England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/12/2013

Mr Justice Holman:

The issue

1. Everyone loves a funfair. They are part of the tapestry of our national life. But there would be no funfairs without the travelling families who own the rides and amusements, erect them, man them, and then take them on to the next site or pitch. This case concerns one such family, but all counsel agree and submit that the issue which arises is one of widespread and general importance to all local authorities and many travelling or itinerant families.
2. So far as material, section 17(1) of the Children Act 1989 provides as follows:-

"It shall be the general duty of every local authority …

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) ….,

by providing a range and level of services appropriate to those children's needs."

3. The issue is: does the power of a local authority to provide services under that section to a child, whom they have assessed to be a child in need while he was actually present within their area, include a power to provide services when he is actually outside their area (but still within England and Wales) ?
4. The claimant says that it does. The Worcestershire County Council say that it does not. The issue and the case are of obvious importance to the children in many itinerant and traveller families. Many of them have the protected characteristic of race (which includes ethnic origins) for the purposes of the Equality Act 2010, being of Romany Gypsy or Irish Traveller origin. So the Equality and Human Rights Commission were granted permission to intervene and have made powerful submissions independent from, but supportive of, the case of the claimant.
5. I have been greatly assisted by, and am very grateful for, the cogent and sustained arguments of Mr Chris Buttler on behalf of the claimant; Mr Andrew Sharland on behalf of the defendants, Worcestershire County Council ("the local authority"); and Mr Jan Luba QC on behalf of the Equality and Human Rights Commission (the Commission).

