England and Wales High Court (Administrative Court) Decisions

A v. The London Borough of Lambeth [2001] EWHC Admin 376 (25th May, 2001)

Case No: CO/3698/2000

Neutral Citation Number: [2001] EWHC Admin 376

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 25^th May 2001

MR JUSTICE SCOTT BAKER

1. This case raises questions about the nature and extent of duties placed on a social services authority under the Children Act 1989, in particular whether it has a duty under Section 17 to meet a need that it has previously identified.

The facts

2. The Claimant is the mother of three children. Two of the children have been diagnosed as autistic, Karl born on 2 February 1994 (aged 7) and Daziel born 21 December 1995 (aged 5). Both children have severe learning difficulties and require constant supervision. The family's accommodation is a two bedroom local authority flat with no outside play area. It is in a dangerous state of disrepair. The family has lived there since 1994 and the Claimant applied for a transfer in 1998 on the basis of the diagnoses of the children.

3. The family was given an overriding priority for a transfer on 21 September 1998 with a recommendation of a ground floor or low level flat with four bedrooms and a garden or a secured play area. On 5 June 2000 the Defendants were unable to say how long it would be before an offer was made, but their computer printout suggested it was likely to be a long time. The Claimant had restricted the areas to which she would be prepared to be re-housed because of the children's education and aftercare provision. The Claimant has been receiving four hours a week assistance from social services for the children. A further Children Act assessment was asked for and this took place on 22 May 2000. It is common ground that the assessment was under Section 17 with particular emphasis on the children's housing needs. There were core assessments for each of Karl and Daziel. They reached similar conclusions. These were that the family needed to be re-housed in appropriate accommodation with a garden. The existing accommodation was overcrowded, damp, unhygienic and dangerous for the boys. There were a number of risk factors. There has been liaison with the housing department but no provision by either department and no indication when any is likely to be made. In the evidence there is a statement from Linda McHugh, a team leader in the housing arm of the Defendants. This statement makes it clear that there has been an unsatisfactory delay in dealing with the Claimant's case. As at 8 February 2001 the family was still on the mainstream housing list but the housing panel was expected to meet shortly to decide whether the case warranted transfer to the emergency list. At the date of the hearing before me that had still, on my understanding, not occurred.

4. The specific needs that have been identified are to be away from the road, to have a garden and to have four bedrooms. There is a desire on the part of the mother, as I have mentioned, to live within a relatively narrowly defined area because of school and after school provision. Understandable though these desires are, they pull in a different direction from the specifically identified needs. In short, it is a tall order for any council to meet in the light of the limited physical and financial resources and the needs of other families.

5. Another assessment under the Carer's Recognition and Services Act 1995 was carried out on a different day by a different assessor. This looked at the Claimant's ability to care for her children. It confirmed the poor housing conditions.

The Law

6. Section 17 of the Children Act 1989 provides, so far as is material, as follows:

"(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 1 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 or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.

(4) The Secretary of State may by order amend any provision of Part 1 of Schedule 2 or add any further duty or power to those for the time being mentioned there.

(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.

(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;

(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or

(c) he is disabled,................

(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed;......."

7. It is common ground that the children in this case are disabled and that the definition of `disabled' is the same as in the case of adults under the National Assistance Act 1948, a point relied on by Mr Gordon in emphasising the similarity of the duties under the two sections. The same definition appears in the Chronically Sick and Disabled Persons Act 1970.

The specific duties in Part 1 of Schedule 2 include:

* Taking reasonable steps to identify the extent to which there are children in need in their area (paragraph 1)

* Taking such steps as are reasonably practicable to ensure that those who might benefit from their services are aware of them (paragraph 1)

* Provision of services for disabled children to enable them to live as normal lives as possible (paragraph 6)

* Taking reasonably practicable steps to enable a child who is not living with his family to live with them or promote contact between them (paragraph 10).

8. It is also of note that paragraph 3 gives a local authority discretion to carry out a Children Act assessment at the same time as various other assessments of the child's needs.

9. It should be noted that Section 17(1) imposes what it describes as a general duty on social services authorities. The duty is defined by two broad objectives (i) to safeguard and promote the welfare of children in need within their area and (ii) to promote the upbringing of such children by their families. The subsection concludes by saying how the duties are to be performed, which is by providing a range and level of services appropriate to those children's needs.

