England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:
THE COUNTY COURT AT CENTRAL LONDON
DEPUTY DISTRICT JUDGE SMITH
2WT01289
THE COUNTY COURT AT WANDSWORTH
DISTRICT JUDGE HUGMAN
4PA31546

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/07/2015

Lady Justice Sharp:

Introduction

1. The appellants in these conjoined appeals, Ms Maryam Mohamoud (M) and Ms Bushra Saleem (S), were given temporary accommodation by the local authority respondents on the ground that they were homeless and in priority need because they had dependent children. Their individual circumstances were then assessed. In each case it was determined that the appellants were intentionally homeless within the meaning of the relevant provisions of Part VII of the Housing Act 1996 (the 1996 Act); the local authority then took steps to regain possession of the accommodation that had been provided, possession proceedings were begun in the county court and though those proceedings were defended on a number of grounds, including that the making of an order for possession would breach the appellants' rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), orders for possession were ultimately made.
2. Permission to appeal was granted to each appellant by the court below on one ground only: that the judge was wrong in law to decide that the respondent local authority had complied with its duty under section 11 of the Children Act 2004 (the 2004 Act). The possession orders were stayed pending the resolution of these appeals, and the appellants remain in the temporary accommodation they were provided with (in M's case in 2012, and in S's case in 2013). S was given permission to appeal on one further ground, which was that the District Judge erred in finding that the duty to assess the needs of her children under sections 17 and 20 of the Children Act 1989 (the 1989 Act) did not arise until the possession order was made, but this ground has not been pursued on this appeal.
3. The argument for the appellants is that local authorities are required by section 11(2) of the 2004 Act to have proper arrangements in place to ensure that their officers treat the best interests of children as a primary consideration whenever they discharge their local authority functions. The respondents had no such arrangements in place; they did not, as they were obliged to do by section 11, conduct a Children Act assessment of the children concerned, and they did not therefore treat the best interests of the children as a primary consideration when seeking their eviction. It follows that the relevant functions under Part VII of the 1996 Act, were not carried out in accordance with the law for the purposes of article 8 of the Convention.
4. The respondents however submit that the duty arising under section 11(2) of the 2004 Act is simply an overarching strategic obligation, giving rise to no individually enforceable rights. In any event, local authorities are not required to carry out a Children Act assessment to lawfully exercise their functions under Part VII. On the facts, the local authorities complied with their duty under section 11(2) of the 2004 Act and/or consideration of the children's best interests did not or should not result in the court failing to give effect to the respondents' unqualified right to possession under Part VII of the 1996 Act. Insofar as the appellants seek to challenge the general arrangements that were in place, in relation to the respondents' duties under section 11(2) of the 2004 Act, this was not an argument raised below and should form no part of this appeal.

Section 11 of the Children Act 2004

5. Section 11 of the 2004 Act places duties on a range of organisations and individuals, including by section 11(1)(a), local authorities, to ensure their functions and any services they contract out to others, are discharged with regard to the need to safeguard and promote the welfare of children. It provides in part that: This sectionnoteType=Explanatory Notes has no associated

"(2) Each person and body to whom this section applies must make arrangements for ensuring that –

(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children…

(4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State."

6. The current statutory guidance issued by the Secretary of State pursuant to section 11(4) of the 2004 Act and a number of other statutory provisions is "Working together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children" (the 2013 Guidance) in effect from April 2013. It contains practical examples of the type of arrangements that are required by the section 11(2) duty in a chapter which deals specifically with section 11 (Chapter 2, which is headed: "Organisational Responsibilities"). The organisational arrangements referred to in Chapter 2 include matters such as clear lines of accountability for the commission and provision of services, leadership responsibility and a culture of listening: see para 2.4. The only reference to housing in Chapter 2 (at page 53) says:

"Housing and homelessness services in local authorities and others at the front line such as environmental health organisations, are subject to the section 11 duties set out in paragraph 4 of this chapter. Professionals working in these services may become aware of conditions that could impact on children. Under Part 1 of the Housing Act 2004, authorities must take account of the impact of health and safety hazards in housing on vulnerable occupants, including children, when deciding on the action to be taken by landlords to improve conditions. Housing authorities also have an important role to play in safeguarding vulnerable young people, including young people who are pregnant or leaving care."

7. In Castle and ors v Commissioner of Police for the Metropolis [2012] 1 All ER 953, one of the issues that arose was whether the defendant's decision to contain and therefore to detain children when authorising the containment of a demonstration, constituted a breach of his duty to safeguard their welfare under section 11(2) of the 2004 Act (as a chief police officer he was under such a duty by virtue of section 11(1)(h) of the 2004 Act). The application for judicial review failed. However the Divisional Court (Pitchford LJ and Supperstone J) rejected the argument that the section 11(2) duty only obliged the defendant to make arrangements with a view to ensuring that the relevant policing functions were discharged having regard to the need to safeguard and promote the interests of children.
8. Pitchford LJ giving the judgment of the court concluded that section 11(2) of the 2004 Act requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children. He said at paras 50 and 51:

"50. …it is apparent that the thrust of the statutory guidance is towards institutional understanding of the statutory need and its application by senior decision makers. We do not, however, consider either that the statutory guidance is concerned only with training and information, or that it does not apply to the manner in which police functions are exercised.