The facts

6. The claimant is a three year old boy who is unlikely to know anything at all about this case. His litigation friend is his father, whom I will call the father so as to protect the anonymity and privacy of the claimant. The following summary of the factual context is based in part upon the father's witness statements and in part upon further detail which he gave informally in the courtroom. Although the local authority do not dispute or disbelieve what he so told me, they have had no opportunity to verify it. I stress, therefore, that what follows is a narrative but not any judicial findings of fact.
7. The father says that both he and his wife, who are both British, are of Romany Gypsy ethnicity and that each of them descends from a long line of travelling fairground families (or in the case of the wife, on her maternal side, circus families). He himself is a seventh generation fairground traveller. It is what he and his wife were brought up to and he has been travelling all his life (he is now aged 44). He says that the way of life forms a core part of their family's identity. The family have always travelled and lived in a caravan.
8. His own father has now retired and does now live in a dwelling at a fixed address in Malvern, Worcestershire, which is now the family's base. It is here that the father stores his amusements and equipment during the winter break, and here that he and his wife and children normally reside during the winter break, still living in their caravan but parking it on his father's land.
9. The father owns and runs a helter skelter and a bungee trampoline. Throughout the season he travels with his family to fairs in many parts of England and Wales and also the Channel Islands of Jersey and Guernsey. (It is not suggested that any power or duty under section 17 extends to periods when the claimant is in the Channel Islands). They go to ancient "chartered fairs", first established under Royal Charter, and to more recent but still long established fairs such as Ringwood Carnival in Hampshire, and to other more ad hoc events. The father has exhibited a specimen itinerary for a typical year, now at bundle page B 8. This shows them passing through the areas of sixteen different local authorities (plus the two Channel Islands). Sometimes they may go more than once to the area of a given local authority, including three visits to fairs in Worcestershire itself. The total area travelled extends to Derbyshire in the North, Greater London in the South East, Somerset in the South West, and parts of Wales. The duration in any one place or within the area of any one local authority may be as little as a few days or as long as two or sometimes three weeks. They live in their caravan and are frequently on the move. It must be a hard life and a hard working one, but it is a good life and an honourable one, which brings fun and joy to many people. And it is the life of the family's culture and choosing.
10. The parents have three children. Their daughter is aged 6 and is healthy. They have identical twin sons, now aged 3. One has certain medical problems but is not the subject of these proceedings. The other is the claimant. He has Down's syndrome and other complex medical problems, with developmental delay. Both he and his family need many forms of help. Some is medical. Some is educational. Some is forms of social care, within the province of the local authority. The local authority do not dispute at all, but readily agree, that he is a child "in need" for the purpose of section 17 and that he and his family are genuinely very needy because of his condition.
11. A local authority "Initial assessment" dated 6 July 2012, now at bundle pages F 10 - 13 records "[The parents'] lives have been turned upside down since the birth of their boys … [The claimant] from his diagnosis meets the children with disabilities criteria …" Under the heading "Analysis, recommendations and decision" the social worker, Miss Chloe Wilson, considered "a variety of supports". These included the funding of respite breaks, to give the mother a rest and time to spend with the other children. Miss Wilson, who is clearly sympathetic and responsive to the needs of the claimant and his family, wrote "We did also discuss whether social care would give agreement for a set number of hours to travel with them so they could put him into a nursery if the family stayed in the same place for a few weeks …. If this provision could travel with them this would mean the family would receive a regular break from [the claimant's] demands." This is a reference to the local authority providing funding for a set number of hours which would actually be expended upon a nursery or similar respite care when they were travelling in a different area, for example in Hampshire. The final "Recommendations" of Miss Wilson at bundle page F 12 were "That social care consider funding a nursery placement of 5 hours per week and consideration is given to when [sic] these hours could 'travel' with him and the family."
12. The "Manager's Decision" is at bundle page F 13. The manager, Mrs Heidi Crampton, was also clearly sympathetic to the plight of the claimant and his family. She wrote that "[The parents] have indeed had a very traumatic year … I admire their commitment to their children and their continued advocacy on [the claimant's] behalf." But she continued: "… I can certainly understand the family's frustration in trying to access a continuation of services across local authority … borders, particularly as traveller culture is integral to the UK. I support the social work recommendation. However … I am not able to continue to agree funding for nursery once the family leaves the borders of Worcestershire County Council. I will agree to further exploring cross-border issues in relation to continuation of services to [the claimant], but am unable to commit at this time. I would therefore agree to fund 5 hours of nursery to [the claimant] whilst he is living within the boundaries of Worcestershire."
13. Pausing there, I have emphasised the words in bold in the above quotation. Mr Andrew Sharland on behalf of the local authority agreed that the words "I am not able to continue to agree" meant and mean that the Worcestershire County Council lack the power to agree.
14. It is worth noting that the "assessment start date" of that merely "initial" assessment was 3/7/2012 (see bundle page F 3) and the completion date was 9/7/2012 (see bundle page F 13), or 7 days inclusive. Sometimes, as they travel around, the family are not even within the area of a given local authority for more than 7 days.
15. The initial assessment was followed by a "Child/Young person in need plan" dated 24 July 2012 (now about three weeks after the "initial" assessment commenced.) This, too, was very sympathetic to the needs of the claimant and his family and recorded that "5 hours per week of nursery has been agreed to be funded by social care for [the claimant], this is for when the family are in Malvern …" The "desired outcome" was "for [the claimant's] parents to receive a regular break from [him] and for [him] to receive some extra stimulation and play opportunities." The plan continued "At the next CYP review [fixed for 4 September 2012] exploration needs to be made about the family's travelling plans to see if social care would consider funding nursery support for the family while they travel."
16. The record of the CYP Review on 4 September 2012 (produced during the hearing but not paginated in the bundle) remained sympathetic to the needs and recommended that the 5 hours per week "is extended to when the family are out of the Malvern area [viz out of county]". The manager's decision was to agree additional hours in county but "I am unfortunately not able to agree funding to travel with the family …"[my emphasis]
17. A "Team around the child meeting" on 8 February 2013 remained sympathetic and recorded "… the conflict for the family in trying to balance the particular needs [the claimant] has, whilst maintaining the business … Parents feel strongly that services are not responsive to their culture and life style and they would like to develop a framework to consistently support [the claimant] around the country." The meeting was chaired by Mr Simon Charles, team manager of the Children with Disabilities Social Work Team. The "Actions", now at bundle page F 24, record that he will discuss with his manager "about the issue re the over-arching "Framework" that is requested by [the claimant's] family in order to address the needs of themselves as a travelling family …" Mr Charles was as good as his word, but the decision of the manager, Mrs Lorraine Berridge, was reported back by Mr Charles in a letter first dated 6 March 2013 and later electronically redated 3 June 2013, now at bundle page B 3. This letter has been identified in the claim form as the decision under review. Mr Charles wrote: "As promised, I am writing with the response from my line manager, Mrs Lorraine Berridge … On those occasions as a Travelling Family where you need to access social care services to support [the claimant] and you are not living within the Worcestershire boundary, you will need to access the 'host' local authority services. These are usually accessed by contacting that local authority's access centre or 'Hub'. Worcestershire County Council would not have any safeguarding responsibilities in respect of [the claimant] when you are temporarily residing outside of Worcestershire… With regard to your view that there needs to be an 'overarching' strategy for Travelling families, this is an issue that I understand you will be taking further and I regret that I am not in a position to advise you …"
18. I note in the above letter that the reference is to the local authority not having any safeguarding "responsibilities" when the claimant is outside Worcestershire. The present issue is, however, whether they have any powers. I note, too, the use of the phrase "temporarily residing outside of Worcestershire". On the facts of this particular case, the local authority appeared to recognise that the claimant does reside in Worcestershire but may "temporarily" reside outside.
19. I have quoted from these minutes and letters at a little length for they so clearly illustrate the issue and dilemma in this case. The Worcestershire County Council are very sympathetic to the needs of this child and family. They recognise he needs forms of social care help and support. They consider they are "not able", or lack any power, to provide any help or support whenever he is out of their area, however briefly; and the parents feel frustrated, let down and, ultimately, unsupported.

