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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W, R (on the application of) v London Borough of Lambeth [2002] EWCA Civ 613 (3rd May, 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/613.html
Cite as: [2002] 2 All ER 901, [2002] 2 FCR 289, [2002] 2 FLR 327, [2002] EWCA Civ 613
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W, R (on the application of) v London Borough of Lambeth [2002] EWCA Civ 613 (3rd May, 2002)
COURT OF APPEAL (CIVIL DIVISION)
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE LAWS
and
LORD JUSTICE KEENE
____________________
| The QUEEN On the application of W | Appellant | |
| - and - | ||
| MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH | Defendant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
James Goudie QC & Charles Béar (instructed by Sternberg, Read, Taylor, Gill) for the defendant
____________________
AS APPROVED BY THE COURT
Crown Copyright ©
- This is an application by the claimant (whom we will call "W"), a homeless person, for judicial review of decisions by the London Borough of Lambeth ("the council") which have the effect of denying her any assistance in meeting the housing needs of her two children. On 24th January 2002 Maurice Kay J refused her permission to apply for judicial review, but on 8th March another division of this court granted such permission and directed that the substantive hearing of this application be heard by this court as soon as possible after 22nd March. Since that time the council has made another decision denying her help. It was common ground that it is the lawfulness of this later decision which is now in issue in this case.
- W separated from her husband 18 months ago, and has the care of two children, who are now aged 15 and 4. She is unemployed and dependent on income support. On 19th February 2001 she was evicted from her home and applied to the council for housing assistance as a homeless person. The council, in its capacity as the local housing authority, provided the family with temporary accommodation pending its decision on this application. On 8th August, however, it notified her, following a review of an earlier decision to the same effect, that she had become intentionally homeless. She had been evicted due to rent arrears. Her present advisers maintain that there would have been grounds for challenging the council's decision in the county court if the necessary application had been made in time.
- The family was evicted from their temporary accommodation on 29th August, but were able to find a home on a temporary basis with W's niece. She was living with her two children in a two-bedroomed flat, but this could not be a long-term solution as she was expecting her third child, and in due course she required W and her children to leave. W was unable to obtain private sector accommodation because a minimum payment of £2,000 was usually required, which was quite beyond her means. A further problem was that appropriate private sector accommodation was in short supply. W went to consult a solicitor about her difficulties on 20th December. A full description of W’s history may be found in Appendix 1.
- In order to understand the subsequent history of events and the issues we have to decide in this case, it is necessary to say something about recent developments in the law. The council was both the local housing authority and the local social services authority in W's case. As the local housing authority there was little prospect of it being able to help her with accommodation once her application under Part VII of the Housing Act 1996 (“the 1996 Act”) had been rejected. It is obliged to comply with the provisions of Part VI of that Act in allocating accommodation, but although its allocation scheme has to be framed so as to secure that reasonable preference is given to families with dependent children, or households including someone with a particular need for settled accommodation on welfare grounds, there would be little prospect of W, as a new applicant, achieving any priority treatment once her application for such treatment as a homeless person was dismissed. Relevant statutory provisions are contained in sections 159(1) and (2), 161(1) and 167(1), (2) and (8) of the 1996 Act.
- In those circumstances W's solicitor considered that it would be more appropriate to invite the council as the local social services authority to consider her children's needs under its powers in Part III of the Children Act 1989 (“the 1989 Act”). This part of the Act is entitled "Local Authority Support for Children and Families". It has now been quite extensively amended and enlarged by the Carers and Disabled Children Act 2000 and the Child (Leaving Care) Act 2001. It is divided up by the following sub-headings:
- It is convenient to set out now the provisions of Part III which featured most prominently in the argument and in the cases we had to consider:
- In R(G) v Barnet LBC [2001] EWCA Civ 540, (2001) 4 CCLR 128 this court held that the duty under section 20 was a duty to provide accommodation for the child, not for the parent and the child. Section 23 set out the range of choice open to the relevant authority for the performance of this duty but it did not convert it into a duty to house both mother and child. Section 23(6) made no reference to the accommodation in which a child was to live with its mother and it did not import a duty to provide accommodation for the mother where she herself cannot provide it. Ward LJ said at [29] in this context:
- In R(A) v Lambeth LBC [2001] EWCA Civ 1624, (2001) 4 CCLR 486 another division of this court was concerned with the question whether section 17 of the 1989 Act might provide a route whereby a social services authority might provide accommodation for the family of a child in need. The appellant had three children, two of whom were autistic and required constant supervision. Her own health had started to deteriorate. The respondent authority assessed the children under section 17 as needing rehousing to appropriate accommodation because their current accommodation severely impaired their health and well-being. Although the family were on the waiting list for a transfer, there seemed little prospect of a transfer occurring.
- This court upheld the decision of Scott Baker J at the first instance (see the report at [2001] LGR 513) and unanimously rejected the appellant's contention that an assessment under section 17 gave rise to an enforceable duty to meet the need identified in the assessment. Its members were divided, however, on the question whether section 17 empowered the authority to provide accommodation in these circumstances. It will be remembered that sub-section (6) explains that the range of services appropriate to the needs of children in need in their area may include "giving assistance in kind or, in exceptional circumstances, in cash".
- Chadwick LJ gave the leading judgment for the majority. He was influenced by the consideration that the 1989 Act marked a change from the earlier statutory scheme for providing residential accommodation for people in need. Section 21 of the National Assistance Act 1948, as amended, had embraced both adults and children in need. Now Part III of the 1989 Act constituted the statutory vehicle for providing accommodation for people in need, so far as children were concerned. Chadwick LJ summarised the effect of sections 20-23 of that Act. He observed at [52] that a common feature of these provisions was that the obligation of a local authority to provide residential accommodation was confined to circumstances in which the child was not living in a family unit, or where his welfare required that he should not continue to live in a family unit.
- It was with those considerations in mind that he was led to the conclusion that section 17 of the Act was not itself directed to the provision of accommodation. He was not persuaded that Parliament intended that an authority could be required under that section to provide residential accommodation in circumstances in which they would not otherwise be required to do so, either under the subsequent provisions of Part III of the Act itself, or (more generally) under the provisions of the Housing Acts.
- He observed at [55] that in carrying out their functions under the housing legislation a local authority might be expected to have regard to the needs of families with children who were themselves "in need", but those needs could and should be taken into account in the framing of the housing authority's allocation scheme, in the formulation of its policy in relation to transfers, or in recognising a "priority need" under section 189(1)(c) of the 1996 Act. He said:
- He ended his judgment by saying that the appellant was seeking, in effect, to circumvent the housing transfer scheme by invoking the 1989 Act. He said that in his view this was not an available route to the desired goal of obtaining a transfer to alternative accommodation. It should be noted that the appellant in that case, who already had the benefit of council housing, was seeking a mandatory order requiring the council to provide an alternative suitable property from its own housing stock, to nominate the appellant and her family for rehousing by those associations which owed the council nomination rights, or to buy or lease suitable property for her for occupation with her family.
- Sir Philip Otton also declined to interpret section 17 so as to include the provision of accommodation within its scope. He believed that the 1989 Act should not be considered in isolation, but in the context of the whole of the social legislation which existed to protect all the vulnerable and disadvantaged members of society, and that the 1996 Act was another integral part of this all-embracing body of legislation. He said (at [46]):
- Laws LJ accepted (at [40]) that there was a respectable argument to the effect that section 17 was not concerned with the provision of accommodation at all. He noted, however, the defendant council's anxiety that there should not be an authoritative finding in this court to the effect that the provision of accommodation would be outwith its section 17 powers, because it might in some unforeseen set of circumstances wish to have recourse to this section, if necessary accommodation could not be provided under any of its other powers. He was influenced by the decision of this court in Attorney-General ex rel Tilley v Wandsworth Borough Council [1981] 1 WLR 845 (for which see paragraphs 47-49 below), and by two more recent decisions of judges at first instance, to conclude that section 17 empowered the provision of accommodation. He thought that this was "probably the better view, not least given the reference in section 17(6) to assistance in kind".
- The judgments in A were delivered on 5th November 2001. W first consulted her present solicitor on 20th December (see paragraph 3 above, and Appendix 1, para 104 below). When the council’s social worker, Mr Bielby, first assessed the children’s needs in January 2002 (see para 110 below), he did so in the belief, fostered by the majority decision in A, that the social services department had no power to assist with the accommodation needs of a family who had been found to be intentionally homeless.
- It is fair to say that the majority judgments in A caused a considerable stir among those concerned with the needs of children whose families (not only the “intentionally homeless”) have no home and do not qualify for assistance by a local authority housing department. We have summarised the evidence of Mr Flack, the senior partner in the firm of solicitors who act for W, in Appendix 2 of this judgment, together with the council’s response to his evidence. In short, Mr Flack says that in his experience where such a family is unable to stay with family or friends, the outcome can be catastrophic. He has known of families with young children under one year old who have been reduced to sleeping in a car, a park or a bus shelter when evicted from their temporary local authority accommodation.
- The effect of the decision in A was debated in each House of Parliament as early as 12th and 21st November 2001. We have been shown section 12 of the Homelessness Act 2002 (which was enacted on 26th February 2002 and is not yet in force). This represents an early statutory attempt to ameliorate the difficulties caused by the majority judgments in A. We have also been shown the terms of a suggested new clause in the Adoption and Children Bill, now currently before Parliament. A petition by the appellants in A for leave to appeal from this court is now before the House of Lords.
- However all this may be (and we are concerned with the law as it is, and not what it may one day become), a further element in the equation was introduced on 4th March 2002 by the judgment of Elias J in R(J) v Enfield LBC [2002] EWHC 432 (Admin). That judge was concerned with the plight of a Ghanaian overstayer and her two-year old child who would have nowhere to go when they had to leave the private accommodation the mother had been occupying for the last seven years. After setting out the history and the material provisions of section 17 of the 1989 Act, Elias J said at [18]:
- Elias J held that in the light of the majority decision in A the defendant council had no power under section 17 to provide J and her daughter with financial assistance to help them to procure a roof over their heads. He accepted at [44] a submission by the council that it was not open to him to ignore the clear rationale of the decision in A “even if the court were of the view that it does not sit happily with the earlier authority”. He was then confronted with an argument that this interpretation of section 17 was incompatible with the European Convention of Human Rights (“ECHR”) because it involved an unjustifiable violation of the Article 8(1) rights of the claimant and her daughter. Counsel for the Secretary of State, however, directed his attention to section 2 of the Local Government Act 2000 (“LGA 2000”). For reasons which he set out in paragraphs 50-59 of his judgment, Elias J concluded that that section was wide enough to enable the council to provide this family with the financial assistance it sought. He added, obiter, that but for the power which was capable of being exercised under that section he would have found that section 17 of the 1989 Act could, pursuant to section 3 of the Human Rights Act 1998 (“HRA 1998”), be construed so as to provide the assistance the claimant was seeking.
