there is a range of different types of assistance available to the local authority which would avoid a breach of  Convention rights, the local authority should identify those types of assistance and then choose between them.

53. If the local authority considers that there are available to the applicant other sources of accommodation and support so that the withholding of assistance would not cause him/her to suffer from destitution amounting to a breach of Convention rights (typically article 3), that is the end of the matter. However, if it is satisfied that there are no other sources of support and assistance, it must then decide whether there is any impediment to the applicant returning to his/her country of origin. Where the only potential impediment is practical in nature (e.g. the applicant cannot afford to pay for his/her passage to the relevant country), it is open to the local authority to avoid a breach of Convention rights by, for example, funding the applicant's return.

54. However, Dyson LJ made clear (at paragraph 66) that, when faced with an application for assistance pending the determination of an arguable (i.e. not manifestly unfounded) application for leave to remain in the UK on Convention grounds, a local authority should not refuse assistance if the effect of that refusal would be to require the applicant to leave the UK and thus to forfeit the opportunity of succeeding in his/her application for leave to remain.

55. For the claimants, Mr Campbell submitted that the first defendant's October 2012 ECHR assessments of the claimants' family were irrational and unlawful in that they failed to reach any proper conclusion as to whether the Convention rights of the claimants and/or their parents would be infringed if they were required to return to Nigeria.

56. Mr Campbell referred to the purpose of the October 2012 ECHR assessments as set out at section 2b of the assessment form:

"The department [i.e. the Home Office] would want to establish whether there are any reasons for your refusal to return to your country of origin.  The local authority would also want to be certain that if you elect to return to Nigeria you will not be subjected to any inhuman treatment and that your family life will not be impinged upon."

He submitted that the October 2012 ECHR assessments did not in fact address those issues. In particular, the only reference to a possible breach of article 3 of the Convention if the family were to be returned to Nigeria was the observation that the family originated from a "safe country".   Section 3 of the assessment form, which invites the social worker completing the form to consider whether there would be a breach of article 3 or article 8 was not completed.  Mr Campbell argued that the October 2012 ECHR assessments also failed to take account of the legal consequences of the UKBA's agreement to reconsider the claimants' parents' applications for leave to remain in the UK as set out in Clue. There is complaint also that the assessment did not reach any proper conclusion as to whether refusal of support would render the claimants' family destitute so as to infringe their Convention rights.

57. Mr Harrop-Griffiths submitted that the complaints made by the claimants about the October 2012 ECHR assessments were misconceived. He argued that the assessments were carried out rationally and properly.  In October 2012, the first defendant and Mr Yongawo had not been aware that the UKBA had agreed to reconsider the claimants' parents' application for leave to remain.  Once the first defendant became aware of that, it accepted that the claimants' family had an extant immigration application which was currently being considered and that their application was not manifestly unfounded. Thus, there was no question of a possible return to Nigeria. The only issue was whether there were available to the family other sources of accommodation and support so that the withholding of assistance would not cause them to suffer from destitution amounting to a breach of their Convention rights. In accordance with the outcome of the September 2012 assessments, Mr Yongawo had concluded that other sources of accommodation and support were open to them so that, by implication, the withholding of assistance would not cause them destitution or a breach of their Convention rights.

Discussion and conclusions on Ground (b)
58. I accept that, if the circumstances had been otherwise, the claimants might have been able to argue successfully that Mr Yongawo had failed properly to address the issue of whether the family's Convention rights would be infringed by their return to Nigeria.  However, once it was known that the UKBA had agreed to reconsider their application for leave to remain in the UK, there could have been no question of the first defendant seeking to effect their return to Nigeria. Therefore, the question of whether the return of the claimant's family to Nigeria would constitute an infringement of their Convention rights became entirely academic.

59. Furthermore, whilst the assessments did not specifically state the fact, it is plain that Mr Yongawo concluded that the family had alternative means of support available to them and would not therefore be rendered destitute if assistance was refused. He reached that conclusion for the same reasons that he had concluded in the September 2012 assessments that the claimants were not "in need". Having reached the conclusion that they would not be rendered destitute if assistance was refused, it was plainly unnecessary for him to go on to consider the effects of destitution on their Convention rights.

60. Thus, for the same reasons that I gave in respect of Ground (a), I reject the claimants' claim for judicial review on Ground (b).