10. Mr Richard Gordon QC, for the Claimant, submits that Section 17, although giving rise to an apparently general duty, in fact gives rise to a specific duty once a need for a service has been assessed. Thus in the present case there is a duty to provide accommodation for the Anderson family. He argues that the position is analogous to that under Section 21 of the National Assistance Act 1948 and relies, in particular, on R v Kensington and Chelsea Royal London Borough Council ex parte Kujtim (1999) 2 CCLR 340. He says that there is conflicting case law on the nature of the duty created by Section 17. R v London Borough of Bexley ex parte B, (2000) 3 CCLR 15, which suggests that the duty is no more than a target duty of the kind identified by Woolf L.J, as he then was, in R v The Inner London Education Authority ex parte Ali (1990) 2 Admin LR 822, should not be followed. However, even if the duty is only a target duty, once a need has been assessed and found to exist the duty crystallises into a specific duty and has to be met. The regulating principle is that once a `general' or `target' duty has been narrowed by way of an assessment of individual need then an individual duty, regardless of the generality of the statutory provision for which the need has been assessed, is triggered. The Defendants' resources or ability in practical terms to meet the need are irrelevant.

11. Mr James Goudie QC for the Defendants submits that the duty under Section 17 has two clearly identifiable features. First it is owed to local children in need collectively and not to individual children, less still their parents. Secondly it is a duty to promote very broad objectives, not to perform particular tasks. This is clear from the language used, the broad aspirational concepts defining the duty and the reference to a group i.e. "children in need in their area". There are two other factors that demonstrate the "target" nature of the duty. The first is the reference in the concluding words of subsection (1) to the provision of a general range of facilities, "a range and level of services," which are to be available for the group, local children in need, collectively. The second is the Secretary of State's default power in Section 84 enforceable by mandamus to require a local authority that has failed to comply with any of the duties imposed on it under the Act to do so.

The terms of Section 17

12. I begin by analysing the structure of Section 17. First, subsection (1) imposes a general duty expressed as a general duty. Secondly the duty is defined two stated objectives or targets. It is a duty to strive rather than to deliver and the objectives are broad, being directed to a wide section of the community, children in need within the authority's area. It appears to be owed collectively rather than individually. Thirdly there is no requirement to perform particular tasks or for particular results to be achieved. This is in notable contradistinction to, for example, Section 21 of the National Assistance Act 1948 which speaks of providing accommodation. I shall return to that section later. Fourthly the subsection concludes by stating how the duty is to be performed, namely by the provision of general facilities. The range and level of the those services is to be appropriate to the same collective group - local children in need - rather than to any individual child.

13. Subsection (2) begins by repeating the duty as a general duty. Then it incorporates Part I of Schedule 2, not to alter the duty but to provide specific duties and powers for its furtherance. A look at Part I shows that it contains a mixture of obligations or duties and discretions. Some of the obligations are qualified by phrases such as "reasonably practicable". Others, for example the duty to keep a register of disabled children (paragraph 2 (1)), are unqualified.

14. Subsection (3), which is very important to the circumstances of this case, enables the authority to extend its service provision to the family of the child in need. But the word may emphasises that this is a discretion rather than an obligation. This subsection provides for the exercise of a discretion under the umbrella of a general duty.

15. Subsection (4) is of particular note because it enables the Secretary of State to add both duties and powers to the armoury already contained within Part I of Schedule 2. Subsection (5), incidentally, contains both a duty in paragraph (a) and a power in paragraph (b).

16. Subsection (6), which is relied on to provide the vires for the provision of accommodation under Section 17, is plainly permissive rather than mandatory because of the word may. Also, it should be noted, it refers not to accommodation as such but to assistance in kind. Nowhere in Section 17 or Part I of Schedule 2 is accommodation specifically mentioned.

17. Subsection (10) contains a broad definition of a child in need which, in inner city areas such as Lambeth, is likely to encompass many children. The definition is framed in such a way as to leave an area of judgment on the service provider whether a particular child falls on one side or the other of the dividing line. Individual views could reasonably vary. This is much more consistent with the target duty than with an absolute duty.

18. The structure therefore of Section 17 in general, and Sections 17(3) and 17(6) in particular (those being the specific subsections invoked by the Claimant) point very clearly to a discretion rather than a duty to provide accommodation in any individual case.

19. Mr Goudie, in my judgment aptly, describes Section 17 as a hybrid provision. It is on the one hand more than a mere power but on the other less than a specific duty to, and enforceable at the behest of, individuals. It may lawfully not be exercised at all in a particular case. It is a general duty to strive for the particular targets identified in Section 17(1).

