ON APPEAL FROM The High Court: Queen's Bench Division (Administrative Court)
Mr Justice Holman
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
LADY JUSTICE KING
| Worcestershire County Council
|- and -
|R on app of J (by his litigation friend W)
|- and -
|The Equality & Human Rights Commission
Chris Buttler (instructed by Bindmans LLP) for the Respondent
Jan Luba QC (instructed by The Equality & Human Rights Commission) for the Intervener
Hearing date : 4th November 2014
Crown Copyright ©
Lady Justice King:
"Social care considers funding a nursery placement of 5 hours a week and consideration is given whether these hours could "travel" with him and the family."
"On those occasions as a travelling family, when you need to access social care services to support J and you are not living within the Worcestershire boundary, you will need to access the host local authority's services. These are usually accessed by contacting the local authority's access centre or hub. "
"…under s17(1) of the Children Act 1989, pursuant to assessments of the claimant's needs made at times when he is actually present within their area, the Worcestershire County Council do have the power for so long as he remains a child who is a child in need, to provide a range and level of services appropriate to his needs both inside and outside their area, and at times when the claimant is not physically within their area (but is within England and Wales). The power includes the powers under s17(5) and s27(1)."
Section 17 Children Act 1989
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.
a) the nature of the "general duty" ; and
b) the extent of the obligation imposed by the section to provide services.
What remains to be clarified is the issue as to whether the local authority's power to provide services extends to a child in need who is out of the area of the local authority that carried out the s17 assessment.
i) A duty to assess under the "general duty" is triggered by the physical presence of a child in need in a local authority's area. No more is needed.
ii) It follows that more than one local authority may be the subject of the duty to assess (in Stewart the child was living in one London Borough and going to school in a second.)
iii) Where more than one authority is under such a duty there is no reason for more than one authority to assess and "there is a manifest case for co-operation under s27 of the Children Act and a sharing of the burden by the authorities". 
iv) The duty is to assess the needs of the child which, per s17(10)(a), includes situations in which the child is unlikely to maintain a reasonable standard of health or development without the provision of services by "a" local authority. "The provision is not restricted to services that would be provided by the authority making the assessment". .
"85 ….A child in need within the meaning of s17(10) is eligible for the provision of those services, but he has no absolute right to them."
"92…Section 17 refers to a range and level of services appropriate to the children's needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services".
"110 It does not follow that the social services authority is not obliged to assess the needs of an individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance; and in the present context that involves assessing the needs of the child in order to decide whether and to what extent to which the authority will meet his needs. But there is no need to invoke this implied duty;… the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2."
" A refusal to provide assessed services is, of course, amenable to challenge by way of judicial review in accordance with recognised principles of public law, one of which is that discretionary statutory powers must be exercised to promote the policy and the objects of the statute".
" Furthermore, where the assessment is to the effect that there is a need for services, any decision not to provide the assessed services will no doubt, and not least because a child is involved, be subjected to strict, and it may be sceptical scrutiny, particularly if there is no available argument based on lack of resources."
i) A local authority has a duty to assess a child in need who is physically present in their area.
ii) Having assessed the needs the authority thereafter has a broad discretion, in the form of a power rather than a duty, to determine how and to what extent they will make provision for the identified needs, subject always to the public law safeguard provided by challenge by way of judicial review.
The local authority's case
i) The county council has a duty assess the needs of a child who is physically present in their area and who is a child in need as defined by the Act.
ii) Having assessed the needs, the local authority has the power to provide services outside their area for a child they have assessed and who is physically present in their area, at the point of provision of the assessed services.
iii) They do not have the power to provide services for a child who has been assessed whilst physically present in their area, but who has voluntarily left the area, albeit temporarily. A distinction, they submit, must be drawn between children who leave solely in order to receive services and children who leave for some other unconnected reason.