Ground (c)   The decision of the second defendant not to assess the claimants' needs in accordance with section 17 of the  1989 Act  and the Framework for the Assessment of Children in Need and their Families
61. There is nothing in this Ground for the simple reason that, on 19 December 2011, the second defendant recognised that the claimants might be in need and put in train an initial assessment.  Having formed the preliminary view that the children were in need, Ms Conroy-Brown arranged for them to be provided with accommodation and support.  She continued her enquiries but the family left the second defendant's area before the initial assessment was completed.  The assessment was conducted at speed and in somewhat adverse circumstances; in particular, because the school term had ended, there were difficulties contacting the first claimant's school and (latterly) the claimants' family.  However, there was nothing irrational or unlawful in its conclusions or the 'initial plan' that was formulated. Since the claimants did not return to the second defendant's area, the initial plan was never put into operation and the case was closed a week later.

62. The claimants' claim therefore fails on Ground (c).

Ground (d) The decision of the second defendant not to carry out an ECHR Assessment in respect of the claimants;
63. The claimants and their family were in the area of the second defendant for no more than about 24 hours from 19 to 20 December 2011.  Thereafter they returned to London and have remained there ever since.  It is difficult to see how the second defendant could have carried out an ECHR assessment and what purpose it would have served at that stage, when the claimants and their parents were being accommodated and supported by the first defendant who was carrying out its own section 17 and ECHR assessments.

64. The claimants' case on Ground (d) must fail.

Ground (e) The decisions of both defendants not to provide accommodation and support, including financial support, to the first and second claimants (and by virtue of the young age of the first and second claimants, to their parents), in accordance with section 17 of the 1989 Act

The first defendant
65. In relation to the first defendant, this Ground must presumably relate to events of 23 December 2011, the allegation being that the first defendant failed, immediately after receipt of the letter of claim, to assess the claimants pursuant to its duties under section 17 and thereafter failed to exercise its powers to provide accommodation and support for the family.

66. Mr Campbell submitted that the assertion made by Ms Khan in her email response to the claimants' solicitors to the effect that the family was "ordinarily resident" in the second defendant's area and that, in those circumstances, the first defendant had no responsibility for the claimants was wrong in law and had resulted in the first defendant misdirecting itself when reaching its decision not to provide accommodation and support for the claimants.  He relied on the decision of Mr Jack Beatson QC (as he then was), sitting as a Deputy High Court Judge, in R (on the application of Sandra Stewart) v The London Borough of Wandsworth, The London Borough of Hammersmith and Fulham and The London Borough of Lambeth [2001] EWHC Admin 709.  In that case, the claimant and her two children were homeless. She sought an assessment by the London Borough of Hammersmith ("Hammersmith") who had been accommodating the claimant and her family temporarily in a hostel after they had been evicted from their home in its area pursuant to its temporary duty to provide accommodation for a reasonable period in order to give a reasonable opportunity to secure accommodation. Hammersmith declined any responsibility to carry out a section 17 assessment and referred the claimant to the London Borough of Wandsworth ("Wandsworth") since it mistakenly believed that the hostel where the family was living was in Wandsworth's area. In fact, the hostel was in the area of the London Borough of Lambeth ("Lambeth") although the children went to school in Wandsworth's area. Wandsworth refused to carry out an assessment and referred the family back to Hammersmith on the ground that it had placed the family in the hostel. Lambeth also refused to carry out an assessment.

67. The judge in Stewart referred to the "unfortunate" manner in which the claimant and her children had been treated as a result of the disputes between the three local authorities. He held that the term, "within their area", means simply that a child is physically present in a local authority's area. There is no requirement for the child to be "ordinarily resident" in the area. He found that it was possible for a child to be physically present in the area of more than one local authority at the same time: for example, where the child spends part of the week with a parent in one local authority area and the rest of the week with the other parent in the area of a second local authority. In those circumstances, more than one local authority might have a duty to assess under section 17 of the 1989 Act. The judge observed that, in those circumstances, there was clearly no reason for more than one assessment to be carried out and there was a "manifest case" for co-operation between authorities pursuant to section 27 of the 1989 Act and for a sharing of the burden by the relevant local authorities. He found that both Wandsworth (because the children attended school in its area) and Lambeth (in whose area the children were living) had come under a duty under section 17 to assess the claimants' children's needs. He emphasised that the duty imposed by section 17 was only a duty to assess. He observed that, once an assessment had been carried out and the issue was which authority should provide the service(s) needed by the child, it might be relevant to consider in which area the need (as well as physical presence) arises.

68. In this case, the first defendant had limited time in which to act after it became aware of the letter of claim and the claimants' circumstances. The family had not approached the first defendant directly prior to that time and the first defendant had only the information contained in their solicitors' letter to go on. However, the first defendant accepted before me that "ordinary residence" is not the test for determining whether a local authority is under a duty to assess a child under the 1989 Act and that the first defendant should not have refused to assess the claimants on the ground that they were not "ordinarily resident" in its area. It follows therefore that the first defendant's refusal to take any action on the basis that the claimants were not "ordinarily resident" in its area was Wednesbury unreasonable.