- Against this confused background the council wisely re-assessed the needs of W’s children in April 2002 on the supposition that it did have power to assist the family with their accommodation needs under both section 17 of the 1989 Act and under section 2 of the LGA 2000. Mr Goudie QC, who appeared for the council on this appeal, as he had on the earlier case of A, argued before us, however, that:
- Mr Howell QC, who appeared for W, contended on the other hand that:
- It might be thought that the council, which had fought to retain the full width of its section 17 powers in the case of A (see para 15 above), was now being inconsistent in its contention that it did not possess any power to help this family (whether under section 2 of the LGA 2000 or on any permissible interpretation of section 17). We have therefore, included in Appendix 3 to this judgment a description of the financial pressures which now beset it, with particular reference to the contemporary pressures on the families and children division of its social services department.
- This appendix is based on the evidence contained in two witness statements by Mark Rapley, a former manager in that department who is now employed by the council as an independent consultant. The accuracy of Mr Rapley’s evidence has been endorsed by the council’s present head of children’s services. In short, the council takes the view that child protection, and the need to ensure that the children in their care are appropriately looked after, are the core activities to which they must now give priority. The council has learned from experience that most potentially homeless families in W’s position find accommodation for themselves by one means or another, and the diversion of financial and staff resources to the accommodation needs of all these families can only serve to prejudice the performance of its principal obligations towards children in need in the borough.
- In these circumstances it is best to address Mr Howell’s contentions in the order set out in paragraph 22 above. If, as he urges us, it is open to us to revisit section 17 unshackled by binding authority, and to interpret it as giving the council the power to help families like W’s if it sees fit, then it will not be necessary to dwell for long on his other two arguments. It is first necessary, however, to say a little more about the circumstances in which A was argued in this court, and then to recall the principles on which the Court of Appeal is entitled to depart from one of its earlier decisions, which would ordinarily be regarded as having binding effect at this level of the court hierarchy.
- In A, the claimant appealed to this court against the decision of Scott Baker J (see paragraph 9 above) to the effect that there was no duty on the council, enforceable by the claimant, to accommodate her children in accordance with their special needs (as identified by their assessment under section 17). The claimant was seeking a mandatory order, compared by her advocate with the mandatory order upheld by this court in R v Wigan MBC ex p Tammadge (1997-8) 1 CCLR 581 in a case concerned with section 21 of the National Assistance Act 1948. This order would have the effect of requiring the council’s social services department to provide better accommodation for the family than the accommodation currently provided to them by the housing department.
- This court unanimously upheld Scott Baker J’s decision that there was no such enforceable duty. This ruling would have sufficed for the appeal to be decided in the council’s favour. Neither party originally sought to argue that the council had no power under section 17 to provide accommodation for families, or financial help towards their accommodation. There was no mention of the point in the notice of appeal or in the written skeleton arguments prepared for the court in advance of the hearing. Neither side in these circumstances had prepared any argument on the point. Chadwick LJ, however, took the point of his own motion for the first time at the hearing. It is hardly surprising in these unpropitious circumstances that we enjoyed the benefit of much fuller argument than was available to that court.
- It is impossible, however, to conclude with any certainty that their decision on this point did not form part of the decisive reasoning of the majority in A. Chadwick LJ made clear (see [2001] EWCA Civ 1624 at [57]) that it did for the purposes of his judgment. With Sir Philip Otton’s judgment the position is less clear, but since he felt bound to express his own opinion because of what he described as the significance divergence of view of the other two members of the court, it is probably safe to conclude that he, too, would regard his decision on this point as part of his decisive reasoning. Everything else being equal, therefore, we would be bound to follow the majority in A, even if the facts (and the relief sought) in that case are far removed from the facts (and the relief sought) in the present appeal.
- There have been two quite recent decisions of this court which define the very rare circumstances in which this court is at liberty to decline to follow one of its earlier decisions. In Rickards v Rickards [1990] Fam 194 the court was confronted by one of its earlier decisions to the effect that it had no jurisdiction to entertain an appeal from a decision by what we would now describe as a first appeal court refusing to extend the time for appealing to itself. The case was unusual, because if the court followed the earlier decision there would be no possibility of an appeal to the House of Lords, since it would not be deciding the appeal: it would be holding that it had no jurisdiction to hear it at all. Lord Donaldson MR emphasised the importance of the court following its own earlier decisions (and the limited exceptions to the general rule) in these terms at p 203C-E:
- The court considered that Rickards fell into the category of “rare and exceptional cases” for the reasons given by Lord Donaldson at p 204A-C. In the earlier case of Duke v Reliance Systems Ltd [1987] 1 QB 108 the same judge (with whom Ralph Gibson and Bingham LJJ agreed) had identified the occasions on which this court is entitled to apply the doctrine of per incuriam and decline to follow one of its earlier decisions, which would otherwise be binding. He said at p 113C-D:
- Mr Howell argued that the present case fell within the first category of cases identified by the court in Rickards, where the earlier decision was given in ignorance of some inconsistent statutory provision. He accepted that although Chadwick LJ and Sir Philip Otton did not refer to any caselaw in their judgments at all, all the relevant cases were cited to them, and it would be impossible for him to succeed below the level of the House of Lords on any argument founded on a contention that they were ignorant or forgetful of caselaw binding on them. On the other hand, he submitted that, no doubt because of the unsatisfactory way in which the critical point first arose in the course of the hearing, it was decided in ignorance of inconsistent statutory provisions.
- For this purpose he identified section 122 of the Immigration and Asylum Act 1999 (“IAA 1999”), section 17A of the 1989 Act itself (inserted as it was by section 7 of the Carers and Disabled Children Act 2000) and, to a lesser extent, section 22 of the Housing Act 1985 (see paragraph 59 below: reference to this section shows that the arrangements for the allocation of council housing in 1989 were far less detailed and comprehensive than those to which Chadwick LJ referred in paragraph 54 of his judgment in A).
- Mr Howell also bolstered his argument by reference to other provisions of the 1989 Act itself, such as sections 27 and 30, which show that a housing authority would be entitled to refuse a request for help from a social services authority if to comply with this request would affect its duty to allocate housing in accordance with its allocation scheme. These sections were, however, before the court in A, and we think that Mr Howell appreciated in the end that this court could not free itself from the shackles of A (supposing it desired to do so) by this route.
- It follows from all this that we would only be able to depart from A if we were satisfied that if the court in A had considered the statutory material identified in paragraph 32 above it must have reached a different decision.
- There are two other rules of statutory interpretation to which we must refer at this stage. The first arises in this way. There is no difficulty about section 17A of the 1989 Act (for its terms, see para 6 above), because it formed part of the Act which the court in A ought to have taken into account, if it had been aware of it, when it was interpreting section 17 in the context of Part III of the Act as a whole. Section 122 of the IAA 1999 (for its terms, see para 68 below) gives rise to different problems. In that section it is clear that Parliament shared the common belief as to the width of section 17 which existed until the judgments in A were given, as we explain in paragraph 69 below.
- The general rule about a “mistake by Parliament” is expressed in Statutory Interpretation by F A R Bennion (third edition, 1997) in these terms at p 542:
- The leading authority in this corner of the law appears in Lord Reid’s speech in Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd [1952] AC 401. In that case an Irish company with two branches in the United Kingdom complained that it had been subjected to double taxation. The House of Lords held on the proper construction of the relevant provisions of the Income Tax Act 1918 that the proportion of the taxes it paid in Eire in respect of profits of its trade arising in this country were not deductible in arriving at its profits assessable to United Kingdom excess profits tax. It was argued, however, that in enacting later legislation in 1939 and 1940 Parliament must have assumed that there was a pre-existing right to make such deductions on income tax principle, and that this consideration served to alter the meaning of the provisions in the 1918 Act.
- Lord Reid accepted at p 420 that the terms of the later legislation did indicate a Parliamentary belief that some such right already existed, even though that belief was erroneous. He continued:
- He went on to consider the argument that an enactment allowing the deduction ought to be implied, because without it there would be great injustice. He thought that the question was a difficult one, but he had come to the opinion that it did not, saying (at p 421):
- Lord Reid revisited this topic in West Midland Baptist Association v Birmingham Corporation [1970] AC 874, 898. That case turned on the proper interpretation of a provision of an Act passed in 1919, and the appellants argued that they were entitled to rely on the fact that in three recent statutes Parliament had legislated on the assumption that the meaning of the 1919 Act was that for which they contended. Lord Reid, applying IRC v Dowdall, said that the mere fact that an enactment showed that Parliament must have thought that the law was one thing did not preclude the courts from deciding that it was in fact something different. All that could be said in the present case was that the later enactments would have a narrower scope if the law was found to be that for which the respondents contended. But he added, obiter:
- In our judgment, the effect of these dicta is that we should not pay any particular attention to any difficulties that might be thrown up by section 122 of the IAA 1999 unless part of the scheme contained in that section is found to be unworkable if the interpretation of section 17 by the majority of this court in A is adopted. If it is indeed unworkable, we should be willing to look for an alternative meaning which would make it work. We will discuss this question in paragraphs 69 and 73 below.
- The other rule of statutory interpretation which we have mentioned is often known as “the Barras principle”. It is taken from the speech of Viscount Buckmaster in Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] 402, 411:
- Lord Russell of Killowen (at p 442) treated this “principle” as a presumption, and Lord Warrington of Clyffe (at p 438) adopted Viscount Buckmaster’s approach. Lord Blanesburgh (at pp 432-4) was more cautious, and Lord Macmillan (at p 446) refused to regard the rule as a “canon of construction of absolute obligation”. In this regard his approach was vindicated just over 50 years later by all the members of the House of Lords in R v Chard [1984] AC 279.
- In the present context, however, it would have been difficult to apply Viscount Buckmaster’s principle slavishly in any event. While it is true that in the cases to which we will now turn this court twice regarded the predecessor sections to section 17 of the 1989 Act as having a wider compass than that which found favour with the majority of this court in A, the language of the 1989 Act is not identical. It is sufficient, perhaps, to say that when the court has earlier favoured a wide interpretation of statutory language concerned with provision for children who are about to be made homeless, one should construe a later statute, into which the earlier provisions have been subsumed, with great care before concluding that a more restrictive approach should be adopted in the interpretative process.