51. It would, we think, be surprising if the obligation imposed upon a housing authority or an immigration caseworker should be different from that imposed upon the wide range of organisations and individuals specified in section 11(1) of the 2004 Act, particularly local authorities and the police. It was the strongly expressed obiter view of the Supreme Court in In re E and ZH that the purpose of section 11 was to incorporate within domestic law the spirit of the United Kingdom's international obligations towards children stated in Art. 3.1 of the UNCRC. The Court was explicit in its statements that the statutory duty was to ensure that public functions were performed having regard to the need to safeguard and promote the welfare of children. We conclude that Mr Westgate is right. The chief officer's statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare. This does not mean that the duties and functions of the police have been re-defined by section 11. Chapter 2.4 of the statutory guidance, to which the chief must also have regard,^[1] makes that explicit. In our view the guidance accurately states the obligation of chief officers of police "to carry out their existing functions in a way that takes into account the need to safeguard and promote the welfare of children".

9. He went on to say:

"The impact which the duty will have upon the performance of a function will depend to a significant degree upon the function being performed and the circumstances in which it is being performed. The responsibility will take on its sharpest focus when a police officer encounters a child who needs protection, for example in circumstances such as those anticipated by the statutory guidance concerning police investigations during which an unprotected child or a child at risk comes to their attention. A police officer will not be deterred from performing his public duty to detect or prevent crime just because a child is affected but when he does perform that duty he must, as the circumstances require, have regard to the statutory need."

10. I respectfully agree with that analysis. Insofar as the respondents submit that the section 11(2) duty is confined to the making of strategic arrangements, I do not agree. As Pitchford LJ says, the section 11(2) duty is not confined to issues such as training and the provision of information: it applies to the manner in which a particular function should be exercised. There are however important caveats: this does not mean that the particular function or duty in question is re-defined or re-written; and the reach or impact of section 11(2) (or the sharpness of its focus, to adopt the phraseology used in Castle) is qualified by the nature of the function being carried out, and what the particular circumstances require.
11. It is necessary therefore to identify the particular statutory function to which the section 11(2) duty is said to apply, and the appropriate context: see Huzrat v Hounslow LBC [2013] EWCA Civ 1865; [2014] HLR 17. The relevant function in Huzrat was a determination made by the defendant local authority under section 190(2) of the 1996 Act, that Ms Huzrat, who had a number of dependent children, was intentionally homeless. The court held that, in determining whether the statutory factual criteria were satisfied, there was no room for the deployment of the section 11(2) principles. The answers to the factual questions which the defendant authority had to consider in deciding whether it had been reasonable for Ms Huzrat to continue to occupy the premises could not differ according to whether the defendant authority did or did not take the section 11(2) duty into account: Moses LJ at para 26. The section 11(2) duty provided no warrant for re-writing the statute, or the particular section relied on "in a statute that itself requires consideration of the children under s.213A"; Moses LJ at para 31. The precise statutory duty and context had to be identified, otherwise the very important principles in section 11(2) would simply become a generalised mantra, invoked in a situation in which they could have no effective relevance; and to the extent that the best interests of children required to be addressed, the assessment of whether a decision maker had done this properly was a matter of substance and not form; Briggs LJ at paras 36 and 37.