Part III of the Children Act

20. Part III of the Children Act comprises Section 17 to 30. It is headed "Local Authority Support for Children and Families". For Sections 17 to 19 the sub heading is "Provision of Services for Children and their Families'. Section 17 is, as has been seen, general in nature. Section 18 covers the provision of day care and Section 19 makes provision for review of provision of day care and child minding. Sections 20 and 21 have the subheading "Provision of Accommodation for Children." Section 20 provides a detailed code for, as Pill L.J pointed out in R v Barnet London Borough Council ex parte Foran (1999) 31 HLR 708, permitting a local authority to provide accommodation for any child in need within their area. The Claimant's case is not put under Section 20 which is, Mr Gordon observes, individual specific. It refers to any child in need and creates an immediate duty that precedes any detailed assessment of need. It is aimed at a situation where a child has to be put in care by a local authority and is taken away from its family. The situation in the present case is very different. Here two children need to be re-housed with their carer, something that cannot be achieved under Section 20 which is only for the child and not for other members of the family. The wide power to provide accommodation for the whole family is to be found in subsections 17(3) and 17(6) but it is only a power and not a duty. In any event the Claimant's children do not qualify to be accommodated under Section 20 because they do not meet any of the three criteria in Section 20(1).

21. I do not think it is necessary to recite any of the other Sections in Part III. In my judgment there are a number of features about the statutory scheme in Part III that strongly indicate Section 17 does not create a absolute duty to provide accommodation (with or without any assessment of need for it). These are:

* The Act distinguishes between provision of services (Sections 17, 18) and provision of accommodation (Sections 20 to 23).

* The structure of Section 17 itself.

* The use of the word may in subsections 17(3) and 17(6) (the subsections relied onto accommodate the family).

* Even those sections that do relate to accommodation are qualified with expressions such as "so far as is reasonably practical" (Section 23(7) and 23(8)) and see R v London Borough of Brent ex parte S [1994] 1 FLR 203, 217. It is difficult to see how a general duty advocated in Section 17 could be stronger than the specific duties found in Sections 20 to 23.

* The complaints scheme in Section 26 coupled with the Secretary of State's supervisory functions and default power in Section 84.

* An absolute duty to provide accommodation does not lie easily with the right to request help from a housing authority in Section 27 and that authority's obligation to comply provided doing so does not unduly prejudice the discharge of its own functions.

These features are all much more indicative of the kind of duty described by Woolf L.J as a target duty in Ali.

Other considerations

22. If the Claimant's submission is correct it seems to me that every local authority is under a duty to meet all the needs of every child in need. The definition of a child in need in Subsection 17(10) is a particularly wide one. It would, submitted Mr Goudie, be a Herculean task to discharge a Utopian duty. Volume 2 of the Children Act Guidance and Regulations has this to say at Paragraph 2.11.

"Section 17 and Part I of Schedule 2 to the Act set out in considerable detail the specific duties and powers of the local authorities in relation to support services for children with families. Under S. 17(1) local authorities have a general duty to provide a range and level of services appropriate to the children in their area who are "in need" so as to safeguard and promote their welfare and, so far as is consistent with that aim, promote their upbringing by their families. Local authorities are not expected to meet every individual need, but they are asked to identify the extent of need and then make decisions on the priorities for service provision within their area in the context of that information and their statutory duties."

Whilst this guidance cannot and does not determine the meaning of the Act it does give some insight into the way in which the Act was intended to operate and, as Sedley J pointed out in R v Islington LBC ex parte Rixon (1996) 1 CCLR 119, 123, local authorities are expected to follow the guidance unless they can articulate a good reason for departing from it.

23. But there is a more specific problem with regard to housing. Local authorities have duties to house the homeless and are required to make schemes for the allocation of typically scarce local authority housing. If every time a need was assessed under the Children Act there was a duty to meet that need regardless of the point at which, on the scale of urgency, that particular case fell many housing authoritie's arrangements would be bought to their knees. The selection of tenants is for the housing authority provided they operate within the parameters of the housing legislation. This, it seems to me, is ultimately the fairest way of distributing what is almost inevitably a scarce resource. (see the observations of Auld J in Barnet at 612.

Other Community care Legislation

24. Community care legislation has grown piecemeal though numerous statutes over the last half century. There are many statutes aimed at different targets whose provisions are drawn in differing language. Each Act contains its own duties and powers. Specific duties have to be distinguished from target or general duties and duties from discretions. Sometimes a local authority has several ways in which it can meet an obligation. Some provisions overlap with others and the inter-relationship is not always easy. The Children Act 1989, as the Children Act Guidance points out, was intended to bring together into one statute most of the private and public law about children thereby replacing complex and fragmented legislation. It also draws together local authorities' functions towards children which existed under the Child Care Act 1980, the National Assistance Act 1948 and Schedule 8 of the National Health Service Act 1977. It therefore seems to me that the Children Act's true construction is more likely to be found within its four corners than from the terms of other legislation as submitted by Mr Gordon. Furthermore, this is a field in which it seems to me caution should be exercised before using the meaning of one piece of legislation as an aid to the construction of another. Apart from Section 21 of the National Assistance Act 1948, Mr Gordon laid particular emphasis on the Chronically Sick and Disabled Persons Act 1970 and the National Health Service and Community Care Act 1990.