- We turn then to the earlier caselaw to which we have just referred. One of the strands of earlier statute law which was developed in the rather wider provisions of Part III of the 1989 Act originated in section 1 of the Children and Young Persons Act 1963, which was later re-enacted in section 1 of the Child Care Act 1980. The relevant parts of these sections are in these terms (and we quote from the 1963 Act for this purpose):
- We will refer in paragraphs 61-63 below to the fate of these provisions when they were absorbed into the 1989 Act. At present we are concerned to consider how the courts interpreted these statutory provisions before the 1989 Act came into force. It will be noted that they imposed on local authorities certain duties to give assistance which might promote the welfare of children over and above the duties imposed on central government through the former statutory schemes for national assistance and supplementary benefit.
- In Attorney-General ex rel Tilley v Wandsworth Borough Council [1981] 1 WLR 854 a successful challenge was made to a resolution by the defendant council to the effect that assistance with alternative housing should not be provided under the 1963 Act to a family with young children who were found to be intentionally homeless. The council’s resolution permitted consideration to be given to the reception into care of the children on their own should their circumstances warrant it.
- Templeman LJ, with whom the two other members of the court agreed, reminded himself at p 857 that under the Children Act 1948 a child might be taken into care where it appeared to a local authority that his parents were prevented, through incapacity or any other circumstances, from providing for his proper accommodation, maintenance and upbringing. This step would involve the child being removed from his parents and put with foster parents or in a home. The 1963 Act now imposed on the council a duty to see, if possible, that the child could stay with his parents (or, perhaps, with some other relations), by giving such advice, guidance and assistance as the council might think appropriate.
- In argument, counsel had contended that the final words of section 1(1) (“provision for giving assistance in kind or, in exceptional circumstances, in cash”) were not apt to cover the provision of accommodation. Templeman LJ commented on this argument in these terms:
- The nature of a local authority’s duties or powers under these statutory provisions was revisited six years later in R v Tower Hamlets LBC ex p Monaf 19 HLR 577 Div Ct; 20 HLR 529 CA. This litigation was concerned with families from Bangladesh who were found to be intentionally homeless, and were then refused assistance under section 1 of the Child Care Act 1980, being the statute then in force. In the Divisional Court it was conceded that the local authority was not obliged to provide permanent housing under section 1 of the Act. Lloyd LJ commented at p 590:
- Stuart-Smith J, for his part, made it clear that he was troubled by the decision of this court in Tilley. Section 2(1)(b) of the 1980 Act gave a local authority the duty to receive a child into care if the child’s parents were prevented, for various specified reasons, from providing for his proper accommodation, maintenance and upbringing, and section 1(1) was concerned to diminish the need to receive children into care “under this Act”. In those circumstances Stuart-Smith J commented at pp 589-590:
- Having expressed these misgivings, he then loyally followed the decision in Tilley and concluded at p 593:
- On the appeal to this court Purchas LJ, who had the benefit of eight years’ experience in the Family Division, gave the judgment of a court which also included Mustill and Mann LJJ. The relevant part of his judgment is reported in 20 HLR 529, 547-553. He explained at p 547 that this appeared to have been the first occasion on which the interaction of the statutory duties and powers in relation to the care and welfare of children arising under the housing and the child care legislation had come under focus in such a dramatic way.
- So far as the legislative history of these provisions was concerned, he recalled how section 1 of the Children Act 1948 was the origin of the process later known as voluntary care. Section 1(3) of this Act gave strong support to the desirability of a child remaining with one or other or both of his parents (but that Act did not empower a local authority to give assistance, whether in cash, kind or otherwise, to bring about this happy outcome). Part III of the National Assistance Act 1948, on the other hand, imposed a duty on every local authority to provide residential accommodation for adults or children in need of care and attention, including temporary accommodation in cases of urgent need.
- Purchas LJ discussed the purpose of the 1963 Act by reference to a contemporary Home Office circular which “provided some background context”. After reciting five paragraphs of the circular in whole or in part, he said (at p 549):
- He then turned to the relationship between this new statutory provision and the homelessness legislation first introduced in 1977. He said that the question raised in the appeal was whether the Child Care Act 1980 created any obligation to provide accommodation for children beyond the obligation to secure accommodation imposed by what was then section 65(3)(a) of the Housing Act 1985. The Housing (Homeless Persons) Act 1977 (“the 1977 Act”) had been enacted to replace the limited duty of local social services authorities to provide temporary accommodation for those in urgent need imposed by section 21(1)(b) of the National Assistance Act 1948. He said that the 1977 Act imposed wider duties to provide, secure or help secure accommodation for homeless persons and those threatened with homelessness, and the relevant sections of the Housing Act 1985 were in substantially equivalent terms. For the first time these sections introduced as an element in their own right the presence of “dependent children who are residing with the homeless person …”. He noted, however, that no reference was made in the 1977 Act to any section of the Children Act 1948.
- These considerations led him to observe (at p 550) that there was no statutory history to make any connection between section 1 of the Child Care Act 1980 and the provision of the 1977 Act which was in force when the 1980 Act was enacted. He concluded in these circumstances that in 1980 Parliament intended to extend or qualify the duties imposed on a local authority under the 1977 homelessness legislation:
- It is unnecessary for present purposes to read into this judgment the remainder of Purchas LJ’s judgment in Monaf. After considering possible solutions which might keep a family home in place, he said at p 551 that ultimately what steps should be taken must be a decision taken by the social services department of the authority concerned in the unfettered exercise of their discretion under sections 1 and 2 of the 1980 Act. It is noteworthy, however, that he commended as “eminently sensible” an extract from a report of the director of social services of the respondent authority in that case which addressed the issues facing the officers of her authority when a family with dependent children were declared to be intentionally homeless. The author of this report said:
- That, then, was the state of the law when the Children Act 1989 was enacted. It should also be noted that in 1989 the arrangements for the allocation of housing to local authority tenants were less prescriptive than they later became. There was at that time no statutory requirement imposed on a local housing authority to allocate housing accommodation (however defined) only to certain categories of “qualifying persons”, or only in accordance with the authority’s own rules. Section 22 of the Housing Act 1985 imposed on a local housing authority a duty to secure that in the selection of their tenants a reasonable preference was given to four categories of persons, who included “persons having large families” and “[persons found to be homeless]”. The authority was also obliged (see section 106 of that Act) to maintain and publish rules for maintaining priority as between applicants in the allocation of its housing accommodation, and governing cases where secure tenants wished to move to other dwelling houses let under secure tenancies by that authority or another body. Section 22 of the 1985 Act did not, however, relate to nominations made by a local housing authority to accommodation let by others. Nor did section 106 (except, as we have observed, in the case of transfers).
- In Monaf this court explained in clear terms the effect of the separate and independent responsibilities of a local housing authority and a social services authority when questions arose about the housing of homeless families. It was the duty of the housing authority to provide temporary accommodation for these families while the merits of their case were being considered (Housing Act 1985 s 68(1)), and permanent accommodation if they were found eligible and in priority need, and the authority were not satisfied that the applicant became homeless intentionally (see s 65(2)). If they were so satisfied, they were under the limited obligation to provide short-term accommodation, advice and assistance described in section 65(3). The social services authority, on the other hand, had a power (but not a duty) to act as a safety net when the duty imposed on the housing authority came to an end.
- The Children Act 1989 appears, on the face of it, to have continued the practice of separate and independent existence which Purchas LJ noticed in the context of the interface between the earlier housing and social welfare legislation. No express reference is made to the provisions of the Housing Act 1985 either in Part III of the 1989 Act or in Schedule 2, which puts flesh on some of the provisions of Part III. It is well known that the philosophy of the Act was to promote the welfare of children, and we are bound to say that we would have found it surprising if Parliament had intended to alter the law set out in the judgment in Monaf so as to remove the possibility of the social services authority performing a safety net function if it felt able and if it saw fit to do so.
- Four things are at once apparent on a careful study of the provisions of Part III and Schedule 2 of the 1989 Act:
- The second of these propositions requires a little elaboration. In Tilley Templeman LJ fastened on the wide words “such … assistance as may promote the welfare of children by diminishing the need to receive [them] … into care” as encompassing a power to provide them with accommodation, even though the provision of accommodation would not naturally be considered to be “assistance in kind, or in exceptional circumstances, in cash”. The comparable language of the 1989 Act appears to be wider still. Local authorities were now to be under a general target duty to perform the obligations identified in section 17(1) by providing a range and level of services appropriate to the needs of children in their area who are in need. For the purpose of facilitating the performance of this general duty, section 17(2) provided that they were to have the specific duties and powers set out in Part I of Schedule 2. These include a duty (see Sch 2, para 7) to take reasonable steps designed to reduce the need to bring proceedings for care orders with respect to children in their area. If it is reasonable to secure that an intentionally homeless family is temporarily housed together (after the obligations of the housing authority are at an end) in order to avoid damage to the children if they have to be separated, then this would be a reasonable step for a local authority to take if it wishes to do so.
- Perusal of section 122 of the IAA 1999 shows that in that year Parliament believed that local social services authorities still possessed under the 1989 Act the “safety net” powers which existed under its predecessor legislation, as described by Purchas LJ in Monaf. Families who are intentionally homeless are not the only persons to whom a local housing authority owes no duty. Mr Howell provided us with a helpful note identifying the people who are not eligible for assistance at all under what are now the homelessness provisions contained in Part VII of the Housing Act 1996. Such people fall into two categories: those who are subject to immigration control under the Asylum and Immigration Act 1996 (unless they fall into a prescribed class) (see section 185(2) of that Act), and other persons provided for in regulations who are to be treated for this purpose as persons from abroad who are ineligible for housing assistance (see section 185(3) of that Act and regulation 4 of the Homelessness (England) Regulations 2000).
- After describing the effect of relevant provisions of recent immigration and/or asylum legislation, and regulations 2, 3 and 4 of the homelessness regulations, Mr Howell concluded, and we accept, that:
- Part VI of the IAA 1999 introduced an entirely new statutory scheme of support for asylum seekers. The essence of this scheme was that a “person subject to immigration control” was now to be excluded from mainstream social security, housing and other assistance. Instead, an alternative system of support was to be provided by the Secretary of State, either directly or through arrangements with local authorities and others. The details of the scheme do not matter. Some of the provisions of sections 95 and 122 are all that need to be considered for present purposes.
- The broad effect of section 95 is that the Secretary of State is empowered to provide support, or arrange for the provision of support, for asylum-seekers or dependants of asylum-seekers who appear to him to be destitute or likely to become destitute within a prescribed period (section 95(1)). For this purpose, a person is destitute if he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met) (section 95(3)(a)).