Part VII of the 1996 Act

12. The functions which the respondents were carrying out in relation to M and S were those in Part VII of the 1996 Act. This sets out the duties and powers (i.e. the functions) of local housing authorities in relation to the provision of housing assistance to those who are or may be homeless or threatened with homelessness including homeless families with children.
13. The main provisions can be summarised. If a local housing authority has reason to believe that an applicant who has applied for accommodation or for assistance in obtaining accommodation may be homeless or threatened with homelessness, it must make such inquiries as are necessary to satisfy itself whether he is eligible for assistance, and if so, whether and if so what duty is owed to him under Part VII: section 184(1) of the 1996 Act. If the applicant has priority need, the local authority shall secure that accommodation is available for his occupation pending a decision as to the duties (if any) owed to him under Part VII section 188 of the 1996 Act. Amongst those who have a priority need, are persons with whom dependent children reside or might reasonably be expected to reside: section 189(1)(b) of the 1996 Act.
14. The section 188 duty ends when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (section 202) though the authority may secure that accommodation is available for the applicant's occupation, pending a decision on a review: section 188(3).
15. One outcome of the section 184 inquiry may be that a homeless applicant is deemed to be intentionally homeless. For an applicant to be deemed intentionally homeless, the local authority must be satisfied that (i) the applicant has either ceased to occupy accommodation, or is likely to be forced to leave it, as a consequence of a deliberate action or inaction by him or her; (ii) the accommodation is available for the applicant's occupation; and (iii) it would have been reasonable for the applicant to continue to occupy the accommodation: sections 191(1) and 196(1) of the 1996 Act.
16. Intentionally homeless families with children are not owed the main housing duty i.e. an offer of permanent accommodation. Section 190(2) of the 1996 Act provides that where the local authority is satisfied that the applicant is intentionally homeless and is in priority need, the local authority is under a duty (i) to secure that accommodation is available for his occupation for such period as it considers will give him a reasonable opportunity of securing accommodation for his occupation: section 190(2)(a) of the 1996 Act; and (ii) to provide him with or secure that he is provided with advice and assistance in any attempts he may make to secure that accommodation is available for his occupation: section 190(2)(b). Section 190(4) of the 1996 Act provides that the applicant's housing needs shall be assessed before such advice and assistance is provided.
17. An applicant has the right to ask the authority to review certain decisions including a decision as to intentional homelessness, and what duty (if any) is owed to him under Part VII: section 202(1)(b) of the 1996 Act. A request for a review of the section 184 decision must be made within 21 days of the day on which the applicant is notified of the decision, but the authority has a discretion to allow for a longer period: section 202(3) of the 1996 Act.
18. There is a right of appeal to the county court on a point of law, in respect of the original decision or the review decision. So an applicant who is dissatisfied with a review decision, or who is not notified of it within the time prescribed may appeal to a county court on a point of law arising from the decision or as the case may be, the original decision, within 21 days of being notified of the decision or of the date on which he should have been notified of it: section 204(1) and (2) of the 1996 Act. The court may give permission for an appeal to be brought outside the period allowed if it is satisfied there was good reason for the delay: section 204(2A) of the 1996 Act.
19. If a local authority was under a duty to secure accommodation for an applicant under sections 188 and 190 of the 1996 Act, it may continue to do so during the period for appealing under section 204 of the 1996 Act, or, if an appeal is brought, until that appeal or any further appeal is finally determined: section 204(4) of the 1996 Act. There are also rights of appeal to the county court pursuant to section 204A against a decision made under section 204(4) of the 1996 Act. For example, if an applicant who has a right of appeal under section 204, is dissatisfied with the local authority's decision not to exercise its power under section 204(4) of the 1996 Act, he may also appeal to the county court against that decision: section 204A(1) and (2)(a) of the 1996 Act.
