Statutory provisions, guidance, and guiding authorities
- Section 17 of the Children Act 1989 Act provides that:
Provision of services for children in need, their families and others.
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-
(a) to safeguard and promote the welfare of children within their area who are in need;] nd
(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.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash.
- In R (J) v Worcestershire CC (EHRC intervening)  1 WLR 2825  EWCA Civ 1518, Lord Dyson MR stated that:
47 ... [T]he purpose of section 17 is to promote the welfare and best interests of children in need. Unless the language of the section compels a different interpretation, the court should construe it in a way which advances these aims.
- Section 11 of the Children Act 2004 provides that D “must make arrangements for ensuring that (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children”.
- In R (C) v Southwark LBC  HLR 36  EWCA Civ 707, Ryder LJ summarised the established law on the effect of s.17
It is settled law that the s.17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child's assessed need. The decision may be influenced by factors other than the individual child's welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council  UKHL 57;  2 A.C. 208 at  and ). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority's functions under s.17, it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child's needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child's best interests for the purposes of s.17 … in the context of the duty in s.11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children.
- In R (S and J) v LB of Hackney  EWHC 2692 (Admin), it was held that “close scrutiny” was required by the Court of an assessment that a child was not in need:
- A decision based on an assessment undertaken for the purposes of section 17 of the 1989 Act should identify how the local authority have had regard to the need to safeguard and promote the welfare of children both in relation to the child or children under consideration and collectively (R (C, T, M and U) v. LB of Southwark  EWCA Civ 707 at paragraph 15). N
54... the decision under review in this case is such as to require close scrutiny. However, such close scrutiny should not focus on particular words used by a social worker in conducting his or her analysis but on the substance of the assessment and the reasons given. As held at paragraph 12 in R (C) v. LB of Southwark, the court should focus on the question of whether the information gathered by the local authority is adequate for the purpose of performing its statutory duty, and in particular whether due regard has been had to ".. the dimensions of a child's best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children."
- Statutory guidance, Working together to safeguard children (March 2015), explains how local authorities should assess the needs of children (emphasis as in original):
- Assessment should be a dynamic process, which analyses and respondents to the changing nature and level of need and/or risk faced by the child. Any provision identified as being necessary through the assessment process should, if the local authority decides to provide such services, be provided without delay…
- Within one working day of a referral being received, a local authority social worker should make a decision about the type of response that is required and acknowledge receipt to the referrer.
- Whatever the timescale for assessment, where particular needs are identified at any stage of the assessment, social workers should not wait until the assessment reaches a conclusion before commissioning services to support the child and their family. In some cases the needs of the child will mean that a quick assessment will be required.
- R v Northavon District Council, Ex p Smith  2 AC 402, 406 holds that where a family with children are ejected from their accommodation, the children will be children in need. See similarly R (G) v LB of Barnet LBC  2 AC 208, para 19: “A child without accommodation is a child in need” and “[I]t cannot seriously be suggested that a child excluded from home who is “sofa surfing” ... is not in need”: R (G) v LB of Southwark  UKHL 26  1 WLR 1299, para 28(2).
- In R (Clue) v Birmingham CC, Shelter intervening  1 WLR 99  EWCA Civ 460, the Court of Appeal concluded that there would be circumstances where the section 17 power became a duty.
- In R (VC) v Newcastle City Council  2 All ER 227  EWHC 2673 (Admin), the Divisional Court held that
- The ... assessment must address not only the child's immediate, current circumstances but also any imminent changes in those circumstances.
- The third point emerges from R (B) v Barnet London Borough Council 12 CCLR 679, where the assessment contemplated the provision of some of the relevant services by an outside agency, in that case Barnardos. The assessment was struck down on the ground that it provided no realistic plan of action for meeting the child's assessed needs, one of the reasons being, at para 34, that the relevant Barnardos project was not yet open. Although this was treated as a reason why the assessment itself was unlawful, it seems to me to illustrate a wider point. If a local authority is to say that a child who would otherwise be, in the statutory sense, a child in need is not, because his relevant needs are being met by some third party, then the authority must demonstrate that the third party is actually able and willing (or if not willing can be compelled) to provide the relevant services."
- First, there is the contrast not merely between the level of support available under section 17 and section 4 but also between the very different purposes of the two statutory schemes. [The SSHD] accurately describes section 4 as providing "an austere regime, effectively of last resort, which is made available to failed asylum seekers to provide a minimum level of humanitarian support". Section 17 in contrast is capable of providing a significantly more advantageous source of support, its purpose being to promote the welfare and best interests of children in need. As she says, section 4 support is intended to provide the minimum support necessary to avoid breach of a person's Convention rights; section 17 support is to be provided by reference to the assessed needs of the child. In short, as she puts it, section 4 and section 17 establish two discrete regimes established for different purposes.