The Respondent and Equality and Human Rights Commission's case
i) The context of the section within the Act. S17 CA 1989 is the first section within Part III of the Children Act 1989 entitled "Local Authority's Support for Children and Families, Provisions of Services for Children and their Families". Mr Luba points also to the heading of s17 CA 1989 itself, "Provision of Services for Children in Need, their Family and Others". Mr Luba submits that his interpretation is consistent with those headings.
ii) There is no express inhibitor within the terms of s17 CA1989 or its progeny s20 CA 1989 as to where services can be provided, in other words there is no circumscription found within the wording of the section.
iii) The precise wording of s17(1)(b) requires a local authority to "promote the upbringing of such children by their families". The reference to families must, he submits, relate not only to static families but travelling families such as J's.
iv) Where Parliament is seen to grant a power to provide services, it is ordinarily content to allow the authority in question, the discretion as to how that power is to be used without any form of inhibition.
Section 27 Children Act 1989
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.
 (i) "Section 17 confers a broadly expressed, general duty (and power) which, when it relates to the provision of services, should be purposively construed".
i) The starting point for ascertaining the purpose of the section is clear: the "Provision of services for children in need, their families and others".
ii) I accept also that the section has no express limitation as to where the services can be provided which accords with the fact that ordinarily, where Parliament has granted a local authority power to provide services, it is content to allow that authority discretion as to how that power is to be used without any form of inhibition.
iii) I agree with Holman J that whilst sections 17(5) and 27 CA 1989 do not directly impact upon the scope or construction of s17(1) CA 1989, they": "indicate that Parliament contemplated and intended that the reach of powers under section 17(1) does extend to the provision of services outside the area when the child himself is outside the area". [54(v)].
iv) In putting forward their interpretation of s17 CA 1989, the local authority have been compelled to make a somewhat artificial distinction as between children sent out of the area by the authority to take up services they are providing and those who have left the area "voluntarily". Such a distinction does not seem to me to be sustainable; the local authority having accepted, as they do, that they have a power to provide services outside their area, it must follow that such provision is under an 'umbrella' power to "Provide services for children in need, their families and others".
v) The question thereafter as to which children, and to what extent, those services are to be provided is a matter for the discretion of the assessing local authority. The exercise of that discretion derives from the same power and can accordingly be exercised as much to provide respite care for the severely disabled child of a travelling family with a long standing winter base in their area, as to the placement of a child in accommodation across into an adjoining local authority area.
vi) I accept the submission of Mr Luba that it is no answer to say that any difficulties for families such as the family of J are ameliorated through the use of s27 CA 1989. Not only do I regard such an approach as unlikely to be routinely effective, (particularly in relation to a travelling family), but the primary duty is that found in s17 CA 1989 and it should not be subrogated to the s27 CA 1989 duty to co-operate.
Lord Justice Floyd:
Master of the Rolls:
"It shall be the general duty of every local authority…
(a) to safeguard and promote the welfare of children within their area who are in need;
(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".
"On Mr Sharland's and the local authority's construction there is, in effect, an iron curtain around the boundary of the local authority with a one way services door. Services can of course be brought in from outside, so some specialist person can come in from outside the area of the local authority to provide a service to the child within the area. But, submits Mr Sharland, no service at all can be provided to the child while outside the area. Many examples were discussed during the hearing. Suppose, pursuant to section 17, a care worker is funded and provided to attend daily at a disabled child's home to help him get up, wash or bath, and dress. Continuity, regularity and familiarity might be very important to the child. Then suppose that, for good reason, the child's parents had to spend a short period of time just over the county boundary, perhaps caring for a sick relative, and took the child with them. At once, on Mr Sharland's argument, the provision of the care worker would have (if only temporarily) to cease, even if the distance between the two dwellings was short, and the temporary one no less convenient to the care worker. It is an iron curtain (not Mr Sharland's metaphor, but mine, based on his argument) and the moment the child is out of county, however near by and however temporarily, the service cannot be provided. This is no doubt an extreme, although by no means a fanciful, example."