20. Section 213A of the 1996 Act was inserted into the 1996 Act by section 12 of the Homelessness Act 2002, and provides for co-operation in certain cases involving children. Where a local authority has reason to believe that an applicant with whom a person under the age of 18 normally resides or might reasonably be expected to reside may be ineligible for assistance, may be homeless and may have become so intentionally, or may be threatened with homelessness intentionally, section 213A(1) provides in part that a local housing authority (a) shall make arrangements for ensuring that the applicant is invited to consent to the referral of the essential facts of his case to the social services (either a social services authority, or if the authority is a unitary authority, to the social services department); (b) if he does consent, make arrangements for ensuring that the social services authority are made aware of those facts and of the subsequent homelessness decision in his case; and (c) shall give the social services authority such advice and assistance as is reasonable in the circumstances, if social services requests it in exercise of social services functions under Part 3 of the 1989 Act.
21. Though section 213A requires an applicant to be invited to consent to a referral to social services, a housing authority also has the power to disclose information about a homelessness case to the social services authority or department (if they have reason to believe that a child is, or may be, at risk of significant harm for example). This is pointed out in para 13.7 of The Homelessness Code of Guidance for Local Authorities (the Homelessness Code), the statutory guidance to which local housing authorities or social services authority must have regard in the exercise of their functions relating to homelessness: see section 182 of the 1996 Act.
22. Under the 1989 Act, local authorities are required to provide services for children in need for the purposes of safeguarding and promoting their welfare, and local authorities undertake assessments of the needs of individual children to determine which services to provide and what action to take: see section 17 of the 1989 Act ("children in need"); section 20 of the 1989 Act ("children in need of accommodation"); section 31A of the 1989 Act (care orders) and section 47 of the 1989 Act (where there is suspicion that a child is suffering or likely to suffer significant harm). Children Act assessments are dealt with in detail of Chapter 1 of the 2013 Guidance, headed "Assessing need and providing help".
23. The Homelessness Code sets out how arrangements for children caught up in the homelessness of their parents should work in practice. It says section 213A gives social services the opportunity to consider the circumstances of the child(ren) and family and plan any response that may be deemed by them to be appropriate (see para 5.3).
24. If approached by a family with children who have been deemed to be homeless, or are threatened with homelessness intentionally, the social services authority, will need to carry out a Children Act assessment to decide whether the child is a 'child in need' under the terms of the 1989 Act. The findings of the assessment should provide the basis for the decision as to whether the child is a 'child in need' and what, if any, services should be offered to the child in order to safeguard and promote his/her welfare. Section 17 of the 1989 Act requires a local authority to promote the upbringing of children within their family, in so far as this is consistent with their general duty to safeguard and promote their welfare. The social services authority might wish to consider, for example, whether the best way of meeting the child's needs would be by assisting the family to obtain accommodation, for example by providing temporary accommodation or a rent deposit, as part of the exercise of its duty set out in section 17 of the 1989 Act (para 13.8).
25. Further, where a social services authority has been made aware of a family found to be ineligible for assistance or homeless, or threatened with homelessness, intentionally by the housing authority, and they consider the needs of a child or children could best be met by helping the family to obtain accommodation, they can request the housing authority to provide them with such advice and assistance as is reasonable in the circumstances. Under s.213A(5) of the 1996 Act, the housing authority must comply with such a request. Advice and assistance as is reasonable in the circumstances might include, for example, help with locating suitable accommodation and making an inspection of the property to ensure that it meets adequate standards of fitness and safety. However, the housing authority is not under a duty to provide accommodation for the family in these circumstances: (see para 13.9).
26. For present purposes it also important to note the following.
27. First, tenancies granted under Part VII of the 1996 Act, including to families with dependent children, are not secure tenancies. A local authority is not therefore required under domestic law to establish any particular ground for the termination of a tenancy, when seeking possession from a tenant on whom a Notice to Quit has been served. There are clear policy reasons for this. The homelessness regime provides the local authority with the flexibility in the management of its housing stock that it needs if it is to respond quickly and responsibly to the demands that the pressing social problem of homelessness give rise to, and the housing stock from which the local authority provides this temporary accommodation may not be owned by the local authority but will have been obtained from a housing association or a private landlord: see Hounslow LBC v Powell [2011] UKSC 8; [2011] 2 AC 186, Lord Hope of Craighead DPSC at para 10 and Lord Phillips of Worth Matravers PSC at para 109.