25. A local authority has power to undertake concurrent assessments under the Children Act 1989 and the Chronically Sick and Disabled Persons Act 1970. S.28A of the 1970 Act provides:

"This Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989 as it applies to persons to whom Section 29 of the National Assistance Act 1948 applies."

The functions under Part III include the duty under Section 17. Mr Gordon submits that the means by which a local authority discharges its duty under Section 2 of the 1970 Act is via Section 17 of the Children Act and that there is no separate Section 2 service for children. I do not accept that this is so. Section 28A is simply the vehicle by which children are brought within the ambit of the 1970 Act. Notwithstanding a local authority can, and frequently does, undertake the two assessments together it is important to keep in mind that they are quite separate undertakings under different statutory provisions with different legal consequences.

26. Mr Gordon submits that a local authority's functions under the Children Act are inextricably linked with those under the National Health Service and Community Care Act 1990. Individual assessment, he submits is at the heart of the local authority's obligations under both statutes. It is true that by Section 7 of the Local Authority Social Services Act 1970 (LASSA) a local authority has a duty to exercise its social services functions under the general guidance of the Secretary of State. But it should be noted that separate LASSA guidance has been issued in respect of assessments under each Act. Again, it seems to me critical to keep in mind the powers and duties of the legislation under which the particular assessment takes place and not transpose the one to the other.

The authorities

27. I have not been referred to and have been unable to find any case that decides that Section 17 gives rise to a specific duty owed to an individual child in need, although it is true that there are some instances where the point has been conceded and where the case has proceeded on that basis: see R v Wigan Metropolitan Borough Council ex parte Tammadge (1998) 1 CCLR 581, 583, R v Lambeth London Borough Council ex parte K (2000) 3 CCLR 141, R v Ealing London Borough Council ex parte C (2000) 3 CCLR 122, 128A. In R v Tower Hamlets London Borough Council ex parte Bradford (1998) 1 CCLR 294 it appears to have been conceded that there was a duty to assess the individual child under Section 17 in order to decide whether to exercise a discretion under that section. The judgment does not, however, contain any analysis of the statute.

28. Mr Gordon relies on a passage from the speech of Lord Templeman in R v North Avon District Council ex parte Smith [1994] 2 AC 402, 410F:

"Failing any acceptable solution it would have been the duty of the social services authority to protect the children of Mr Smith by providing financial assistance towards the accommodation of the family or by exercising the other powers available to the social services under the Children Act 1989"

It should be noted, however, that this was a claim against the housing authority and the issue was whether the housing authority had acted unlawfully in refusing to provide more than temporary accommodation. The observations of Lord Templeman were obiter, a point made by Ward L.J in Re G, unreported (Court of Appeal) 11 April 2000 paragraph 17. The House of Lords said nothing about the precise nature of the social services authority's duties or how, if at all, they might be enforced by the individual child. The applicant had argued that Section 17 imposed a specific duty on the social services authority and the housing authority but the respondent does not appeared to have argued the contrary. It had no need to do so.

29. There are, however, cases that support the contention that Section 17 does not give rise to a specific duty owed to an individual child in need. The genesis of the expression "target duty" appears to be in Ali. Ali was concerned with a different duty namely that on a local education authority under Section 8 of the Education Act 1944. But it was a duty with similar features to that in Section 17 of the Children Act 1989. Woolf L.J described it as the type of duty which is a common feature of legislation designed to benefit the community. He mentioned, as an example, Section 1 of the National Health Service Act 1977. He described it as a "target duty." He said at 828D:

"There are going to be situations, some of which can and others which cannot reasonably be anticipated, where the education provided falls below the statutory standard and the standards which the local education authority would set for itself. It is undoubtedly the position that within the area for which I.L.E.A. is responsible at the present time, the statutory standards and the standards that it would set for itself are not being met but this does not mean that I.L.E.A. are necessarily in breach of their duty under Section 8. The question is whether I.L.E.A. has taken the steps which the statute requires to remedy the situation which exists."