- Section 122 is entitled “Support for children”. It needs to be read in full:
- The effect of this section is that when either of the conditions set out in sub-section (5) are fulfilled, a local authority in England and Wales is not permitted to provide assistance under section 17 of the 1989 Act in respect of a dependant under the age of 18 or any member of his family. If, on the other hand, accommodation provided by the Secretary of State in the discharge of his duty under sub-section (3) has been withdrawn, the local authority within whose area the withdrawn accommodation was provided, is to have power under section 17 (not section 20) of the 1989 Act to provide assistance in respect of the child concerned. This assistance is described in sub-section (7)(a) as “local authority support”. Given that only section 17 is mentioned, it appears to us inconceivable that Parliament should have thought that the support which the local authority could provide in those circumstances should fall short of the provision of accommodation for the child and such members of his family as seemed appropriate. If Parliament had intended to separate such children from their parents by insisting that accommodation could only be provided by a local authority for the children under section 20, it could easily have said so.
- The following year Parliament again legislated on the basis of the common understanding of the meaning and effect of section 17 of the 1989 Act, in relation to the ability of social service departments to help homeless families with dependent children to acquire accommodation without breaking up the family in circumstances where the relevant housing authority had no duty or power to assist. This was the occasion when amendments were made to the 1989 Act by section 7 of the Carers and Disabled Children Act by the insertion of sections 17A and 17B. Section 17A enables a local authority to make direct payments to the person who has parental responsibility for a disabled child, in the place of services provided under the 1989 Act. Its terms, so far as material, are set out in paragraph 6 above.
- The Disabled Children (Direct Payments) Enabling Regulations 2001, made under the powers created by section 17A(4), now specify the maximum periods of residential accommodation which may be secured by means of direct payment to a person with parental responsibility for a disabled child (or to the child itself, if aged 16 or 17), namely periods of 28 days at a time, and not more than 120 days in total in any period of 12 months.
- These provisions, which formed part of the statutory scheme of the 1989 Act at the time A was decided by this court, make no sense at all if the “services which the local authority would otherwise have provided” “in the exercise of functions conferred on them by section 17” (see the language of section 17A(1)) could not as a matter of law include the provision of residential accommodation.
- In our judgment, if the court in A had had its attention drawn to the provisions of section 122 of the IAA 1999 and sections 17A of the 1989 Act, and had appreciated that the housing allocation arrangements in 1989 were not as detailed and comprehensive as they later became, it must have decided that case differently. It must have realised that Parliament did not intend the assistance a local authority had power to make under Part III should be divided into watertight compartments, as suggested in the judgment of Chadwick LJ in A. The later statutory provisions would be quite unworkable if this were the case. If section 17 is interpreted in the same way as its predecessors (as explained in Tilley and Monaf) these difficulties fall away.
- In these circumstances it is not necessary to say very much about the decision of Elias J in J (see paras 19-20 above) or to seek some other way of interpreting section 17 of the 1989 Act with the benefit of section 3(1) of the HRA 1998. In deference to Mr Goudie’s arguments, however, we must deal with one argument he raised. Part I of the LGA 2000 is principally concerned with the “community strategy” every local authority must now prepare (see section 4(1)) for promoting or improving, among other things, the economic or social well-being of their area. They are given power by section 2(1) to do anything which they consider is likely to achieve either of these objects, and these powers include power to give financial assistance to any person or to provide accommodation to any person (see section 2(4)(b) and (f)).
- Because of the view we take of the meaning of section 17 of the 1989 Act it is unnecessary for us to consider, as Elias J felt obliged to, the appropriateness of section 2 as a vehicle for the powers W seeks to invoke, particularly where a local authority like Lambeth has not yet finalised their community strategy. Mr Goudie argued, however, that the power under section 2(1) would not be available to his clients because they would be unable to provide accommodation to W and her family because of the “prohibition, restriction or limitation on their powers” (see section 3(1)), which is contained in sections 190(3) and 185 of the Housing Act 1996. The language of those provisions is, however, strikingly different from the language of section 122(5) of the IAA 1999 (see para 68 above). Section 190(3), for example, merely provides that a local housing authority has a more limited duty in cases where an applicant is not found to have a priority need. It does not constitute a prohibition, restriction or limitation on their powers. In any event, even if a local housing authority’s powers were indeed limited in the ways suggested by Mr Goudie, these provisions say nothing about the powers of social service authorities, and we can see nothing in section 3(1) to preclude a social service authority from providing financial help, or temporary accommodation, to the family of a child in need if they think fit.
- Since we have held that section 17 of the 1989 Act does give the council the power to help W and their family if it sees fit to use it, we turn finally to the council’s decision not to provide such help. This is now to be found in the assessment of each child which was conducted by Mr Bielby and counter-signed by his manager on 9th April 2002. Except that the descriptions of the children’s development needs are different, the two assessments are in identical terms. Much of the family history recorded in these assessments is set out in Appendix 1 to this judgment, and we will not repeat it here.
- Mr Bielby describes how in his first assessment, carried out three months earlier, he had formed the view that W would have to call on her family and friends to support her in providing temporary accommodation whilst she sought alternative accommodation. Because she said she had a very close supportive family and friends, Mr Bielby thought this was not an unreasonable suggestion, although he did not put it to her directly.
- During the new assessment process, Mr Bielby first ascertained W’s present circumstances, and then asked her what she would do if social services did not provide her with a deposit for a flat. She replied that she had not really thought about this. She gave a similar answer when she was asked what she would do if she were to lose her current bed and breakfast accommodation. She then described why her family could not help (a matter which her mother also confirmed to Mr Bielby direct), and how the Social Fund had been unable to help her with a budgeting loan. Mr Bielby’s assessment continued in these terms:
- He then identified the children’s only need as being a need for accommodation. This apart, they were very well cared for and appeared to be developing appropriately for their ages. Accommodation, he said, was dealt with under section 20 of the 1989 Act. In accordance with good practice under that Act it would be appropriate for the local authority to explore placing them with extended family members who might be able to provide accommodation for them as a short term measure, whilst their mother sought alternative accommodation. He concluded that there was provision within the 1989 Act under section 20 to assist these children should the need arise.
- Because W had not really thought about what would happen if the council did not help, Mr Bielby said that this implied that the likelihood of her children and her being on the streets would not occur. He expected that her family would assist, as they had done so in the past, not necessarily providing for them as a family unit together. He believed, controversially, that it was reasonable that W’s two children should take precedence, as a temporary arrangement, over her mother’s two adult sons in her mother’ home.
- He ended his assessment by saying that it was reasonable for Lambeth not to assist W and her children for these reasons:
- After these assessments were disclosed, W and her mother made further statements to the court. It appears that Mr Bielby may have misunderstood the position at her mother’s home, where one of her adult sons already provides a home for his two children on a fairly regular basis, and the other is a deaf mute who has always lived with his mother, on whom he relies heavily to communicate with the outside world. It also appears that there may have been a misunderstanding when W admittedly gave her answer “I have not really thought about it” in reply to one of Mr Bielby’s questions. W is very concerned that her children’s welfare would suffer if they were placed in care away from her family (who cannot help) while she locates suitable accommodation, because they have never lived anywhere without her and they are a very close family. She does not believe that any such measure would be only short term, because she thinks that even if she did obtain a job immediately, it would take her at least 12 months to save £2,000, the sum she would need in order to secure private accommodation. It also appears that she would challenge Mr Bielby’s account of the reasons for her original homelessness, even though she is out of time for appealing.
- Even allowing all these matters in W’s favour – and the council will no doubt reconsider them all carefully when this judgment is delivered – there are no sufficient grounds for this court to interfere with the council’s decision. Mr Howell did not seek to reopen the argument fought and lost in A last year. He accepted that the council had no duty to help W and her children – and in this case he did not have a favourable assessment to support such an argument. It is true that section 17 imposes on a council what has been called a target duty, but in relation to individual children it only has a power, and it has given intelligible and adequate reasons why it is not willing to exercise its power in this case, given all the other pressures on its resources. It is understandable, in the light of the evidence it has furnished, why it is reluctant to continue a “safety net” policy in respect of all families who cannot receive Part VII help and who may, in theory at least, one day be on the streets. Experience has shown, it says, that in practice these families do not subsequently present themselves as needing section 20 help. This judgment has shown that in an extreme case, where all else has failed, the council does have power to help under section 17, but it is entitled, if it sees fit, to reserve this power to cope with extreme cases, which W’s has not yet become.
- When we asked Mr Goudie whether, if his submissions were correct, his clients’ social services department had no power to help a mother in W’s position to find accommodation with her child even though it was clear that that separation would represent a catastrophe for the particular child, he was constrained to say that this would indeed be the position. The council’s children and families division will no doubt be pleased to know that his submissions were not correct, and that it does indeed have the requisite power. How and when it exercises it is in the first place, at any rate, a matter for it to decide.
- We do not consider that the ECHR Article 8(1) rights of W and her two children affect the position. It is well recognised now that that article does not afford a right to a home, but only a right to respect for a home.
- In the provision of resources for accommodation at public expense a modern state, and a modern local authority, is subject to many competing pressures. All the vulnerable children for whom Lambeth has recently been found to have made inadequate provision (see Appendix 3, para 126 below) have a right to respect for their home and their private and family life. Although Article 8 imposes positive obligations on public authorities, “the economic well-being of the country”, “the protection of health or morals” and “the protection of the rights and freedoms of others” are values which Article 8(2) entitles Lambeth (and the government) to take into account when deciding how public resources should be allocated in a situation like the one with which this case is concerned.
- For these reasons, while we would hope that Lambeth’s children and families division will reconsider the position of W and her family carefully in the light of the facts set out in this judgment, we would refuse to quash the assessments made by Lambeth on 9th April 2002. Unless agreement can be reached we will hear counsel as to the form of order we should make when this judgment is handed down.
- W came from Barbados to live in this country 30 years ago when she was nine years old. Her father died earlier this year. Her mother lives with her stepfather and two of her grown-up brothers. In all, she had five brothers, one sister and a stepsister. We will refer to the brothers not by name but as brothers 1-5, as the case may be.
- Her son M was born in January 1987. W says that his father is now unemployed, and M has had no contact with his father for a while. In November 1990 W obtained an assured tenancy of a flat in her own name from a housing association. It appears that until C’s father came on the scene there were no significant problems with the rent. In 1996 she obtained a budgeting loan from the Department of Social Security (DSS). Nearly four hundred pounds are still outstanding on this loan, and this sum is being paid off slowly by deductions from her benefits.
- Her daughter C was born in May 1998, and she married C’s father later that year. It appears to have been an unhappy marriage, although W was later to tell a solicitor that her husband was never violent to her while she was living with him. At the end of September 2000, however, he assaulted her stepfather, and he also threatened to stab her. She was so frightened that she left home with the children, and her husband changed the locks. In due course she consulted a solicitor who managed to persuade her husband to move out without the necessity for court proceedings. She then went back to her home with the children just before Christmas 2000.