These proceedings, permission and the essence of the claim

20. The claimant, through his father, says that the local authority have misdirected themselves as to the geographical reach or extent of their powers under section 17, and he commenced the present claim. There was an issue as to whether it was in time or not. This stems in part from some confusion as to the dating of the 6 March/3 June letter. The case was listed for a so-called rolled up hearing. I readily granted permission in view of the continuing effect upon the very needy and vulnerable claimant of a decision which may affect him and his family for the remainder of his childhood (over 14 years) and of the importance of the case generally, and as I considered that the claim had a realistic prospect of success. The principal remedy sought in the claim form is "a declaration that the defendant's … power to provide services under section 17 … applies to services that may be provided to the claimant when he is outside its [sic] area."
21. I stress that although section 17 itself employs the words "general duty", the issue in this case relates not to duty but to power. The local authority have not decided that they should not provide any services while the claimant is not actually within their area. They have concluded that they have no power to do so and therefore cannot do so. By this judicial review, the claimant, strongly supported by the Commission, seeks to establish that they do have the power to do so. If that be right, then of course the local authority would be under a duty to consider, and would consider, whether or not actually to provide any services when the claimant is not actually within their area, and if so, what services.
22. What the father principally seeks, and hopes that the local authority will provide if they do have the power to do so, are, first, funding to "travel" with the claimant so that he can regularly and rapidly access the 5 hours of respite care (or similar) as he travels around the country; and second, advance and continuing co-ordination by the local authority and the very helpful Miss Wilson with the local authorities on his "itinerary" so that they are expecting the claimant in advance and a point of contact is established in advance with a social worker (or similar person) who already has information about the claimant and his needs and would not need to "reassess" him.
23. The claimant says, and the Commission say, that it is really self evident that a travelling family, such as this family, cannot access services "from scratch" in the area of each different local authority as they pass through it. Any given local authority would not, and indeed could not, start to take action until the claimant actually arrived in their area. If starting from scratch, they would then inevitably and appropriately need to undertake some assessment process before determining that the child is a child in need and what services to provide; and by the time that had happened the family would necessarily have moved on; and so on again and again. I say "necessarily", for this is not a family who choose to wander around at will. They travel in order to work.
24. Mrs Abbie Kirkby, the Advice and Policy Manager of Friends, Families and Travellers (a well regarded charity, in receipt of government and other public funding) puts it thus in paragraphs 23, 26 and 27 of her helpful statement dated 25 September 2013, now at bundle pages B 16 and 18.

"23. It is FTT's position that if service provision for Gypsies and Travellers was coordinated between agencies and between areas, this would go a long way towards meeting the needs of disabled traveller children. This outcome can be achieved in practice if Social Services in different areas worked in a co-ordinated way to an agreed plan, as Department of Health guidance suggests at paragraph 5.2 of the Framework for the Assessment of Children in Need and their Families (2000)…

26. …, although there is a legal framework for the protection of Gypsies and Travellers, principally equality legislation, FTT has not yet seen this translated into the development of practices which ensure that Gypsies and Travellers, and in particular disabled traveller children, receive the services they need.

