England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
THE DECISION TO REFUSE PERMISSION TO
CLAIM FOR JUDICIAL REVIEW WITH APPEAL
TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Friday, 8th March 2002

1. LORD JUSTICE KENNEDY: This is the judgment of the court. On 24th January 2002 Mr Justice Maurice Kay refused permission to seek judicial review in this case, and that is the decision which is before us. We have to decide whether or not there should now be a substantive judicial review in relation to this matter.
2. The matter came before the Court of Appeal first on paper. It was considered by Lord Justice Chadwick who was satisfied that the sensible course was to adjourn the application to come before a full court at an oral hearing. At that stage it was envisaged that if permission were granted the matter would be dealt with substantively thereafter. Unfortunately, the position has changed considerably.
3. The background is that the claimant became intentionally homeless and therefore was unable to seek the assistance of the local authority - in this case, Lambeth - under the provisions that apply to homeless persons. She however sought their assistance. At the time she sought their assistance the local authority, at the beginning of this year, was of the opinion that they were unable to assist her as they might previously have done under Section 17 of the Children Act 1989 because of the decision of the Court of Appeal in A [2001] EWCA (Civil) 1624, a decision given on 5th November 2001.
4. Nevertheless, perhaps as a matter of precaution, Mr Bielby, on behalf of the local authority, did see the claimant on 4th January 2002. He made certain inquiries of her, which are reflected in paragraphs 3 and 5 of his statement in the bundle before us. In particular, he explained to her that provision of any support would depend on available resources to the local authority, that the local authority could not provide accommodation, that it had certain duties in certain circumstances to accommodate children and he was thereby referring to Section 20 of the Children Act 1989 but not, as he saw it, any duty to accommodate families. He asked about her situation and discovered she had a close-knit family. He deliberately refrained from asking whether family members could provide accommodation because, he said, that question is invariably met with a negative answer even if the reality is that accommodation is likely to be provided. So, he asks questions around the topic. He said that enabled him to form a professional assessment of the likelihood that accommodation would be available within the family.
5. Mr Howell before us submits that insofar as this was a professional assessment - and it has now come to be regarded as such in the light of what later transpired - that was an inappropriate way in which to conclude the investigation so far as Mr Bielby was concerned, or at least arguably so, because it did not give the person in the position of this claimant the opportunity to explain the extent to which, if at all, her family, in reality, could support her.
6. Mr Bielby, having carried out that assessment on 4th January, met the claimant again on 10th January to give her his assessment. He said he went through the document with her on that occasion. He explained to her there were certain ways in which it might be possible for her to be able to obtain assistance from the Department of Social Security by way of a budgeting loan or a crisis loan, possibly coupled with a charitable grant. The claimant was not seen again thereafter.
7. What happened thereafter was that legally events moved on in that it was decided at first instance that the effect of the decision in A was perhaps not so widespread as was originally thought, in that there was another statutory power under Section 2 of the Local Government Act which might enable local authorities in certain circumstances to assist, to some extent at least, persons in the position of this claimant.
8. Against that background, her position was reconsidered by Mr Rapley very recently indeed. Mr Rapley is not directly employed by the local authority but he has considerable experience in local government. He explained his approach to the matter in his statement before us. As Mr Howell points out, he took as his starting point the information which had already been obtained by Mr Bielby in January. He was able to say what the general attitude of Lambeth was to persons in the position such as this claimant. He said:

"Lambeth ..... does not consider that Mrs Walker is in practice able to turn only to her family for accommodation (in the absence of the Social Services Department making provision). Budgeting loans and crisis loans can be requested from the DSS and can be combined with grants from charitable sources. I am informed by Mr Bielby that he specifically raised this subject with Mrs Walker."

9. As I have indicated, Mr Bielby had so done.
10. The weakness of the position there, as Mr Howell pointed out, is that in the interval between January and the time when Mr Rapley was making re-assessment, the claimant had been exploring the possibility of obtaining assistance from the sort of sources to which Mr Bielby directed her. Mr Rafley did not have before him - or at any rate did not refer to - the results of those attempts by this claimant to use those possible avenues of assistance. At the end of the day, Mr Howell contends that there has not been a sufficiently careful assessment which does justice to this claimant's position.
11. On behalf of the local authority, Mr Bear says, in effect, there is very little a local authority like this can do bearing in mind the stretched resources it has and its inability to help persons such as this claimant who fall within a very wide category of claimants, most of whom have to be rejected. That is right so far as it goes.
12. As soon as you concede that there are some people to whom assistance may be given it becomes necessary to look at each case, as Mr Howell submitted, on its individual merits. That, as it seems to us, is sufficient to demonstrate that at least this claimant has an arguable case in relation to the assessment which has been carried out in relation to her.
13. One way of dealing with this matter, that position having been reached, would be to send the matter back for substantive consideration before a single judge to decide what should happen next. The judge might come to the conclusion that the course would be to order the local authority to re-assess. That raises the difficulty with which we began this morning which is on what basis, because the contention on behalf of the claimant is that Section 2 of the Local Government Act, even if it is appropriate power for the local authority to have in mind, is not the only power. There is also power, despite what was said in A, to give consideration to the matter under Section 17 of the Children Act 1989.
14. The decision as to the legal framework in which consideration should be given to this application by the claimant would, if the claimant succeeds in relation to the subsequent aspect of the matter, be a very relevant consideration on which the local authority ought to have guidance before the matter is sent back for reconsideration by the authority.
15. In those circumstances, and bearing in mind the extent to which these matters have been already considered at appellate level, it seems to us the appropriate course is not only to give permission but to direct that the substantive hearing of the judicial review claim be by the Court of Appeal. There being power to make such an order, we exercise that power.
Order: Application allowed