91... The local authority has a duty to assess the child. The result of that assessment is either a determination that the child is, indeed, "in need" or that he is not. In the latter event, absent a successful judicial review, cadit questio. If, on the other hand, the child is assessed as being "in need", then the local authority must decide whether or not to provide the assessed services and support. Can it decline to do so, on the basis that section 4 support is or may be available? Consistently with what I have already said it will not be able to justify the non-provision of assessed services and support under section 17 on the ground that section 4 support is available unless it can be shown, first, that the Secretary of State is actually able and willing (or if not willing can be compelled) to provide section 4 support, and, second, that section 4 support will suffice to meet the child's assessed needs. Given the residual nature of the Secretary of State's functions under section 4, the local authority may well have difficulty in establishing the first. Given the very significant difference between what is provided under section 4 and what is very likely to have been assessed as required for the purposes of section 17, the local authority is unlikely to be able to establish the second.
- It would in any event not be appropriate for D to deny assistance to these children simply on the basis that it may be able to establish that someone else is responsible or in the words of Baroness Hale at para 33 of G v Southwark (above) to “pass the buck”. In R (AM) v LB of Havering and LB of Tower Hamlets  EWHC 1004 (Admin)  PTSR 1242, Cobb J stated:
- As I have earlier indicated, numerous judges before me have called on local authorities to co-operate in their discharge of functions in respect of the vulnerable and needy; it appears that these exhortations continue in some quarters at least to fall on deaf ears. Judicial encouragement to good practice is underpinned by statutory expectation (see generally section 11 of the CA 2004, and specifically in relation to the requirement for prompt notification: section 208 and section 213 HA 1996). Regrettably the financial implications on receiving authorities of accepting responsibility for those with needs prove to be a significant deterrent to demonstrable good practice. Statutory duties have not been designed, or interpreted, to operate in insulated silos, nor should they be discharged in this way. Even though local authorities have wide powers to act in the best interests of children (see the Localism Act 2011, and the section 11 of the CA 2004), they sometimes fail to do so. This is one such lamentable example, with the effect that the children were pushed from 'pillar to post' (see (xvi) above, and R(G) v Southwark at [28(3)]). Indeed, the strategy which each authority adopted on 2 July 2014 (rehearsed extensively at  above) to avoid responsibility for AM and his family was shameful.
- In R (S) v LB Croydon  EWHC 265 (Admin), the Court held that local authorities had a power and duty to accommodate in a disputed age case where it had not yet determined whether the person was a child at all or was an adult pretending to be one. The Court held that it should follow guidance to accommodate based on the benefit of the doubt in light of the risks of not having provided accommodation if the person is subsequently found to be a child.
- Schedule 3 of the Nationality, Immigration and Asylum Act 2002 prohibits the provision of support under section 17 to certain categories subject to immigration control. It does not prevent support under s.17 to a person if to do so is "necessary for the purpose of avoiding a breach of a person's Convention rights" (paragraph 3). C do not fall within any of the categories excluded by Schedule 3 from s.17 support unless it will breach their human rights, so their needs must be assessed unfettered by Schedule 3. D must also, of course, ensure that it nevertheless acts compatibly with C’s human rights as required by s.6 of the Human Rights Act:
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
- Statutory provisions are to be interpreted in accordance with s. 3 of the HRA:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
- Section 6 of the HRA was relied upon by the House of Lords in R (Limbuela) v SSHD  UKHL 66  1 AC 396 to hold that the SSHD is under a duty to exercise his power to grant asylum support to prevent adult asylum seekers facing street homelessness, being a state of destitution engages Article 3. Generally, public authorities must apply the test identified in Munjaz v Merseycare NHS Trust  2 AC 148 to approach their responsibilities in a way that does not “involve a significant risk that the Article 3 rights of a significant number of applicants for ... support will be breached” (applied in connection with support in R (MK) v SSHD  EWHC 1896 (Admin)).
- The House of Lords’ decision in Limbuela established that even for single adults, the prospect of imminent street homelessness is liable to place a public authority under an article 3 obligation to prevent it (that being a case in which the SSHD) was prohibited by statute from acting unless the action was required to avoid a breach of article 3). The duty of protection triggered by an immediate risk of street homelessness in children is manifestly more acute than for adults. In E v Chief Constable of RUC  UKHL 66  1 AC 536, Baroness Hale observed that:
8... the special vulnerability of children is relevant in two ways. First, it is a factor in assessing whether the treatment to which they have been subjected reaches the “minimum level of severity”—that is, the high level of severity—needed to attract the protection of article 3....
9 The special vulnerability of children is also relevant to the scope of the obligations of the state to protect them from such treatment.