27. The approach of the Defendant demonstrates this problem. What the Claimant needs is the provision of social care, … whilst his family is travelling. In practice, this requires a public body to coordinate the provision of services by different agencies around the country. But the only public body that could do this, the Defendant, contends that it is unable to assess the Claimant's needs for services outside its area or to coordinate the services to be provided by other local authorities. This needs to change for the Claimant and his family's benefit…"

25. During the hearing, Mr Chris Buttler, on behalf of the claimant, highlighted and emphasised numerous passages in the Government's recent and current statutory guidance "Working Together to Safeguard Children" dated March 2013, which came into effect from 15 April 2013 and replaces earlier similar guidance. I cannot quote it at any length. Paragraph 32 stresses the need for a "holistic" and "integrated" approach. Paragraph 35 stresses that assessments by different agencies need to be "coordinated so that the child does not become lost between the different agencies involved and their different procedures." Paragraph 61 refers to the importance of "continuity and consistency". Paragraph 63 requires that a "local protocol" should "ensure that any specialist assessments are coordinated so that the child and family experience a joined up assessment process and a single planning process focused on outcomes." That (relating as it does to "local protocols") no doubt contemplates a child and family who are settled and static in a given locality and area. But the claimant and the Commission stress that the need for a "joined up assessment" and a "single planning process" applies no less (and arguably more) to a traveller family who are very legitimately on the move; and that if they do not receive one they are being treated less favourably and not receiving equal treatment by the State. So that is the case and justification for coordination by a single local authority and an "overarching framework".
26. In his no less helpful statement dated 24 October 2013, Mr Charles points out some of the difficulties about that approach. At paragraphs 23 and 25, now at bundle pages C 28 and 29 he says:

"23. If the Claimant's suggested interpretation of section 17 Children Act 1989 is correct I am of the view that this is likely to increase the number of disputes between local authorities as to responsibility for travelling children which may well have an adverse impact on their care. On the Claimant's interpretation of section 17, every local authority in whose area the Claimant is ever located has a continuing and concurrent power to provide services pursuant to section 17 Children Act 1989 wherever he is currently located. If a Roma/Gypsy child in need travels to a council's area rather than immediately accepting responsibility for such a child, a council will need to consider whether the child has a "home authority" (whatever that means; it is not a term found in the Children Act 1989) who may have continuing responsibilities towards such a child. There may then be a dispute between the Council and such a "home authority" as to who should provide any services. It is possible that such a child may have more than one "home authority" or no "home authority". This does not appear to be in the best interests of a Roma/Gypsy child in need and I do not believe it is what Parliament intended when it enacted section 17 Children Act 1989 with its emphasis on mere physical rather than, for example, ordinary or habitual residence. Contrary to what is suggested by the Claimant in his grounds I do not believe that the Claimant's suggested interpretation of section 17 either promotes the object of the Children Act 1989 or good administration …

25. I have sought to address my mind to what I would do if, contrary to my understanding, the Council does has a power to provide services pursuant to section 17 Children Act 1989 to the Claimant after he has voluntarily left the Council's area to go travelling … I would exercise … a discretion and decide not to provide … services when the Claimant is outside the Council's area. The primary reason why I would exercise my discretion in such a way is that, in my view, the local authority in whose area the Claimant moves to is in a better position to meet the Claimant's needs when he is physically located there."

27. Clearly, if the local authority do have the claimed power, then it may be relevant for Mr Charles or the local authority to weigh these, as well as many other, factors, including (but not limited to) their duties under the United Nations Convention on the Rights of the Child and under the Equality Act 2010, before deciding whether or not, and how, to exercise the power. In my view the sorts of difficulties to which Mr Charles refers may (I stress, may) be relevant to the exercise of the power. They do not of themselves militate against the existence of the power if that is what Parliament intended to provide and did provide. Further, the reference to "disputes between local authorities as to responsibility for travelling children" is, I regret, a thinly veiled reference to inter-authority funding disputes which featured also towards the end of Mr Sharland's oral submissions on behalf of the local authority. I am indebted to Mr Jan Luba QC, on behalf of the Commission, for the following quotation from an authority decided in 1980 (R v Ealing Borough Council, ex p Slough Borough Council [1981] QB 801 at 808 A – B). Any lawyer will instantly guess who said it.