28. Secondly, children are expressly catered for in the legislative scheme in Part VII in two respects. At the beginning of the process the presence of a dependent child gives rise to the priority need and the provision of temporary accommodation. At the end of the process that presence is catered for by section 213A of the 1996 Act. This provides a link or bridge between the exercise of local housing authority functions under Part VII and the functions of local authority social services under the 1989 Act. In the normal course, if a parent, who is in temporary accommodation, is not owed the main housing duty under Part VII (the situation which is posited here) then a Children Act assessment will have to be undertaken of any dependent child in any event.
29. Thirdly, as can be seen, by its structure, the legislative scheme in Part VII provides for periods of "temporary deferral" by default, between the making of the section 184 decision, and the point at which a Notice to Quit may be served; as do legal proceedings in the event they are taken, as they were here.
30. Fourthly, both the local authority seeking possession of temporary accommodation provided under Part VII, and the court hearing any subsequent claim for possession are required to act compatibly with an occupier's rights under article 8 of the Convention: see Manchester County Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104; [2011] HLR 7 and Hounslow LBC v Powell. So is a court which conducts a review in accordance with section 204 of the 1996 Act: see R (on the applications of N) v London Borough of Newham and London Borough of Lewisham [2014] UKSC 62; [2014] 3 WLR 1548; [2015] HLR 6. An adjudication of proportionality in these respects is therefore accommodated within the existing framework of the legislative and court procedures.
31. Fifthly, the "best interests" or wellbeing of the child may be relevant to the proportionality of interference with rights under article 8 of the Convention as explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, a case concerning immigration and asylum, H (H)v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25; [2013] 1 AC 338, a case concerning extradition and Collins v Secretary of State for Communities and Local Government and another [2013] EWCA Civ 1193; [2013] PTSR 1594, a case concerning planning.
32. The general approach in such cases derives from Article 3(1) of the United Nations Convention on the Rights of the Child 1989 which says: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, best interests of the child shall be a primary consideration." The wellbeing of a child is not necessarily determinative and may be outweighed by other factors, but it must be considered first, and is a primary consideration where the decision directly affects the child's upbringing: ZH (Tanzania) Baroness Hale of Richmond JSC at paras 25 and 33.
33. In Collins Richards LJ did not think section 11 added materially to the article 8 analysis in any event (see para 14); and approved the observation of Hickinbottom J in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] JPL 1383, that it will not usually be necessary for the decision-maker to make their own inquiries as to evidence that might support the child's best interests: see para 16.
34. Sixthly, if a court is satisfied that eviction would be disproportionate, either on a review or in possession proceedings, it can prohibit the eviction for as long as that is the case: see Manchester City Council v Pinnock, Lord Neuberger MR paras 45 and 64; and Hounslow London Borough Council v Powell, Lord Hope of Craighead DPSC paras 62 and 63.
35. Seventhly, where an applicant has no right under domestic law to remain in possession of a property, the threshold for raising an arguable case of a lack of proportionality is a high one (exceptionally high, where an authority seeks to recover possession of interim accommodation provided under section 188 of the 1996 Act: "If court proceedings are necessary, and the day of the court hearing arrives, what would be the homeless person's defence?" R (on the applications of ZH and CN) Lord Hodge JSC, at 65).
36. Eighthly, the legitimate aims within the scope of article 8.2 of the Convention, for the purposes of determining proportionality, include the vindication of the local authority's rights of ownership and enabling it to comply with its public duty in relation to the allocation and management of housing stock: Manchester County Council v Pinnock Lord Neuberger MR at 51 and Hounslow LBC v Powell Lord Hope of Craighead DPSC at 36.
37. Ninthly, the court will deal with the matter summarily unless it is seriously arguable; the onus will be on the defendant to raise the issue, and there is no need for the structured approach to the issue of proportionality which might be applicable in other contexts, such as immigration: indeed such a structured approach would be wholly inappropriate in the context of a statutory regime that has been deliberately designed by Parliament, for sound reasons of public policy, so as not to provide an occupier with a secure tenancy: Manchester County Council v Pinnock, Lord Neuberger MR at paras 54 and 61 and Hounslow v Powell, Lord Hope of Craighead at para 41.