- Unhappily this period of cohabitation, followed by the period when she was away from her home, wreaked havoc with her rent account. It appears that as early as September 1998 a council housing officer gave her advice about clearing the arrears that had accrued, and various letters were then sent to her warning her of the consequences of not paying the rent. At some stage her landlords obtained a suspended possession order.
- Her plight was aggravated, it is said, by failings on the part of the company employed by Lambeth to handle housing benefit assessments. Between 1998 and the end of 1999 her rent arrears increased from £78 to over £2,500. At the end of this period she was paid £920 housing benefit. In January 2000 she had to make a new claim for housing benefit. Although she seems to have lodged the necessary forms on 11th January, and in May the housing benefits office undertook to “action” her claim as soon as possible, she had not received an assessment or any payment of housing benefit by the time she was evicted in February 2001.
- Although the details of the history are not completely clear from the papers, it appears that although she had a two-year old child W was in employment during 2000, earning a net monthly salary of £700. In September 2000 she succeeded in staving off the execution of a warrant for possession by agreeing to pay the arrears by agreed monthly instalments, and she set up a standing order with her bank for this purpose. Payments under this standing order were duly made in September and October 2000, and in November 2000 the court made an order suspending the execution of the warrant provided that she paid the current rent and £22 per month off the arrears.
- She was unable to make these payments. Everything was by now too much for her. She had had to flee from her home, and she was worrying about how to return. Her housing benefit still had not been assessed for the year 2000, and in any event it did not cover the whole amount of the rent. She became depressed, and was unable to resume her job. Her employers eventually terminated her services in March 2001.
- By the time the warrant for possession was executed in February 2001, the arrears had spiralled to £4,400. Once she was evicted, she went to the Lambeth Homeless Persons Unit. They provided the family with temporary accommodation in a hostel while they processed her application under Part VII of the 1996 Act.
- On 4th April 2001 a Lambeth housing officer dismissed her application on the grounds that she was intentionally homeless. Reference was made to the long history of arrears on her rent account, and the advice she had received from time to time about the consequences of non-payment. In these circumstances, it was said, non-payment of rent should be regarded as an intentional act. An officer at the housing department advised her to contact the social services department for help, and was very surprised to be later told that when W followed her advice, a receptionist at the social services department told her that there was nothing they could do to help.
- She received help from the Brixton Advice Centre, however, and the family’s temporary accommodation was continued while a review of the original decision was being carried out. The centre observed to Lambeth that there had been little or no arrears of rent until September 1998, and that the problems had begun with her marriage to her violent and abusive husband. These representations were supported by a letter from her general practitioner, who had treated her for her recent depression.
- On 6th August 2001 the reviewing officer confirmed the original decision. He produced figures which purported to show that W had a net monthly income of £1,180 and outgoings of £730. He set out the history of the arrears, and said that she was in employment, earning enough to pay the rent, but did not do so. There had been no diagnosis of clinical depression. A solicitor advised her that she did not have a strong enough case to appeal to the county court against this decision.
- When she received the decision, she was again advised by the housing department to go to the social services department, where a receptionist again told her that there was nothing they could do for her. It was her fault she had lost her home, and her children were not at risk. She therefore faced eviction from the hostel, and had nowhere to go.
- None of her immediate family could help her. Brother 1 lived with his girlfriend in his girlfriend’s mother’s home. He had a job as a courier. They were trying to find accommodation themselves, and had no resources to help. Brother 2 lived with his girlfriend and four children in a two-bedroomed property. He was unemployed and they had no resources. Brother 5 lived in Wales and was out of touch with her. Her older sister lived in temporary accommodation herself. Her stepsister, who was younger than her, was unemployed and lived with her mother in Northampton.
- Her mother and stepfather were living with Brothers 3 and 4 in a 3-bedroomed property. He 60-year old mother was disabled and could not work. She had no savings. Her stepfather had a job as a security guard, but any spare money went to help her mother, who received disability benefit. Brother 3 was at one time unemployed. He then got a job at a low wage. He had two children of his own. They came to stay with him, sleeping in the same bed, during most weekends and the school holidays, because their mother was not available to look after them all the time. He had nowhere else to live. Brother 4 is unemployed and a deaf mute. He receives income support and disability benefit. He has always lived with his mother, and is dependent on her. She would never ask him to leave.
- The attitude of W’s mother in these circumstances has always been that she is able to provide emotional support for her daughter and her two children, and that if she could have helped with accommodation, she would have. As it is, however desperate the situation, she is quite unable to help. She has high blood pressure and has difficulty in coping with M for any length of time. She can only look after C for a few hours at a time.
- The only member of her family who was able to help W with accommodation when she was evicted in August 2001 was her niece. She was an unemployed single mother, living with children aged 2 and 1 in a two-bedroomed flat. She allowed W and her children to occupy the other room in her flat for a short while, but the flat was severely overcrowded. In October she insisted that they should leave. W went to her mother, who told her that if the worst came to the worst she could stay with her for one or two nights, but no longer. When she returned to her niece’s home, she found that they were locked out. She had to spend that night sleeping in her car with the children.
- The next day she went to the housing department and the social services department who were both unable to help. In those circumstances her niece allowed them to return, but in December she said that she was expecting another baby shortly and that they could not possibly stay with her after the baby was born. It was at that juncture that W obtained an appointment with her present solicitors.
- She has described in graphic detail the herculean efforts she has made to find accommodation for herself. Most of the many agencies she approached told her that their clients would not accept tenants on housing benefit. Those private landlords who did not maintain this policy required a deposit of £1,000 and the monthly rent of £1,000 in advance, making £2,000 in all. The DSS refused to give her a crisis loan. It also refused to make a budgeting loan because the 1996 loan was not yet paid off. One agency was willing to help her with an advance of up to £500 for the deposit. Their representative told her solicitor that in the past he would have expected the social services department to complement their help, so that a homeless family could find a home. In short, she has been quite unable to find accommodation anywhere, as a single homeless mother with two dependent children, living on income support.
- When C was younger, W said that it was almost impossible for her to find work that would pay her a high enough wage to be able to finance child care for her children whilst she was at work. After she lost her job in March 2001, she tried to find a job. In the next five months she had four interviews and one final interview, but she still did not get a job. She thinks that if she did find work, her net monthly salary would be £700. She believes that because of her other debts it would then take her a year to save enough to pay a deposit of £2,000.
- Her present solicitor, who has great experience in homelessness cases, believes that there were so many inaccuracies about the review decision on her Part VII application that it could have been challenged successfully in the county court. Her husband’s marital status was wrong. His alleged job was wrong. The figure for rent was wrong. The figure for food bills was wrong. There were a number of other monthly outgoings, amounting to nearly £600, which were not recorded. And no account was taken of the fact that her plight was accentuated by the failure to assess or pay her entitlement to housing benefit from January 2000 onwards. However, although W had been trying to secure this firm’s services from June 2001 onwards, because they have a fine reputation in this field, they had been unable to take on any new clients when she first approached them, and by the time she first consulted them in December 2001, the 3-week period allowed for a county court appeal under section 204(2) of the 1996 Act had long since expired.
- Since January of this year W and her children have been living in bed and breakfast accommodation paid for by Lambeth at a cost of £455 per week, pursuant to orders for temporary accommodation made by the court in these proceedings. W alleged that on 21st January 2001, the first day that one of these orders took effect, Lambeth were so slow in complying with it that they did not actually tell her where to go until after midnight that night. She was sitting all evening in a friend’s house. If help had not arrived, she would have had to spend another night in her car with the children, because her friend would not let them stay. There was simply no room. Lambeth disputed that they took so long to tell her where she was being accommodated.
- There are no kitchen facilities or cooking facilities available for them to use where they are now living, so that she has been taking the children to her mother nearly every day to cook food for them and eat it there. The position is very unsatisfactory.
- It was against this background that Mr Bielby, a social worker employed the council defendants conducted an assessment of W’s children’s needs in January 2002. It is unnecessary to refer in any detail to this assessment, because following criticism of the council’s handling of the case Mr Bielby conducted a further assessment of the children shortly before this hearing started. It is sufficient to say that he found nothing exceptional in the case. He explained to her that the council’s social services department did not provide accommodation for families.
- This refusal of assistance led to the initiation of these proceedings on 18th January 2002. Maurice Kay J refused permission to apply for judicial review on the ground that he was bound by the decision of this court in A. In due course Mr Bielby made the further assessments which are now at the centre of this case. Their effect is set out in paragraphs 78-81 above.
- W’s solicitor Mr Flack (see para 16 above) has specialised in housing law since 1994, and has considerable practical experience of the role played by the social services departments in assisting homeless families who find themselves outside the protection of what is now Part VII of the 1996 Act. In paragraphs 64-65 above the different types of family who may be affected in this way are identified. Mr Flack maintains that the shortage of housing stock available to housing authorities, coupled with different forms of financial constraint, have required those authorities to impose stringent rationing on the provision of longer term accommodation, and to make increasingly tough decisions in Part VII cases.
- In his view, the complexity of the law under Part VII, the strict time limit for appealing to the county court, and the increasing scarcity of publicly funded advice and assistance available for challenges to such decisions, have had the result that many families with good cases have been unable to appeal. His evidence did not take into account the effect of recent case-law on the approach which should now be adopted by a county court on an appeal against the decision of a local authority reviewing officer under section 202(4) of the Act. Whether such decisions may be more often overturned in future remains to be seen. The strict time limit for an appeal remains unchanged.
- Mr Flack’s evidence about the potentially catastrophic consequences of a family’s inability to challenge a negative Part VII decision is summarised in paragraph 17 above. He said that the other categories of people denied access to assistance through Part VII of the 1996 Acts have been similarly affected. In those circumstances the provision of accommodation under section 17 of the 1989 Act has, in his view, performed a vital safety net function for them for many years.
- He observes that although families who have become intentionally homeless may be open to criticism for the decisions they made which led them to this state, it is almost never suggested that they are bad parents and that it would be in their children’s interests to be separated from them. He says that this fact, together with concerns about the objectivity of housing authorities’ decisions in this area, have led local authorities to be willing to help such families under section 17 of the 1989 Act to enable them to find housing together. This approach, he says, is in keeping with the main principles of that Act to keep families together, unless there are child protection issues at stake. He says that this is hardly ever a feature of these cases.
- In paragraph 7 of his statement he describes the different ways in which social services staff have helped such families in the past. This help has included assistance with locating private sector accommodation, and help with raising the advance rent and/or the deposits required by private sector landlords. Given the existence of such help, and the provision of the expertise of these staff, often working in conjunction with housing department staff, almost all intentionally homeless families, in his experience, are able to locate private sector accommodation at an early stage. In this way the burden on the housing department is alleviated.