"To us old folk this is a repeat performance of the disputes under the Poor Law 200 years ago. In those days each parish was responsible for the relief of those who were poor and unable to work. When a poor man moved from one parish to another, the question arose: which parish was responsible? The disputes, Blackstone tells us, 'created an infinity of expensive law-suits between contending neighbourhoods, concerning those settlements and removals'. Many of the cases that came before Lord Mansfield were settlement cases. History tends to repeat itself. If our present cases are anything to go by, we are in for another dose of the same medicine."

28. Whilst I, and the Commission (see paragraph 24 specifically and paragraphs 23 – 31 generally of Mr Luba's written submissions dated 25 November 2013) are deeply conscious that all local authorities are chronically short of funds and resources, it is depressing that another 30 years after Lord Denning uttered those words, and even after such great reforming legislation as the Children Act 1989 and the Equality Act 2010, the first point made by Mr Charles (although almost certainly a true one) is that there is likely to be an increase in the number of disputes between local authorities as to responsibility, viz, bluntly, funding. Mr Sharland's laconic comment was that most judicial reviews boil down to funding disputes, although that is not my personal experience. Many do not.
29. It is right that I should here record that by a recent letter dated 8 October 2013, now at bundle page C33, at 35, the local authority have sought to meet some of the practical aspects of the claimant's case. They say that their completed core assessment can be utilised by all local authorities where the claimant is located to assist them in the exercise of their powers and duties under section 17, so "There will therefore be no need for such other local authorities to carry out any further assessments of [the claimant's] needs." And they have said, very helpfully, that:

"The Council is also willing to assist the various local authorities where [the claimant] and his family will move to during the year. Such assistance would include contacting all such local authorities over the winter period and providing them with an up to date assessment of his needs (once completed) and what provision will need to be made by such local authorities pursuant to section 17 Children Act 1989 when he is within their area together with details of when his family will be in their area."

30. This is, of course, a significant move in the direction of an "over-arching Framework" that was requested and discussed at the Team around the child meeting on 8 February 2013 (see paragraph 17 above) but has never, at least until the recent letter, been clearly offered.

The construction of section 17

31. I will, for convenience, now set out again the material parts of section 17(1):

"It shall be the general duty of every local authority …

(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) …

by providing a range and level of services appropriate to those children's needs."

32. It is common ground that, for present purposes, the words "general duty" should be read as a reference to power. It is common ground that the duty arises, and the power exists, in relation to a person who i) is a child; and ii) is within the area of the relevant local authority; and iii) is in need. Mr Buttler, for the claimant, expressly concedes that the duty and the power can only be triggered when the child concerned is actually present within the area of the relevant local authority. He expressly accepts that the child must be so present while the local authority carry out the necessary assessment process so as to determine whether or not he is indeed a child (not of course in doubt or issue in this case, but quite often a hotly disputed matter); whether or not he is "in need" (again, never in doubt or issue in this case, but it often may be); and if so, the extent of those needs.
33. The issue does not relate, therefore, to the words within paragraph (a). It relates to the final phrase of the sub-section: "by providing a range and level of services appropriate to those children's needs." The words "within their area" are not repeated in that final phrase which deals with the actual provision of services. Mr Sharland, for the local authority, fastens on the words "those children" and submits that that is a reference back to, and merely shorthand for, "children within their area who are in need." He submits that the reference to "within their area" therefore pervades the whole of the final phrase and that the services can only actually be provided if at that time the child is actually within their area.
34. Mr Buttler, for the claimant, accepts that the words "those children" mean "children within their area who are in need", which is why he accepts that the child must actually be within the area when the needs of the child are assessed and decision making takes place as to what services are to be provided. But he submits that there is, strikingly, no reference to the services themselves being provided, or having to be provided, within their area. If the words "within their area" had appeared, or been repeated, after the words "level of services" and before the word "appropriate", then the intention of Parliament would, of course, have been clear. The fact that they do not is, Mr Buttler submits, a clear indication that Parliament did not intend to impose any geographical restriction upon where the appropriate services could be provided.
35. On Mr Sharland's and the local authority's construction there is, in effect, an iron curtain around the boundary of the local authority with a one way services door. Services can of course be brought in from outside, so some specialist person can come in from outside the area of the local authority to provide a service to the child within the area. But, submits Mr Sharland, no service at all can be provided to the child while outside the area. Many examples were discussed during the hearing. Suppose, pursuant to section 17, a care worker is funded and provided to attend daily at a disabled child's home to help him get up, wash or bath, and dress. Continuity, regularity and familiarity might be very important to the child. Then suppose that, for good reason, the child's parents had to spend a short period of time just over the county boundary, perhaps caring for a sick relative, and took the child with them. At once, on Mr Sharland's argument, the provision of the care worker would have (if only temporarily) to cease, even if the distance between the two dwellings was short, and the temporary one no less convenient to the care worker. It is an iron curtain (not Mr Sharland's metaphor, but mine, based on his argument) and the moment the child is out of county, however near by and however temporarily, the service cannot be provided. This is no doubt an extreme, although by no means a fanciful, example.
36. Mr Sharland himself does admit to at least one exception. At paragraph 20 of the skeleton argument on behalf of the claimant, dated 13 November 2013 and co-signed by Mr Buttler and his instructing solicitor, Miss Gwendolen Morgan of Bindmans LLP, they posited a range of situations in which a child in need, who has been assessed while within the area as needing services, may actually require those services to be provided outside the area. The example in paragraph 20(1) is where the child needs a specialist service, for instance some specialist play therapy, which is not itself available within the area. So the child may have to travel outside the area to receive it, so that at the very point of receiving the service he is not a child "within their area." At paragraph 34 of his skeleton argument Mr Sharland referred to the scenario posited in paragraph 20(1) and said:

