UKSC 8
On appeal from:  EWCA Civ 1445
R (on the application of A) (FC) (Appellant) v London Borough of Croydon (Respondents) and one other action
R (on the application of M) (FC) (Appellant) v London Borough of Lambeth (Respondents) and one other action
JUDGMENT GIVEN ON
26 November 2009
Heard on 20, 21, 22 & 23 July 2009
John Howell QC
(Instructed by Harter and Loveless Solicitors )
|Respondent (LB of Croydon)
Nigel Giffin QC
(Instructed by Democratic and Legal Services Division)
Timothy Straker QC
(Instructed by Bennett Wilkins Solicitors )
|Respondent (LB of Lambeth)
Charles Bear QC
(Instructed by Sternberg Reed )
|Intervener (Secretary of State for the Home Department)
Nathalie Lieven QC
Deok Joo Rhee
(Instructed by Treasury Solicitors)
|Intervener in writing (Children's Commissioner)
Richard Drabble QC
(Instructed by The Children's Legal Centre)
"(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of –
(a) there being no person who has parental responsibility for him;(b) his being lost or having been abandoned; or(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
By section 105(1) of the Act, a "'child' means . . . a person under the age of eighteen".
The importance of the issue
These two cases
(i) whether, as a matter of statutory construction, the duty imposed by section 20(1) is owed only to a person who appears to the local authority to be a child, so that the authority's decision can only be challenged on "Wednesbury" principles, or whether it is owed to any person who is in fact a child, so that the court may determine the issue on the balance of probabilities;
(ii) whether the issue "child or not" is a question of "precedent" or "jurisdictional" fact to be decided by a court on the balance of probabilities; and
(iii) whether section 20(1) gives rise to a "civil right" for the purpose of article 6(1) of the European Convention on Human Rights and if so whether the determination of age by social workers subject to judicial review on "Wednesbury" principles is sufficient to comply with the requirement that the matter be determined by a fair hearing before an independent and impartial tribunal.
The construction of section 20(1)
"For the purposes of this Part a child shall be taken to be 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, . . . "
Thus, argues Mr Charles Béar QC for Lambeth, it cannot have been the intention of Parliament that the sorts of professional value judgment involved in assessing whether a child is "in need" should be made by the court. "Child in need" is a composite term of art so that the same should apply to the assessment of age as well as need.
"If a local education authority gets the law right, or, as the lawyers would put it, directs itself correctly in law, the question of fact – ie has the student established the prescribed residence? – is for the authority, not the court, to decide. The merits of the application are for the local education authority subject only to judicial review to ensure that the authority has proceeded according to the law."
The section 20(1) issue
"In this Act –
"child" means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen."
The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.
The article 6(1) issue
"No specialist expertise was required to determine this issue, which is, under the new system, determined by a non-specialist tribunal. Nor, unlike the cases referred to [Bryan and Runa Begum], can the factual findings in the present case be said to be merely incidental to the reaching of broader judgments of policy or expediency which it was for the democratically accountable authority to take."
"In the modern, democratic state, many individuals are, for all or part of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems recognise that such individuals require a degree of certainty and security, and provide for benefits to be paid – subject to the fulfilment of the conditions of eligibility – as of right. Where an individual has an assertable right under domestic law to a welfare benefit, the importance of that interest should also be reflected by holding article 1 of Protocol No 1 to be applicable."
"The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question." [emphasis added]
Cases where the award of benefit is dependent upon a series of evaluative judgments as to whether the statutory criteria are satisfied and, if so, how the need for it as assessed ought to be met do not answer to that description.