- He quoted recent research which showed that 9,000 families were deemed to have found themselves to be intentionally homeless in 2001. He said that most of them fend for themselves somehow, but a significant minority are unable to do so. He believed that if local authorities could not assist such families at all, then they would have to take significant numbers of children into voluntary care if they were to avoid physical homelessness with their parents. He added:
- He expressed a deep concern that if children were to be placed in voluntary care as a result of their families being unable, through poverty and destitution, to obtain suitable accommodation without local authority help, there was a very strong risk that such families would go into hiding from local authorities rather than seeking help from them. He said that his concern was shared by large numbers of practitioners in this field, whether they act for homeless persons or local authorities.
- He believed that W’s circumstances were “exceptional” in that she is homeless (like a very small percentage of the population), intentionally homeless (a smaller sub-group), and not able to fend for herself (an even smaller sub-sub-group).
- Lambeth’s response to this evidence is to be found in paragraphs 21-23 of Mr Rapley’s first witness statement. He accepts that in the field of social policy different views can be taken on what is reasonable and in the best interests of the community overall. He believes that Parliament is the appropriate forum to consider the issues Mr Flack raises. If Parliament decides to impose further duties or powers on local authorities, it can also consider whether to allocate them with additional resources for this purpose.
- He did not accept the suggestion that social services departments have recognised shortcomings in the application of housing legislation by themselves making accommodation available. In his experience, the provision of accommodation to families by local authorities under section 17 varied from authority to authority. He believed that many, if not all, such authorities did so largely because of a belief, shown to be wrong by both Scott Baker J and the Court of Appeal in A, that section 17 imposed a legally enforceable duty on them to meet the needs identified in the specific assessments of individual children and their families. In fact, from early 2001 onwards Lambeth had embarked on a policy of ceasing to provide accommodation for the great majority of families who were being accommodated pursuant to section 17, even before the judgments in A were delivered.
- As an experienced social worker he strongly disagreed with the passage in Mr Flack’s evidence quoted at paragraph 117 above. He said that there were many reasons why a local authority should offer to accommodate a child of a family into care under section 20 of the 1989 Act without the family being “torn apart”. These reasons might include respite care, looking after a child during a parent’s illness, or providing a much-needed short-term breathing space for the parent(s), thereby giving them an opportunity to organise their lives and perhaps accumulate the resources to find private accommodation. In practice, he said, these steps allowed for internal pressures within the family to be relieved.
- He did not consider W’s case to be an exceptional one, or one that could be regarded as more serious than the great majority of applications to the social services department from homeless families.
- The territory embraced by the London Borough of Lambeth includes many deprived inner city areas. The borough is at the top of many of the national indices of social deprivation used by the Social Services Inspectorate (“SSI”). In common with many other urban areas, Lambeth suffers from a considerable shortage of social housing, and the council’s waiting lists of people seeking such housing are extremely long.
- Under pressure from the Audit Commission, Lambeth is now taking steps to bring its finances under control. The Commission’s annual audit letter for 2000-2001, issued in January 2002, states that the council continues to be one of the lowest performing boroughs. Its 1999-2000 statements of account were found to contain significant errors, and on page 5 of this audit letter there is a table which sets out the significant changes which converted what appeared to be a general fund surplus of £0.4 million to a deficit of £1.5 million. For 2000-2001 the draft figures for the general fund showed a £5.8 million overspend against budget and a cumulative deficit of £3.8 million on the general fund. The auditors said that it was important that the council should continue to maintain its efforts to improve the timeliness and robustness of its financial monitoring processes, and to take corrective action where appropriate.
- These financial pressures impinged on the work of the social services department. A further external pressure on the way in which that department allocated its resources came in the form of a direction by the Secretary of State in November 2000 pursuant to section 7A of the Local Authority Social Services Act 1970. A SSI inspection and an independent inquiry had raised a number of very serious concerns about the quality of Lambeth’s children’s services. The essence of these complaints was that the children and families division was not adequately performing their statutory duties towards children with disabilities, children who were “looked after” by the council, and children in need of protection. These core activities of the division involved its referral and assessment teams in dealing with major problems, such as suggested sexual and other child abuse, and abandoned and neglected children. The need to give priority to this work within a finite budget necessarily involved a switch of resources from a regime in which 30% of the time of those teams had been taken up with families where the children’s only need was a housing need.
- The housing and social services departments significantly failed to meet their budget targets in 2001-2002, with the result that a substantial increase in the level of council tax, the first for several years, failed to bring the council’s finances into equilibrium. So far as the social services department was concerned, it had been spending approximately £1 million per month over its budget in March 2000, mainly due to the pressures in the children and families division. A containment strategy was introduced for 2000-2001 which aimed to reduce expenditure for the year by £5.9 million, but this policy still involved drawing £6.1 million from the council’s reserves. The financial pressures resulting from the policy of providing temporary accommodation to homeless families played a significant part in the department’s overspend. The direct costs (excluding staff time) of providing such accommodation were running at a rate of £900,000 per year in April 2001.
- In August 2001, in order to reduce its expenditure in this area, the council decided to put into effect a new policy in relation to homeless families. Members were advised that the council had previously believed that it had a duty to accommodate children and parents whom the housing department could not help. The true legal position, they were now told, was that while the social services department had the power to assist families in a variety of ways in exceptional circumstances, it did not have a duty to provide housing or to accommodate children. This advice followed the judgment of Scott Baker J at first instance in R v Lambeth BC ex p A [2001] LGR 513, delivered on 25th May 2001
- The implementation of this new policy led to a marked reduction in expenditure by the children and families division on families’ housing needs. In 2000-2001 the total net cost of providing bed and breakfast or hostel accommodation for families with children (after crediting housing benefit receipts) was £802,000, at a suggested net cost of £180 per family per week, for the 137 families who were supported during the year. In 2001-2 only 65 families received support of this kind, at a total net cost of £168,000 and an average weekly net cost of £106 per family. The drop in numbers enabled the council to use lower cost accommodation and to place families in local accommodation which was more appropriately sized.
- In early March of this year the current forecast for 2001-2 was for a net departmental overspend of £694,000 on a total budget of £106 million. The forecast overspend for the children and families division was £2 million. Given the Audit Commission’s concerns about overspending and the level of Lambeth’s general reserves, this level of overspend was continuing to cause concern. For 2002-3 the division is budgeting for expenditure of £27 million, as against a budget figure of £32.5 million for 2001-2 and a forecast actual expenditure for that year of £34.5 million. The total budget available to the department as a whole is being reduced from £106 million to £103 million.
- Against this background Lambeth believes that it must continue to divert resources within the division from providing for families’ accommodation needs (even if it had power to provide for them) to addressing its core activities, which are centred around giving support to abandoned and neglected children, and to children who are suspected victims of sexual or other abuse. At present it estimates that an average of 10 families a week apply to the department in relation to homelessness problems of one kind or another. If it provided each of them with financial assistance of the kind sought by W (£1,000 deposit plus £1,000 rent in advance) this would be likely to cost about £1 million in a full year.
- It takes comfort from the fact that although it is now refusing assistance to homeless families, it has not had to provide accommodation under section 20 of the 1989 Act to any child from the 200 families who applied in the five months prior to March 2002 and whose only identified need was the lack of a home. Its officers believe that this represents the reality. Parents are able to find accommodation from other sources. Help from other members of the family, budget loans or crisis loans from the DSS, charitable grants, going out to work, and further support from a child’s absent father were among the palliatives mentioned in the evidence.
- In addition to resource considerations, Lambeth believes that it would not be in the best interest of all the children and families in its area to adopt a policy under which the general outcome for cases of intentional homelessness was the provision by the local authority of accommodation (or payment for accommodation). Because demand for accommodation within its council housing stock greatly exceeds demand, any such accommodation would be likely to be in hostels or bed and breakfast accommodation, and Lambeth believes that this form of life is highly detrimental to children. It also believes that a “safety net” policy would tend to act as a disincentive to responsible parenting. The number of families who are classified as intentionally homeless for failure to pay the rent might well grow if they felt they were guaranteed an alternative home even if they did not pay the rent.
In this case W, the mother of two children born in 1987 and 1998, was evicted from her home in February 2001. She was found by the local housing authority (Lambeth) to be intentionally homeless because there were substantial arrears of rent. She applied immediately to the local social services authority (also Lambeth) for assistance in securing private sector housing for herself and her two children as a family unit, but that authority declined to help her. She was able to find temporary accommodation with a niece between August 2001 and January 2002. She said that no other member of her family was then able to help her to house her family.
At her solicitors’ request Lambeth social services carried out assessments of the needs of her two children in January 2001. The assessing officer found nothing exceptional in the case and said that the council’s social services department did not provide accommodation for families (para 10). These proceedings were initiated to challenge the result of those assessments.
Maurice Kay J refused permission to apply for judicial review on the ground that he was bound by the majority decision of the Court of Appeal in R(A) v Lambeth LBC [2001] EWCA Civ 1624, (2001) 4 CCLR 486 (see paras 9-15). On 4th March 2002 Elias J held that a local authority had power pursuant to section 2 of the Local Government Act 2000 to assist a family in circumstances like these (see paras 19-20). On 8th March 2002 the Court of Appeal granted W permission to apply for judicial review and directed that the substantive application be heard by the Court of Appeal (para 1). On 9th April the council completed further assessments of the children's needs on the basis, which it disputed, that it did have power to provide assistance to the family. It again declined to make the provision sought (paras 78-81). It was these assessments which were under challenge at the hearing (para 1).
In the judgment of the court the Court of Appeal has now held that the majority decision of R(A) v Lambeth was made without full citation of all the relevant statutes and that it was therefore not obliged to follow it (para 73). It held that a local social services authority does possess the power under section 17 of the Children Act 1989 to help a family who have been found to be intentionally homeless (or are otherwise not entitled to help from their local housing authority) with assistance towards their housing needs as a family, and that the enactment of that Act did not alter the position which had previously existed under section 1 of the Child Care Act 1980, so far as the authority’s powers are concerned. Whether the authority chooses to exercise its powers is a matter for its discretion, and the Court of Appeal declined to interfere with Lambeth’s decision in the present case (paras 83-87).