The facts in M's case

38. M is the mother of Z, born on 26 June 2010, who lives with her. She applied to the RBKC for homelessness assistance under Part VII of the 1996 Act on 17 February 2012. Because she was a single parent with a dependent child she was assessed as in apparent priority need. She was then provided with interim accommodation pursuant to a non-secure tenancy agreement which was signed by her on 28 March 2012 while RKBC made inquiries into her application. The accommodation was a privately owned 2 bedroom flat in Tunworth Crescent, Wandsworth SW15, leased from its owner by RBKC, and used as part of the stock of housing to provide temporary accommodation to applicants for housing assistance, such as M.
39. RBKC wrote to M on 7 June 2012 (M's decision letter) giving its decision on her application. It decided M was eligible for assistance, homeless and in priority need because she had a dependent child, but that she was intentionally homeless because she had deliberately relinquished the tenancy of a flat in Bristol, let to her by Bristol City Council in July 2009. The tenancy had come to an end as a result, but it would have remained available to her and would have been reasonable for her continued occupation. The letter recorded that M had earlier approached Barnet London Borough Council for housing assistance, and it decided on 17 November 2011 she was intentionally homeless. The letter went into considerable detail about the enquiries undertaken which had led to the decision on her application but in short, she had left the flat in Bristol to go and live with her then partner in Sweden, but had left him because of domestic violence.
40. In a separate letter, accompanying the decision letter, but undated, RBKC notified M that it considered its duty to secure accommodation for such period as it considered would give her a reasonable opportunity of securing accommodation for occupation (under section 190(2)) would be discharged by continuing to provide her with temporary accommodation until 25 July 2012 i.e. a period of 6 weeks. This letter gave her certain advice on how to find alternative accommodation and said: "Additionally, as you have a dependent child, social services may have a duty to provide you with assistance." It went on to say, that Social Services are a locally based service, and M could locate the service nearest to her, by contacting Wandsworth, and it gave M the relevant address and contact telephone number.
41. M's solicitors wrote to RBKC on 12 July 2012 requesting a review under section 202 of the 1996 Act of the decision that M had become intentionally homeless. RBKC wrote back on 19 July 2012, with its decision that no request for a review of the section 184 decision had been made within time (the 21 day period provided); and it declined to exercise its discretion to extend time. This decision was not challenged by M, and there was therefore no section 204 appeal to the county court against the section 184 decision. As a result, RBKC's duties under Part VII came to an end on 25 July 2012, and from then on, RBKC's right to possession under Part VII was complete and unqualified.
42. RBKC's Placement Team then wrote to M on 27 July 2012, informing her that a Notice to Quit would be served shortly. The Notice to Quit was served on 31 July 2012 and expired on 29 August 2012. Seven weeks later, on 18 October 2012 RBKC wrote to M telling her that legal action would be taken to gain possession of the flat. Two days later, RBKC wrote to M and told her that the case had been referred for legal action, and on 31 October 2012 it issued the claim for possession (so four months after it made the decision that she was intentionally homeless).
43. M's solicitors wrote to RBKC on 27 November 2012 and said that RBKC had not referred M to Children's Services for an assessment under the 1989 Act, and it had therefore failed to comply with its duties under section 213A of the 1996 Act.
44. On 17 December 2012 M served her defence to the possession claim. Her defence was advanced on three grounds: first, that RBKC was in breach of section 213A of the 1996 Act, because it had not referred the case to its Children's Services department for an assessment of Z's needs under the 1989 Act; secondly, that RBKC was in breach of the full housing duty M was owed under section 193(2); and thirdly, under article 8 of the Convention. In particulars given of the case on article 8 it was said that RBKC owed a duty to Z under the 1989 Act to carry out an assessment of his needs and evicting him without providing alternative accommodation would be "a breach of those duties" and secondly, that there was failure to have regard to the best interests of Z pursuant to section 11 of the 2004 Act.
45. On 18 December 2012, M served a witness statement in the proceedings which dealt in the main, with her housing history from 2009. M also said since being told by RBKC that she was intentionally homeless she was not aware of being referred to the Children's Services Department of RBKC or LBW. There was one brief reference to Z. M said he had a low immune system, and often suffered with infections. Nothing else was said about his needs or any difficulties that moving from the temporary accommodation might cause him.
46. RBKC wrote to M on 10 January 2013 asking her to consent to a referral to LBW's Family and Children Service. M consented to that referral through her counsel at a hearing on 30 January 2013 where the claim was allocated to the multi-track and directions were given for trial (RBKC subsequently applied for permission to appeal against the directions order, on the ground there was no seriously arguable defence to the claim but on 28 November 2013 this application was refused).
47. RBKC referred M's case to the Children's Services Department of LBW on 29 July 2013. On 31 July 2013, Wandsworth legal services department confirmed to RBKC that LBW's Children's Services Department would take steps to assess Z and his family "at the point that eviction is confirmed." They went on to say that Children's Services Department had written to M and advised her to contact them when and if a possession order was granted. RBKC wrote to M's solicitors on 10 October 2013 asking them to take instructions on whether she would now agree to give up possession. M's solicitors replied on 13 November 2013. They said that LBW's agreement to carry out an assessment made no difference.
48. On 10 December 2013, RBKC's Family and Children Services (FCS) then carried out its own assessment of Z. The assessment concluded there were no health concerns and there did not appear to be any outstanding issues of child protection. It said Z appeared as a healthy and lively young boy who was meeting his developmental milestones. There were some minor difficulties which M had in obtaining documentation which Family Services would assist with; and M reported some difficulty with finances which Family Services proposed to address by signposting her appropriately to ensure she was in receipt of the benefits to which she was entitled. There was found to be "currently no long term need for Family Services involvement". The "major outstanding and concerning issue for [Z and M was] housing."
49. The manager's decision said this: "In the event that the children [sic] find themselves homeless they will be children in need within the area of the London Borough of Wandsworth. FCS may need to consider exercising their powers pursuant to section 20 of the 1989 Act to look after the children until such time as their mother is able to acquire suitable accommodation for the family. FCS in RBKC have concluded that there are no child protection concerns and no further role for FCS."
50. This assessment was then sent to M's solicitors. They were asked whether in the light of that assessment M would now agree to give up possession. In their reply of 7 February 2014 M's solicitors said that she would not give up possession as her defence was based not only on the issue of the 1989 Act but also on the unlawfulness of the decision that M was intentionally homeless.
51. On 20 February 2014 RBKC's claim for possession was heard and determined in its favour. Four issues were raised on M's behalf at trial. First, that there had been a failure to assess M's housing needs in accordance with section 190(2)(b) of the 1996 Act before providing her with advice and assistance. The Deputy District Judge rejected that contention, finding that it was clear from the decision letter of 7 June 2012, that RBKC knew sufficient about M's housing needs to discharge its duties under section 190(2)(b). Secondly, under section 11 of the 2004 Act, the Deputy District Judge was satisfied that RBKC did have regard to its obligations under section 11. He concluded there were certain functions which it had which it cannot discharge in a way that promotes the child's welfare and this was a case in point. The decision to bring possession proceedings or recover possession of accommodation of a family with a child is never likely to be in the best interests of that child. He said RBKC had discharged its section 11 duties to the extent possible and, by the date of the hearing, M had already had nearly two years in which to seek alternative accommodation.