69. It is probable that, if the first defendant had applied the correct test, it would have decided that an assessment was required under section 17. It is probable also that it would have concluded after that assessment that, in the short term at least, the claimants were in need and required accommodation and support. However, section 17 gives rise to no positive duty to provide accommodation and support.

70. It would have been desirable for the first defendant to have sought the co-operation of the second defendant, pursuant to section 27 of the 1989 Act and for the two authorities, between them, to have reached agreement as to who should make the necessary provision. However, there was no duty on the first defendant to do that and, in any event, given the short notice (and since the second defendant's legal department did not seem to have been aware of the family's dealings with its social services department), it is unlikely that any approach would have borne fruit. It appears unlikely also that an informal approach from the first defendant would have had a greater effect on the second defendant than the letter of claim sent by the claimants' solicitors.

71. In the event, of course, the first defendant was constrained by the order of Lindblom J to provide accommodation and support for the claimants and their parents on the night of 23 December 2011 and thereafter. Subsequently, it carried out assessments on the claimants as previously described. Consequently, even if there had been any unlawful failure to comply with a duty to provide accommodation and support, it would be entirely academic.

72. For those reasons, the claim for judicial review of the actions of the first defendant under this Ground must fail.

The second defendant
73. The second defendant provided accommodation and support for the family on the night of 19 December 2011, the day that assistance was first requested. It is not entirely clear whether the claimants' complaints under Ground (e) include a challenge to their decision not to accommodate the family on the night of 20 December 2011.

74. In the event that they do, it is in my view necessary to consider the circumstances in which accommodation and support was not provided on 20 December 2011.  Ms Conroy-Brown had been told that the family was expecting to obtain financial help from relatives; the claimants' mother had explained that she had been trying to manage without their assistance for the previous month.  She had spoken of paying for accommodation herself.  It was against that background that Ms Conroy-Brown informed her that the second defendant would not be providing accommodation for the family that night. I can see no reason to doubt that, if the claimants' mother had not told her on 20 December 2011 of the financial support she was hoping to get from members of her family that day, Ms Conroy-Brown would have arranged for accommodation for the family for that night also.  A later request from the claimants' solicitors was not pursued since the family had moved to London.  Nothing more was heard of them before the letter of claim was received on 23 December 2011. In those circumstances, I do not consider that the decision taken not to provide accommodate for the claimants on 20 December 2011 can properly be characterised as irrational or unlawful.

75. As to the events of 23 December 2011, it is very unfortunate that, having received the claimants' letter of claim, the second defendant did not immediately inform the claimants' solicitors and the first defendant of the assessment it had carried out and the outcome of that assessment. Instead the second defendant sent an email response to the letter of claim, asserting that the family was homeless, not in the second defendant's area, but in the first defendant's area and that the first defendant was therefore responsible for the provision of accommodation. Mr Campbell contended that the second defendant had misdirected itself as to the meaning of "within their area" and had failed to appreciate that, by virtue of the first claimant's attendance at school in Harlow, he at least might be "within their area" for the purpose of section 17.

76. There is no evidence about the steps, if any, taken by the second defendant's legal department to find out what the second defendant's social services department knew about the claimants' family. If enquiries had been made, they should have revealed that the second defendant had recently carried out an assessment on the claimants. The combination of that assessment and the fact that the claimants' family appeared to be street homeless in Newham would probably have led the second defendant to the conclusion on 23 December 2011 that, in the short term at least, the claimants were in need. However, its assessment had been carried out because the claimants and their parents had been sent to the second defendant's area in a taxi on 19 December 2013. By 23 December 2011, the family was no longer in the second defendant's area and, since it had not been possible to make any checks at the first claimant's school, the second defendant would not have been able to ascertain whether the first claimant was still attending school in Harlow as the letter of claim alleged. There was no suggestion that the second claimant had any physical presence in the second defendant's area. Section 17 gives rise to no positive duty to provide accommodation and support and, even if it did, it was plainly arguable that, since both claimants were in the first defendant's area at the time, the first defendant should accommodate them. These factors, coupled with the short notice, lead me to conclude that the second defendant's response to the letter of claim cannot be characterised as irrational or unlawful.

77. It would have been desirable for the second defendant to have sought the co-operation of the first defendant, pursuant to section 27 of the 1989 Act and for the two authorities, between them, to have reached agreement as to who should make the necessary provision. However, there was no duty on the second defendant to do that and, in any event, given the short notice, it is unlikely that any approach would have been successful. It seems unlikely that an informal approach from the second defendant would have had a greater effect on the first defendant than the letter of claim sent by the claimants' solicitors.

78. For those reasons, the claim for judicial review of the actions of the second defendant under this Ground must fail.