The court expressed the hope that Lambeth’s children and families division would reconsider the case of W and her family carefully in the light of its judgment (para 87).
| Part | Para | |
| 1. | Introduction | 1 |
| 2. | The facts: a brief summary | 2 |
| 3. | No relief for W under housing legislation | 4 |
| 4. | The Children Act 1989 | 5 |
| 5. | Three recent cases: G, A and J | 7 |
| 6. | The arguments on the appeal | 21 |
| 7. | The pressures besetting Lambeth | 23 |
| 8. | Was A decided per incuriam? | 25 |
| 9. | The principles to apply | 29 |
| 10. | Mr Howell’s arguments | 31 |
| 11. | Two other rules of statutory interpretation | 35 |
| 12. | The earlier caselaw: Tilley and Monaf | 45 |
| 13. | The policy of Part III of the Children Act | 61 |
| 14. | The Immigration & Asylum Act 1999 | 64 |
| 15. | Section 17A of the Children Act | 70 |
| 16. | A must have been decided differently on fuller statutory citation | 73 |
| 17. | Section 2 of the Local Government Act 2000 | 74 |
| 18. | Mr Bielby’s second assessment | 76 |
| 19. | Further evidence by W and her mother | 76 |
| 20. | Our conclusion | 83 |
| Appendix 1 | W and her history | 88 |
| Appendix 2 | Help for homeless families from the social services department: | |
| competing views | 112 | |
| Appendix 3 | Lambeth; its financial difficulties and competing pressures | 124 |
Lord Justice Brooke : This is the judgment of the court.
1 Introduction
2. The facts: a brief summary
3. No relief for W under housing legislation
4. The Children Act 1989
Provision of services for children and their families (ss 17 -19)
Provision of accommodation for children (ss 20-21)
Duties of local authorities in relation to children looked after by them (ss 22-23)
Advice and assistance for certain children (s 24)
Secure accommodation (s 25)
Supplemental (ss 26-30).
Sections 17(2), 23(9) and 29(6) also provide links with Schedule 2 of the Act, and the provisions of paragraph 7 of Part I of that schedule featured in the argument before us.
“17 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; 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.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need … if it is provided with a view to safeguarding or promoting the child’s welfare.
(5) Every local authority –
(a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or sections 18, 20, 23, 23B to 23D, 24A or 24B;
…
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash.
(7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or its value (in whole or in part).
(9) No person shall be liable to make any repayment of assistance or of its value at any time when he is in receipt of income support …
(10) 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;
…
and “family” in relation to such a child, includes any person who has parental responsibility for the child …
17A Direct Payments
(1) Instead of providing services in the exercise of functions conferred on them by section 17, a local authority may make to a person falling within subsection (2) (if he consents) a payment of such amount as, subject to subsections (5) and (6), they think fit in respect of his securing the provision of any of the services which the local authority would otherwise have provided.
(2) The following fall within this subsection –
(a) a person with parental responsibility for a disabled child;
(b) a disabled child aged 16 or 17.
(4) The Secretary of State may by regulations provide that the power conferred by subsection (1) is not to be exercisable in relation to the provision of residential accommodation for any person for a period exceeding a prescribed period.
20. Provision of accommodation for children: general
(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 -
(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.
22. General duty of local authority in relation to children looked after by them
(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is -
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which stand referred to their social services committee under the Local Authority Social Services Act 1970...
23. Provision of accommodation and maintenance by local authority for children whom they are looking after
(1) It shall be the duty of any local authority looking after a child –
(a) when he is in their care, to provide accommodation for him; and
(b) to maintain him in other respects apart from providing accommodation for him.
(6) Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with
(a) [the parent of that child]
unless that would not be reasonably practicable or consistent with his welfare.
27. Co-operation between authorities:
(1) Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority, specifying the action in question.
(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
(3) The [authorities] are –
…
( c) a local housing authority .
30. Miscellaneous
(1) Nothing in this Part shall affect any duty imposed on a local authority by or under any enactment.”
It should also be noted that section 24B(4), which has been inserted by section 4(1) of the Children (Leaving Care) Act 2001 into that part of Part III which is concerned with “advice and assistance”, places a duty on a local authority to provide a “qualifying” person under the age of 24 who is in full-time further or higher education with suitable accommodation during the vacation (or a payment to enable him to secure such accommodation himself) if his term-time accommodation is not available to him then. We mention this to show that provisions expressly dealing with accommodation are not confined to sections 20 to 23 of the Act.
5. Three recent cases: G, A and J
"[Counsel] places section 23(6) at the forefront of his case. In his submission section 23(6) means that the only lawful step for a local authority in circumstances like these is to offer accommodation to mother and child. If he is right, such a far reaching duty would leave the Social Services Department with practically no discretion, would impose considerable strain on their stretched resources, and would render Part VII of the Housing Act 1996 virtually irrelevant where the intentionally homeless person is a parent with young children. I would be astonished to find that such a hugely important social provision should be hidden away in the sixth sub-section of the seventh section in Part III of the Children Act. The Children Act was indeed a great reforming statute, but I would have expected that if the reforms went that far they would find a more prominent place in the statutory framework and be spelt out in clearer language than is urged upon us."
"In my view it would be an extraordinary result - and one which, in the absence of clear words, I cannot hold to reflect the intention of Parliament - if the carefully structured provisions of the housing legislation, which are plainly intended to provide a fair allocation of resources amongst those with housing needs, were to be overridden, in specific cases, by recourse to section 17(1) of the Children Act 1989."
"It would be wholly impractical for a local authority such as Lambeth to have to decide whether a duty to provide accommodation under section 17 of the Children Act 1989 in such a case as this family should override or take precedence over an established need within the Housing Act."
“It is not disputed that the child is a child in need. Moreover, until the decision of the Court of Appeal [in A], it was assumed that the local authority could provide accommodation for a child under this provision, and house her family at the same time under section 17(3). Indeed, I am informed that intentionally homeless families were regularly housed under this provision, thereby avoiding a break-up of the family and saving the authority the cost of taking the child into care. The claimant accepts that this is no longer possible, at least absent a claim that her human rights have been adversely affected.”
6. The arguments on the appeal
(i) The case of J was wrongly decided, and section 2 of LGA 2000 gives the council no power to assist;
(ii) A was not decided per incuriam, and only the House of Lords had the authority to overrule it, if it saw fit;
(iii) Arguments founded on the ECHR Article 8(1) rights of W and her children could not avail them, notwithstanding Elias J’s obiter observations to contrary effect.
(i) A was decided per incuriam, and that this court was therefore entitled to revisit the question of the interpretation of section 17 unfettered by binding authority. If it did so it should hold that this section did give the council the power to assist this family;
(ii) J was correctly decided, so that in any event the council had power to help the family under section 2 of the LGA 2000;
(iii) If both his earlier contentions were wrong, then the court should interpret section 17 in the manner now permitted by section 3 of the HRA 1998 in order to avoid a violation of the ECHR Article 8(1) rights of W and her children. (There was no application for a declaration of ECHR incompatibility in this case).
Even if he succeeded in his contention that the council had the power to help this family, Mr Howell faced the further hurdle of showing that the council’s act of declining help in the exercise of the powers it assumed that it possessed was unlawful, such that this court could interfere with the outcome of the section 17 re-assessment.
7. The pressures besetting Lambeth
8. Was A decided per incuriam?
9. The principles to apply
“The importance of the rule of stare decisis in relation to the Court of Appeal’s own decisions can hardly be overstated. We now sometimes sit in eight divisions and, in the absence of such a rule, the law would quickly become wholly uncertain. However the rule is not without exceptions, albeit very limited. These exceptions were considered in Young v Bristol Aeroplane Co Ltd [1944] KB 718; Morelle Ltd v Wakeling [1955] 2 QB 379 and, more recently, in Williams v Fawcett [1986] QB 604, relevant extracts from the two earlier decisions being set out at pp 615-616 of the report. These decisions show that this court is justified in refusing to follow one of its own previous decisions not only where that decision is given in ignorance or forgetfulness of some inconsistent statutory provision or some authority binding upon it, but also, in rare and exceptional cases, if it is satisfied that the decision involved a manifest slip or error.”
“I have always understood that the doctrine of per incuriam only applies where another division of this court has reached a decision in the absence of knowledge of a decision binding upon it or a statute, and that in either case it has to be shown that, had the court had this material, it must have reached a contrary decision. That is per incuriam. I do not understand the doctrine to extend to a case where, if different arguments had been place before it or if different material had been placed before it, it might have reached a different conclusion. That appears to me to be the position at which we have arrived today.”
10. Mr Howell’s arguments
11. Two other rules of statutory interpretation
“Where it appears that an enactment proceeds upon a mistaken view of earlier law, the question may arise whether this effects a change in that law (apart from any amendment directly made by the enactment). Here it is necessary to remember that, except when legislating, Parliament has no power authoritatively to interpret the law. That function belongs to the judiciary alone. … A mere inference that Parliament has mistaken the nature or effect of some legal rule does not in itself amount to a declaration that the rule is other than what it is. However, the view taken by Parliament as to the legal meaning of a doubtful enactment may be treated as of persuasive, though not binding, authority.”
“So the question is whether the terms of those paragraphs are such as merely to indicate a belief or whether they can be interpreted as enacting by implication that which Parliament, having its erroneous belief, did not find it necessary to enact expressly. In such circumstances I would not be averse to holding that there was an enactment by implication, but first I must be able to discover precisely what Parliament’s belief was. Section 30 of the Finance Act 1940 may well contain such an enactment; it is there made clear that Parliament believed that there was already a right to a certain deduction and the scheme of the section will not work unless there is such a right, so it is not difficult to imply the enactment of that right. But the whole section is limited to cases which are covered by an Order in Council and it is not possible to imply any enactment which goes beyond the scope of the section. There has been no Order in Council which could apply to the present case, and therefore, in my judgment, even if section 30 were held to contain by implication an enactment authorising deductions such as those claimed by the respondents, that would not help them as they are outside the scope of the section.”
“[The relevant paragraph in the schedule to the 1939 Act] is very misleading but to mislead a taxpayer is not the same thing as to entitle him to relief. It may well be that these paragraphs show that Parliament was under a misapprehension as to the existing law at the time, but it does not necessarily follow that if Parliament had been correctly informed it would have altered the law. It is one thing to leave an old deduction untouched and quite another thing to enact for the first time a new deduction of a new kind.”
“No doubt the position would be different if the provisions of the [later] enactment were such that they would only be workable if the law was as Parliament supposed it to be.”
“It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.”
12. The earlier caselaw: Tilley and Monaf
“1. (1) It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under the Children Act 1948, the principal Act or the principal Scottish Act or to bring children before a juvenile court; and any provisions made by a local authority under this subsection may, if the local authority think fit, include provision for giving assistance in kind or, in exceptional circumstances, in cash.
(3) Where any provision which may be made by a local authority under subsection (1) of this section is made (whether by that or any other authority) under any other enactment the local authority shall not be required to make the provision under this section but shall have power to do so.”
The language of the similar provision of the 1980 Act is identical, with the single exception that the words “under this Act” replace the rather longer provisions in sub-section (1) of the 1963 Act.