The facts in S's case

52. S is the mother of three children: DI, born on 5 September 1996; MS, born on 12 June 1998 and DA born on 2 October 2004. On 3 January 2013 S applied to LBW for homelessness assistance under Part VII of the 1996 Act. The children were then aged 16, 14 and 8 (though by the time the possession order in S's case was made, DI was an adult); S was therefore assessed as in apparent priority need, and given temporary accommodation whilst LBW made inquiries into her situation, the duties owed to her under Part VII of the 1996 Act. S and the children were first put into an hotel; and then, on 11 March 2013, LBW granted S a non-secure tenancy of a flat in Tildesley Road SW15.
53. LBW wrote to S on 1 July 2013 with its decision that it was satisfied that S was intentionally homeless. This was because S had been evicted from private sector rented accommodation on the ground of rent arrears of more than £7,000. Her rent had previously been covered by Housing Benefits, but those benefits were stopped because S had failed to tell the relevant department that she was cohabiting with her husband. Her subsequent failure to pay rent was therefore a deliberate act.
54. The decision letter said LBW had decided that a period of 28 days was reasonable for S to make her own arrangements for accommodation; and that the Temporary Accommodation Team who managed her accommodation, would be advised to apply for a Possession Order, and when that expired, a Bailiff's Warrant. It advised S to make alternative arrangements for accommodation immediately, and it informed S of a right to request a review of that decision within 21 days of the notification of the letter.
55. On about 24 January 2014 S was served with a Notice to Quit. On 24 February 2014, the Notice to Quit expired. On 26 February 2014 LBW issued the claim for possession.
56. On 13 March 2014, S's solicitors wrote to LBW asking what steps had been taken to refer the family to Children's Services in order to assess the children's needs. On 4 April 2014 S's solicitors wrote to LBW and said that S had received a call from Children's Services indicating preparations were being made to carry out an assessment under the 1989 Act but that no assessment had started. On 6 April 2014, S's solicitors wrote to LBW's Children's Services, and said they understood that the Housing Department had referred the family to Children's Services under s213A of the 1996 Act. They asked Children's Services to liaise with the Housing Department. On the same day they sent a chaser letter to the Housing Department.
57. On 9 April 2014 LBW's Senior Housing Options and Assessment Officer replied to the letters dated 13 March 2014 and 6 April 2014. She said that she had sent a request to the Children's Services department and Children's Services had advised her that they had written to S inviting her to make contact. She also said she had posted detailed information on advice and assistance to S: S had been advised she could come and see a member of the Housing Options Team to discuss the information and could stay in the Tildesley flat until LBW sought a Bailiff's Warrant.
58. On 14 April 2014 S filed a defence to the possession claim. Amongst other things, the defence alleged that the service of the Notice to Quit, the bringing of the possession claim, and the making of a possession order were in breach of section 11 of the 2004 Act, and sections 17 and 20 of the 1989 Act because those decisions were not made taking account of the need to safeguard and promote the welfare of S's children. It was also alleged that there was a defence under article 8 of the Convention. In the Particulars given of the article 8 defence it was said the children's article 8 rights were breached because the decision to evict was not in their best interests; that S was diagnosed with depression at the end of 2012, that her husband was a diabetic, and that DA suffered from depression and was underweight. On 29 April LBW served a reply to the defence.
59. On 13 May 2014, LBW's legal department emailed S's solicitors to say that S had made no contact with LBW's Social Services despite the letter to her of 4 April 2014. The email said: "So far, she [S] has not responded and they [Children's Services] have had no contact with her. The Council is willing to carry out an assessment if it proves necessary. At present the children are not deemed to be in need because they are not threatened with homelessness and are adequately housed. If the situation changes then an assessment can be carried out at your client's request." S's solicitors replied the same day, asking that arrangements be made for an assessment. They alleged that the position set out in the email was "irrational and unlawful". LBW's solicitors replied the following day. They gave details of an Initial Contact Worker at Children's Services, and, in relation to the issue of arrangements for an assessment said: "I understand that your client can attend Welbeck House without an appointment in order to commence the procedure."
60. On 19 May 2014, S was interviewed by LBW's Social Services unaccompanied by her children. She was given advice about private renting, and accommodation with family and friends. A compliments slip records "If Mrs Saleem loses court case – will complete assessment then – not before outcome of case."
61. On 21 May 2014, S's solicitors wrote to LBW alleging that LBW were acting unlawfully and irrationally in not carrying out an assessment before the court hearing then listed for 25 June 2014. On 23 June 2014, S's solicitor served a witness statement from S, where she referred briefly to the stress her children were under which was referable to the difficult housing situation that the family faced. Two days later the possession proceedings were adjourned.
62. The hearing of the claim for possession eventually took place on 13 October 2014. At the hearing, the central issue raised by S was whether the officer signing the statement of truth in the court documents had no authority to do so. Evidence was called on the issue, and subject to lengthy cross examination. The defence based on section 11 of the 2004 Act was mentioned briefly in submissions. The article 8 defence was mentioned in a sentence in S's skeleton argument and not advanced orally. The District Judge did not consider the health of S or DA made an order for possession a disproportionate interference with their article 8 rights (albeit he phrased his rejection of that argument by saying that their article 8 was not engaged); he found LBW was entitled to refuse to conduct a needs assessment of the children until the court made a possession order and that section 11 of the 2004 Act did not provide a defence to the claim following the decision of the Court of Appeal in Huzrat v Hounslow LBC.