30. However, Latham J, in Bexley was concerned with the Children Act 1989, pointing out that its duties were in general terms. He applied Woolf L.J's description of target duties and said at 22E:

"The relationship between the Children Act 1989 and Chronically Sick and Disabled Persons Act 1970 is an uneasy one. The provisions of the Children Act 1989 are in general terms; and the duties are of a type which Woolf LJ described as target duties in R v Inner London Education Authority ex p Ali (1990) 2 Admin LR 822. An assessment of a disabled child's needs pursuant to paragraph 3 of Schedule 2 to the Act does not appear to give rise to any specific duty pursuant to the Act itself, which is the point made by the respondents. They accept, however, that Section 2 (1) of the Chronically Sick and Disabled Persons Act 1970 will impose a specific duty to provide, for example, practical assistance for a disabled person in his home, if they are satisfied that it is necessary to provide that in order to meet his needs. But, as I have already said, their argument is that no such assessment was made because there was no request for such an assessment. If this is a proper analysis, it would result in an authority being able to avoid the specific duty under the Chronically Sick and Disabled Person Act 1970 by purporting to act simply under the Children Act 1989. The same problem does not arise in relation to adults."

31. In R v London Borough of Barnet ex parte B [1994] 1 FLR 592 Auld J likewise picked up the description target duty pointing out that subject to the general standards set out in Sections 17 and 18 of the Children Act and the general guidance of the Government in its HMSO publications it was up to each local authority's own discretion how it discharged its responsibilities. There was a target duty that was not justiciable in that case. He said at 611:

"Whether it fulfils that general duty, in particular by the provision under Section 18 of appropriate day care for such children, cannot be tested on a child-by-child basis. There will inevitably be instances where the overall provision is appropriate yet not ideal for certain individual children. The particular circumstances of any individual child must, therefore, be looked at in the context of the general "range and level of services" provided. In such an exercise it is essentially a matter for the local authority, not the court, to decide what consideration and what weight should be given to the circumstances of any individual child or children when his or their needs or interests may conflict with the appropriate provision overall."

32. Further support for the Defendants submission is to be found in X (Minors) v Bedfordshire County Council and others [1995] 2 AC 633. That case was not concerned with public law but was a civil action for damages. Lord Bingham M.R. said it was fatal to the Plaintiffs' contentions (1) that the duties imposed on local authorities were framed in terms too general and unparticular to lend themselves at all readily to direct enforcement by individuals; and (2) that the local authorities were accorded so large an area for the exercise of their subjective judgment as to suggest that direct enforcement by individuals was not contemplated. Peter Gibson L.J referred to the unspecific language of what counsel accepted was only a target duty and the ancillary provisions in the Schedule leaving the local authority with wide scope to exercise its subjective judgment.

33. Neither Bexley nor Barnet was referred to in any of the clutch of authorities relied on by Mr Gordon. This is perhaps hardly surprising in the case of Bexley which, although decided in 1995, was not reported until 2000.

34. The nature of the duty in Section 17 was most recently discussed in Re G Court of Appeal (unreported) 11 April 2001. Since it was decided after conclusion of the argument in the present case it has been the subject of recent additional submissions. It is necessary to say a little about it because it has some bearing on the present issues. In that case, B, who was just under 2 years old had lived with his mother, a single parent, in Holland. She was a Dutch National of Somali origin and had been in receipt of state benefits before she came to the United Kingdom. The local authority decided that if she and B returned to Holland he would be properly looked after the social services there. The local authority doubted her reasons for coming to the United Kingdom. When she arrived she stayed first with a friend and then applied unsuccessfully to the housing department. Because she was not habitually resident she was not eligible for housing assistance or income support. The local authority offered to pay their fares back to Holland and also offered to accommodate B without his mother. Neither was acceptable to the mother. It was common ground that apart from refusing to return to Holland the mother was a good mother. There was no issue as to her suitability to look after the child it would not be in B's best interest to be removed from his mother, but if she remained in England he would be placed with foster parents.

35. The case raised the question of the obligations of a local authority under the Children Act 1989 to a child within its area when the parent, without good reason, refused to take the child outside the area where it would be properly looked after. Ward L.J, with whom both the other members of the court agreed, did not use the expression target duty, but observed that the general duty towards children in need in Section 17(1) is performed by providing a range and level of services appropriate to those needs. There is, he said, a power to do one or more of many things to meet the general duty. The word may in Subsection 17(3) and 17(6) emphasised power rather than duty. The widely expressed duty in Section 17(1) to promote the upbringing of children within their families was met by providing financial assistance for the return of the mother and child to Holland. He drew attention to the genesis of Section 17 in Section 1(1) of the Children and Young Person's Act 1963 and the observations of Templeman L.J in Attorney General ex rel Tilley v Wandsworth LBC [1981] 1WLR 845, 857 that the categorisation was of powers not duties. Subsections 17(3) and 17(6) did not impose a duty on the local authority to provide assistance in kind or cash for the mother so as to provide accommodation for herself and B.