“In my judgment, however, that is a misconstruction of the Act. The Act is dealing with children who are taken into care under the Act of 1948. This can happen, as I have already indicated, if the parents are unable to provide accommodation for the child, and the Act of 1963 provides that, if there is a lack of accommodation, the council must try to deal with the situation by some other method than taking the child into care. To my mind, the word ‘assistance’ in section 1(1) of the Act of 1963 clearly includes the provision of accommodation and then provides that the general powers of a local authority shall include specific powers. The specific powers do not cut down the general powers of the local authority in the way that [counsel] argues and that would prevent that authority from diminishing the need to receive children into care by providing them with accommodation or by paying for accommodation.”
“It would indeed be a startling result if they were, since it would seem to make nonsense of Part III of the Housing Act 1985. But once that concession is made, then the extent of the assistance to be provided under section 1, and the manner in which the assistance is to be provided, must be for the local authority to decide.”
“It might be thought at first sight that in so far as these applicants were intentionally homeless (and the point only arises if they were) then they had not been prevented from providing accommodation within the meaning of section 2(1)(b) of the 1980 Act. It might also be thought at first sight that section 1 of the Act has nothing whatever to do with the provision of housing even on a temporary basis. But the Court of Appeal has decided otherwise in the case of Att-Gen ex rel Tilley v Wandsworth London Borough Council [1981] 1 WLR 854.”
“On the basis that the children of intentionally homeless persons do fall within section 1 of this Act, it seems to me that that section has to be considered in two parts: the first part imposing a duty; the second, a power and a discretion. But I do not accept that the first part imposes a duty to provide accommodation or cash in lieu. The proper way to read the section so as to relate the two parts is, in my view, as follows: ‘It shall be the duty of every local authority to make available such advice, guidance and assistance (which may, if the local authority think fit, include provision for giving assistance in kind or in exceptional circumstances in cash) as may promote the welfare, etc’. If this is how the section is to be read, then both the question whether to provide accommodation or cash in lieu and the extent of any such provision is a matter for the discretion of the authority and its provision is not a matter of duty.”
“The approach in 1963 as appears from the Circular would, therefore, be: (a) that there should be co-operation between the housing and welfare departments subject to the obvious difficulties where two different authorities are involved; (b) that assistance should be given in the short term to the housing department, where such assistance will avoid the reception into care of children affected by homelessness; (c) that the welfare services have no duty to take over the long term functions of the housing departments; (d) that section 1 of the 1963 Act applies equally to children being taken into voluntary care, or under the jurisdiction of the juvenile court; (e) that in the normal case, the welfare of the children will be served if the family unit is preserved and that this must be an argument for providing accommodation, at least in the short term.”
“By the same token, in passing the 1985 Act with its special provision relating to homeless persons having a priority need because, inter alia, of dependent children, if the boundaries of this duty were to be affected by the then existing duties imposed upon the local authority by section 1 of the 1980 Act, reference might be expected to have been made by Parliament to that Act.
It is clear from the papers before us that the interaction of these two lines of statutory power and duty has caused considerable anxiety in those responsible for administering these parts of the statutory code. The 1977 Act deals with the provision of ‘bricks and mortar’ in the form of a home in certain circumstances. In the case of those with a priority need, the provision of a home is promoted above those who are achieving normal priority on the housing list. This acts prejudicially to the ordinary inhabitants and ratepayers of the area and is justified as a matter of hardship and emergency in line with the considerations based on section 21(1)(b) of the National Assistance Act as developed through the subsequent legislation. However, where a family is intentionally homeless, the long term provision as a matter of priority of accommodation for the purposes of establishing a home is withdrawn.
If it were not to be withdrawn on this ground where the welfare of the children was involved, the intentionally homeless provisions would not have been applied to that particular category of applicant. It was clearly the intention of Parliament in 1977 that this should be so; families with dependent children should be classified as having a priority need, but that those who were intentionally homeless should not receive special treatment beyond that provided in section 65(3) of the 1985 Act. This does not deprive the children, however, of receiving under section 1 of the 1980 Act such assistance, where appropriate, in the form of accommodation as emergency short term relief to prevent the necessity to take them into care.” (Emphasis added).
“Local authorities therefore have a duty to consider each case on its merits to decide whether it is appropriate to give assistance (including provision of accommodation) to diminish the need for reception orders into care …
The Director of Social Services must accordingly examine each case where reception into care is likely and decide whether by providing temporary accommodation the welfare of children in the family would be promoted by diminishing the need for their reception into care. If he considers that this would be the case then the Council’s duty is to make such provisions. … It will be evident that there is often an over-lap between the duties of a local authority under the provisions of Part 3 of the Housing Act 1985 to provide temporary accommodation and those contained in section 1 of the Child Care Act 1980. The provisions in the latter Act are not however concerned with such questions as to whether the family are intentionally homeless and perhaps at the end of the day the same Council would foot the bill irrespective of the Department involved.”
13. The policy of Part III of the children Act
(1) That Parliament decided to widen the powers of local authorities to safeguard and promote the children in need in their areas and to promote the upbringing of such children by their families by imposing on them a much more widely embracing “target duty” than that contained in section 1 of the Child Care Act 1980 which the 1989 Act replaced (see the broad terms of section 17).
(2) That the range and level of services appropriate to such children’s needs which local authorities were now under a duty to provide might include giving assistance in kind, or in exceptional circumstances in cash (section 17(6)), but these words on the face of them do not confine the power of a local authority, if they think fit, to provide temporary accommodation for an intentionally homeless family (in order to prevent the break-up of that family and the potential damage to the children involved) any more than the presence of the same words did in Tilley (see para 49 above).
(3) That the word “services” which appears in section 17(1) is capable of encompassing the provision of accommodation is made quite clear in section 17(5)(a), which makes it clear that this expression encompasses not only day care (see section 18) and advice and assistance (see section 24) but also the provision of accommodation (see sections 20, 23 and 24B). The same wide meaning of the word “services” is also apparent in Part I of Schedule 2 of the Act.
(4) That in relation to the accommodation of children in need (as opposed to their families), Parliament decided to remove them from the category of persons for whom provision was made in section 21(1)(a) of the National Assistance Act 1948 (1989 Act Sched 13, para 11(1)) and to make the more detailed provision contained in section 20 of the 1989 Act.
14. The Immigration and Asylum Act 1999
“Those who are ineligible for any assistance under the homelessness legislation are thus primarily:
(i) those who are not British citizens or nationals of an EEA state
(a) who require leave to enter or remain in the United Kingdom but do not have it (including asylum seekers);
(b) who have leave to enter or remain but whose leave is subject to a condition that they do not have recourse to public funds;
(c) who have such leave given as a result of a maintenance undertaking, and
(ii) those who are not yet habitually resident in the Common Travel Area unless they have certain community and European Economic Area rights to reside here.”
“(1) In this section ‘eligible person’ means a person who appears to the Secretary of State to be a person for whom support may be provided under section 95.
(2) Subsections (3) and (4) apply if an application for support under section 95 has been made by an eligible person whose household includes a dependant under the age of 18 (‘the child’).
(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, adequate accommodation for the child as part of the eligible person’s household.
(4) If it appears to the Secretary of State that essential living needs of the child are not being met, he must exercise his powers under section 95 by offering, and if his offer is accepted by providing or arranging for the provision of, essential living needs for the child as part of the eligible person’s household.
(5) No local authority may provide assistance under any of the child welfare provisions in respect of a dependant under the age of 18, or any member of his family, at any time when –
(a) the Secretary of State is complying with this section in relation to him; or
(b) there are reasonable grounds for believing that –
(i) the person concerned is a person for whom support may be provided under section 95; and
(ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95.
(6) ‘Assistance’ means the provision of accommodation or of any essential living needs.
(7) ‘The child welfare provisions’ means –
(a) section 17 of the Children Act 1989 (local authority support for children and their families);
(b) section 22 of the Children (Scotland) Act 1995 (equivalent provision for Scotland); and
(c) Article 18 of the Children (Northern Ireland) Order 1995 (equivalent provision for Northern Ireland).
(8) Subsection (9) applies if accommodation provided in the discharge of the duty imposed by subsection (3) has been withdrawn.
(9) Only the relevant authority may provide assistance under any of the child welfare provisions in respect of the child concerned.
(10) ‘Relevant authority’ means –
(a) in relation to Northern Ireland, the authority within whose area the withdrawn accommodation was provided;
(b) in any other case, the local authority within whose area the withdrawn accommodation was provided.
(11) In such circumstances as may be prescribed, subsection (5) does not apply.”
15. Section 17A of the Children Act
16. A must have been decided differently on fuller statutory citation
17. Section 2 of the Local Government Act 2000
18. Mr Bielby’s second assessment
“Section 17(6) requires exceptional circumstances for the local authority to provide financial assistance. [W] currently finds herself homeless and without the means to secure suitable accommodation, having been evicted from her previous flat due to a failure to pay rent. I do not consider these circumstances to be exceptional. Regrettably many families find themselves in this situation. [W] is not exceptional by the way of being a single parent caring for two children. This would not be considered exceptional. Neither would being evicted for rent arrears constitute exceptional circumstances in this particular case. The arrears accrued whilst [W] was gainfully employed, which would appear to be exceptional through being in a position to have begun the process of clearing the arrears. However, [W] did say that she did set up a direct debit with the housing association, but they still went ahead with the eviction.”
“(A) [W] is typical of somebody who has been found intentionally homeless. Indeed she has something of an advantage compared to some other families ie [W] has a close and extended family with the locality. [W] is a warm and capable mother who has up until recently had a work history. Therefore, the Local Authority would take the view that to provide accommodation for [W] and children would mean in effect having to do so for all of the families that have been found intentionally homeless. This would lead to assessments under the housing legislation being redundant. It would also divert resources from other service users.
(B) The cost of providing accommodation under section 20 varies according to who the children are placed with and the length of the placement. At some point it would become more expensive to use section 20 than to provide financial assistance to enable [W] to obtain accommodation in the private sector (eg by provision of a deposit and payment of the first months rent). However, the cost of providing such assistance in all cases where the presenting problem is one of homelessness would be much greater than the cost of providing Section 20 accommodation in this case.”
19. Further evidence by W and her mother
20. Our conclusion
Appendix 1
Appendix 2
“Placing children in voluntary care is always traumatic and can cause irreversible damage to the children and the families involved. Perversely, the consequences in the long term can mean that the children involved are more likely to end up on the streets in later life. Between one-quarter and one-third of people sleeping rough were taken into local authority care as children. When families are torn apart and children taken into care, the child’s life is severely disrupted. Moving schools during such a traumatic time can severely affect their education and prospects in the long term.”
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