Discussion

63. The case for the appellants below, and as advanced in their grounds and skeletons for these appeals, is that section 11 gives rise to a free-standing duty. The appellants' skeleton arguments, which are in almost identical form, say for example that the respondents were in breach of section 11 because they have never identified the best interests of the children concerned, and the lack of assessment meant their interests have not been treated as a primary consideration. The analysis in Castle precludes such an argument. In short, the duty cannot be detached from the statutory functions it is designed to secure. Though Mr Knafler fastened briefly on section 190 of the 1996 Act in argument, he faces the difficulty that the appellants have not appealed the determinations made by the judges below that the functions under Part VII were lawfully discharged by each respondent.
64. The more general argument now advanced is that the respondents failed to make appropriate arrangements to have regard to the statutory need when exercising their Part VII functions. The appellants' argument seems to be based on the premise that the respondents were under a duty to conduct Children Act assessments in these cases; and it can be inferred from their failure to do so, that no appropriate section 11 arrangements had been made. To the extent that the argument is self-supporting, I cannot accept it. Insofar as the argument is advanced more broadly, raising questions for example about the respondents' policies or procedures, this formed no part of the appellants' case below, the respondents are not in a position to respond and I do not think it would be right to permit it to be raised as part of this appeal.
65. The appellants' principal case now, as I have said, is that the respondents were under a positive duty to conduct an assessment of the needs of the children in this case, in particular, before issuing a Notice to Quit for the purpose of finding out what the circumstances of the children might be. During the course of argument Mr Knafler was asked what the possible result of such an assessment might be. He accepted that it could not have the effect of converting temporary accommodation into something more permanent. If this were to be the case, the stock of housing for those in need of temporary accommodation would be reduced, and the legislative scheme in Part VII would be undermined. However, he suggested an assessment may, in an appropriate case, lead to a temporary deferral of the service of a Notice to Quit.
66. Quite apart from the difficulty of analysing what the section 11 duty obliges local authorities to do, when the appellants' case is detached from the specifics of any particular function they carry out, and looking at the matter more generally, it would be wrong in my judgment to construe section 11 of the 2004 Act so that it changes the nature or scope of the functions to which it relates: see further, Reg v Northavon D.C. ex p. Smith [1994] 2 AC 402; and also R(G) v Barnet LBC [2004] 2 AC 208; [2003] UKHL 57, where it was said that a reading of section 17(1) of the 1989 Act as imposing a specific duty on social services to provide residential accommodation to individual children in need, would sit uneasily with the legislation in the Housing Acts: Lord Hope of Craighead DJSC at paras 75, 92, and 93, the reverse of the situation which could be said to arise here.
67. Further, as in Collins, it is difficult to see how the section 11(2) duty adds anything material to the article 8 analysis. If it does so, it seems to me, more as a matter of form, rather than substance.
68. Standing back for a moment, if the respondents were required to engage in an assessment of children in homelessness cases under Part VII as Mr Knafler suggests, this would be extraordinarily burdensome in terms of cost and resources and – in the overwhelming number of cases - simply futile. As outlined above, the law already caters for the position of children, it allows for the assessment of proportionality at various stages, it has built into it various periods when any particular facts can be raised which might (in the most exceptional case) bear on the proportionality of an eviction, and mandate a temporary halt of the process, and the legislation, together with the procedural protections available to protect the article 8 rights engaged, provide for such matters to be independently assessed by a court. Hard pressed social workers would be diverted from their vital child protection work in relation to children in need as defined by the legislation, to conduct thousands of child assessments on the off chance that there were exceptional facts, of which the local authority which had already conducted a detailed review of the parent's circumstances was, as yet, unaware, and the parent did not think to raise with the local authority him or herself. If the appellants' argument are correct, then one child might be the subject of any number of such assessments (presumably these would then be required further back into the process). There is moreover an existing duty on the part of local authorities to conduct a Children Act assessment in respect of any child in need, whose parent is likely to lose their accommodation; and local housing authorities and children's services/departments are under a duty to co-operate in any event: see section 10 of the 2004 Act and section 27 of the 1989 Act.
69. Neither M nor S asked for a review within time, and there was no appeal therefore under section 204 of the 1996 Act. Nonetheless in both cases there were various stages when the appellants, who were legally advised, had the opportunity to identify any significant features relating to their position or those of their children which might be relevant to the proportionality of the decisions that they should leave their temporary accommodation and/or the time when they should do so. No such facts were identified at the time, or at any stage during the nearly 2 years in M's case, and 15 months in S's case from the date of their respective section 184 decisions until the possession orders were made. There was nothing to indicate there was any separate or different interest on the part of the children, or any identifiable need other than, like their mothers, for accommodation. The article 8 claims were hardly mentioned, and the dismissal of them has not been appealed. In M's case the Children Act assessment eventually conducted by RBKC identified nothing other than the interests of the household in obtaining accommodation. Indeed, the assessment made clear that from her perspective, the temporary nature of her accommodation was the problem: uncertainty regarding her housing made it difficult for her to make plans for the future, including going to college, it made it difficult for her to make permanent friends, and she felt socially isolated and very lonely.
70. If however, contrary to my view, there was a duty to conduct an assessment as the appellants assert, I do not think these facts show any basis for interfering with the possession orders that were made, as there is no link between the making of those orders, and a failure to conduct such an assessment. It would follow that a failure to comply with such a duty did not give rise to a defence to the claims in any event: see Wandsworth LBC v Winder [1985] AC 461 HL at 509E-F and London Borough of Hackney v Lambourne (1993) 25 HLR 172, at 181.
71. As it is, for the reasons given, I would dismiss these appeals.

Lady Justice Black:

72. I agree.

Lord Justice Longmore:

73. I also agree.

Note 1   The statutory guidance issued by the Secretary of State in 2007 pursuant to section 11(4) of the 2004 Act was “Every Child Matters, Change for Children”. It stated at para 2.4: “The [section 11(2) duty] does not give agencies any new functions, nor does it over-ride their existing functions. It, however, requires them to carry out their existing functions in a way that takes account of the need to safeguard and promote the welfare of children.”     [Back]