36. I accept Re G as authority for the propositions:

i) That there is no duty specifically to exercise any of the individual powers available under Part III of the Children Act 1989 and

ii) That Section 20 does not authorise a local social services authority to provide accommodation for anyone other than the child.

37. Mr Gordon submits that Re G does not assist the Claimant's case, because his fundamental point is that the duty to house the Claimant's family crystallises, as with any other community care duty, once the service user, in this case the Anderson family, has been assessed as needing the service. The duty then compels provision of the service. Re G, he submits does no more than demonstrate a matter that was (a) clear and (b) not in dispute namely that subsections 17(3) and 17(6) confer a power on local authorities to meet the duty under Section 17(1). True, the Defendants can choose which way to meet a need where there is more than one option, but once, as here, the need has been identified and assessed, it must be met.

38. It is correct, as Mr Gordon submits, that nothing was said in Re G that addresses the concept of crystallisation of the duty. But on the other hand it is not a concept which, as far as I am aware, is supported by any other authority in respect of the Children Act. In my view Re G does not support Mr Gordon's argument but is of some assistance to the Defendants in relation to the propositions I have mentioned.

39. It is perhaps too obvious to require stating, but the present case concerns the Children Act 1989, which is of course directed to the welfare of children and is primarily child specific. As Mr Goudie pointed out in argument, there is an obvious difference between the situation of children and that of adults in that all children, other than orphans, have at least one parent who is under a duty to support them and who can receive state benefits specifically for that purpose.

40. The central plank of Mr Gordon's argument is that however one describes the general duty in Section 17, once there has been an assessment that identifies a unmet need, the local authority has a duty to meet it. He submits that in none of the "target duty" cases where the individual was unable to enforce a general duty had there actually been an individual assessment of need for a particular service. While that may be correct, it does seem to me that the converse is also true that no case decides that, following an assessment, Section 17 does give rise to a specific duty owed to a child in need.

41. If Mr Gordon's argument is right and assessment is the all important factor that crystallises the duty from the general to the specific, either there is no enforceable duty to assess in which case local authorities would not assess for fear of landing themselves with commitments they could not afford or, if there is a duty to assess and meet any need identified in the assessment, the duty cannot properly be defined as a general or target duty.

Comparison with Section 21 of the National Assistance Act 1948

42. Reliance is placed on Kujtim for the proposition that it is the individual assessment of need for a particular service that gives rise to the duty to individual service users to meet a need that the local authority has identified. Mr Gordon submits that this is just as true of the target duty type provisions of which Section 21 of the National Assistance Act 1948 is one, as it is of more specifically worded statutes.

43. Kujtim was a case under Section 21 of the National Assistance Act 1948 which provides:

"Subject to and in accordance with provisions of this Part, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements providing -

(a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them....."

44. The Secretary of State has directed local authorities to make such arrangements in relation to persons ordinarily resident in their area and other persons in urgent need of such accommodation.

45. Potter L.J with whom the other members of the Court agreed said in Kujtim at 353A:

"Whilst I accept that a person aggrieved by a breach by a local authority of its duty under Section 21(1)(a) to provide Part III accommodation to persons positively assessed as falling within its provisions may well have no right as an individual to claim damages for that breach, that does not in my view prevent him from seeking or obtaining by judicial review an order requiring the local authority to carry out its duty or a declaration in that respect."

The court did not accept the duty was a mere target duty of the kind identified in Ali.

46. Mr Gordon draws attention to the similarities between Section 17 of the Children Act 1989 and Section 21 of the National Assistance Act 1948. Both sections are general in nature and both refer to a class of individuals rather than specific service users. Section 21 creates no individual duties; the duty only arises when an individual assessment of need has been undertaken. Kujtim has decided that following assessment of a claimant's needs as a person in need of care within the meaning of Section 21(1) (a) the local authority is under a duty (as apposed to having a discretion) to provide him with accommodation so long as his needs remain as originally assessed. The approach, submits Mr Gordon, under Section 17 should be the same under Section 17 as in Kujtim. There is no justification for a different approach.

47. Section 21 has been described as a safety net provision to which, for example, asylum seekers and others can look when all other possibilities of support have been exhausted. Mr Gordon puts great store by the fact that as originally drafted Section 21 applied to everyone who by a reason of age, illness disability or any other circumstances was in need of care and attention but that in its present form is limited to persons aged 18 and over. Children have been taken out and are now catered for by the Children Act 1989 (see paragraph 11(1) Schedule 13). Parliament cannot have intended children to be worse off as the result of the change than comparable adults which, he submits, is the result of the Defendants' construction that Section 17 creates no more than a target duty which does not require to be met following an assessment of need. So, he submits, there is no difference in principle between Section 21 of the National Assistance Act 1948 and Section 17 of the Children Act 1989. What gives rise to the specific duty is an assessment of identified need for services. The target duty at that point crystallises into an individual duty that must be met.

48. In my judgment Section 21 is not comparable to Section 17 and cases decided under Section 21, in particular Kujtim, are of no assistance in construing Section 17. It is clear from the cases that a target duty or duty owed to a class is different from a non-target or specific duty owed to an individual. I draw attention to the following points of distinction between the two sections.

* The language is fundamentally different. There is no comparable generality of wording to Section 21.

* Not only is Section 21 "service specific" being directed to accommodation, but more importantly the duty is owed to each member of the class of persons falling within the Section.

* There are two entirely different sets of statutory guidance (see the Children Act Guidance and Regulations and LAC (93) (10)).

49. Mr Goudie points to a clear distinction between the two different types of wording used in social welfare legislation. The first is a duty to further a general objective or to promote the welfare of a section of the community. The second is a duty to meet a need or make arrangements to meet a need. This distinction was emphasised by Lord Clyde in R v Gloucestershire CC ex parte Barry [1997] AC 584, 610A when referring to Section 2 of the Chronically Sick and Disabled Persons Act 1970. He pointed out that in this field i.e. community care legislation a particular duty giving rise to a right which the individual could enforce in the event of non-performance is not common. Indeed, the only other example there mentioned was Section 117 of the Mental Health Act 1983. To it must now be added Section 21 of the National Assistance Act 1948. Section 17 of the Children Act 1989 falls squarely within the other category.

50. The answer to Mr Gordon's point about children having been taken out of Section 21 of the 1948 Act is that Children Act assessments under the 1948 Act were child specific; they did not apply to the whole family. There was never a power, still less a duty to accommodate the child and his entire family. Nowadays Section 21 is a safety net. It only applies when all else has failed. But the child's protection that used to exist under Section 21 has not been taken away altogether. For there is a provision in not dissimilar terms in Section 20 of the Children Act which says that a child in need must be accommodated. This is no mere target duty; it is a specific duty and it arises quite independently of Section 17. The problem for the Claimant's argument is that it relates only to the child and not to his family (see Foran). I do not think there is anything to which an adult would be entitled under Section 21 that a child would not, in similar and appropriate circumstances, be entitled to under Section 20. The duty to accommodate under Section 20 arises only following assessment of need under that Section; it has no separate and independent existence under Section 17.

Conclusion

51. There are, in my judgment, convincing reasons why the Defendants' case is correct. These are in summary the framework of Part III of the Children Act 1989, the particular structure of Section 17 and the way in which the Act fits in with other community care legislation. The point at issue is not conclusively covered by authority, but such authority as there is tends towards the Defendants' construction rather than the Claimant's. Accordingly, the duty owed under Section 17 of the Children Act 1989 is a target duty owed to children in general and is not justiciable by judicial review. It is to be distinguished from a specific duty such as that in Section 20 to provide accommodation for a child in need in certain specified circumstances. But that is not what is sought in this case. What is sought is accommodation for the whole family. While there is a power in the Act for a local authority to provide this by virtue of subsections 17(3) and 17(6), and it is entirely appropriate that the Defendant's should have assessed the Claimant's family to ascertain the extent of its needs, it has no duty in law under the Children Act to meet those needs by providing alternative accommodation. Accordingly, while I have a great deal of sympathy for the Claimant's family, who I think have been less than satisfactorily treated by the Defendants, the court has no power to intervene and compel performance of a duty under Section 17 for no enforceable duty exists in this case. The claim for judicial review therefore fails.

MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this application for judicial review is dismissed.

MR CRAGG: My Lord, I am instructed to seek permission to appeal in this case.

MR JUSTICE SCOTT BAKER: Yes.

MR CRAGG: To start with the two criteria in part 52 that there should be a real prospect of success or some other compelling reason why the appeal should be heard. On the question of real prospect of success, your Lordship will know this is something of a test case. There are other cases awaiting your Lordship's judgment. The crystalisation point that we raised is a novel one, other than the Kujtim case where it was successfully argued. Your Lordship, at paragraph 40 of the judgment, recognises our submission that in no other target duty cases has there been authority of assessment of the particular service to be made.

Your Lordship also recognises at paragraph 27 there are a number of cases where it has been conceded that there are certain duties owed to a child in need, and then lists those cases, including one in the Court of Appeal Ex parte C and including the Wigan case where Forbes J makes the specific link between section 21 and section 17, which your lordship rejects in this case.

My submission is that there is a real prospect of success in arguing what is an important test case on the nature of duties owed in duty cases.

MR JUSTICE SCOTT BAKER: What does Mr Bear say about this?

MR BEAR: My Lord, I am afraid I do oppose that application. I do not for one moment challenge the importance of the case. I am sure your Lordship is well aware of that, and as your Lordship I am sure knows, its importance can be illustrated by the fact that there are a number of other permission applications which are currently awaiting this judgment. But your Lordship still has to apply the tests and I say, with respect, that your Lordship has analysed the matter in several stages, looking at the text of the statute, the structure, the surrounding legislation and the authorities, and I am putting it, no doubt, rather simplistically. On each of those areas, as I read your Lordship's judgment, your Lordship has concluded that the answer is in Lambeth's favour and furthermore within each of those areas, as we respectfully read your Lordship's judgment, your Lordship has come down to what might be called a further conclusion. So it is not one of those cases, at any rate as we interpret your Lordship's judgment, where the matter, after full consideration, of course, turned out to be a finely balanced one. Your Lordship knows better than I what processes led to that.

MR JUSTICE SCOTT BAKER: Yes.

MR BEAR: But we say that this is perhaps a matter where the question of permission might be more appropriately considered by the Court of Appeal and if they think that there is some challenge to what we say in respect of it, there is a thorough investigation of the statutory construction, so it is----

MR JUSTICE SCOTT BAKER: But on the other hand the point has been conceded in a number of cases. There was certainly a perception that--

MR BEAR: Yes.

MR JUSTICE SCOTT BAKER: --there was an enforceable duty.

MR BEAR: Yes.

MR JUSTICE SCOTT BAKER: And although I nearly always leave it to the Court of Appeal to decide what cases they want to hear, I do think it is arguable that this case comes into the compelling reason category to have this matter resolved and if it is going to go to the Court of Appeal it is probably better it should go sooner rather than later.

MR CRAGG: My Lord, I think that would be in everyone's interests including the respondents.

MR JUSTICE SCOTT BAKER: Yes.

MR BEAR: Yes, my Lord, I couldn't, of course, dissent from the force of what your Lordship says.

MR JUSTICE SCOTT BAKER: Yes. Well, I am going to grant leave to appeal.

MR CRAGG: I am grateful. I was going to make the point of the case being heard sooner rather than later and if there is anything your Lordship can do to speed things along from this end, that would be appreciated by this claimant.

MR JUSTICE SCOTT BAKER: Thank you.

MR BEAR: And the other matter is the question of costs and I ask for an order, obviously the claimant is legally aided and therefore it should be on the usual terms, adjourned generally with liberty to restore.

MR CRAGG: My Lord, I want to make a short point on that, this is a case where there has been no action by the council for several years and in paragraph 3 of your Lordship's judgment your Lordship recognises that and says that there has been unsatisfactory delay in the case. I do not know whether there has been any progress since the case was argued, but in my submission it would be that it would not be right to visit a costs order on this claimant in this circumstance, where her aim was simply to move her case along.

MR JUSTICE SCOTT BAKER: But she is not going to have to pay it, is she?

MR CRAGG: I hope not, but it is always one of those things.

MR JUSTICE SCOTT BAKER: If she wins the lottery, well, it is another matter.

MR CRAGG: It hangs over her head. The other point I make, my Lord, is that, of course, the case is of use to the defendant as well. It is a test case and it is a case which clarifies the defendant's role in these kinds of cases and in my submission----

MR JUSTICE SCOTT BAKER: But we do get pretty strong arguments sometimes the other way around, when the claimant wins that there ought to be no order as to costs because it has clarified an important area of the law.

MR CRAGG: My Lord, yes.

MR JUSTICE SCOTT BAKER: But that has serious consequences from the point of view of those who are publicly funded, or those representing people who are publicly funded, because they get remunerated on a different basis. They do not get a costs order. So I am inclined to think that costs should follow the event here. So I will make the usual costs order. I am very grateful to both sides for their very helpful arguments. I am sorry you have had to wait some time for the judgment.

MR CRAGG: I have, of course, forgotten to ask for legal aid assessment.

MR JUSTICE SCOTT BAKER: You can have that, yes.