"The argument misunderstands both the nature of the power under section 17(1) and the council's case. In the factual scenario in paragraph 20(1), the child in question is within the council's area when the need for services arises. Thus, he or she meets the various criteria necessary for a power under section 17(1) to arise (ie. a child in need within the council's area). The council thus has a power to meet such needs. It may meet such needs by providing a service outside the Council's area. This is clear from paragraph 26 of the judgment in Stewart. However, the factual scenario posited in paragraph 20(1) of the claimant's skeleton argument is fundamentally different to the situation in the present case. The claimant is not outside the council's area because the council has provided services to him in another local authority's area. He is outside the council's area because his family, without input or assistance from the council, have left the council's area."

37. Mr Buttler contends that upon the concession made by Mr Sharland in paragraph 34 the iron curtain and indeed the local authority's whole case breaks down. What is relevant is not the reason why the child is not within the area at the time of the provision of the services, but the fact that he is not within the area. It makes no difference whether he is out of the area because he needs to go out in order to receive some specialist service, or because his family are travellers. Either way, there is a power to provide the service while the child is not within the area.

Stewart

38. Both counsel necessarily refer to the authority of Mr Jack Beatson QC in The Queen (on the application of Stewart) v The London Boroughs of Wandsworth, Hammersmith and Fulham, and Lambeth [2001] EWHC Admin 709. The decision and reasoning was stated to be correct and was adopted by Crane J. in The Queen (on the application of Bilkisu Mohammed) v London Borough of Barking and Dagenham [2002] EWHC 2663 Admin, and, I was informed, has never since been questioned or doubted. Mr Sharland relies upon it. Mr Buttler seeks to distinguish it.
39. In Stewart, Hammersmith and Fulham had accommodated the claimant and her children in a hostel owned and managed by Hammersmith but located in Lambeth. Meantime, the children attended a school in Wandsworth. The issue was which of the three local authorities owed the duty under section 17. After considering the three alternative constructions of the words "within their area" which were contended for, Mr Beatson held that the clear meaning of the words "within their area" requires physical presence. He pointed out at paragraph 27 that section 17 does not make any reference to "ordinary residence" and said at paragraph 28 that "Requiring physical presence is a clearer test …" He expressly recognised that a test based on physical presence "may, as in the present case, involve more than one authority being subject to the duty". It should be noted that the conclusion in Stewart, at paragraph 33, was that both Lambeth (where the children slept and resided) and Wandsworth (where they went to school) were under a duty under section 17. Both were ordered to assess the needs of the children, although patently a child could not actually be physically within the areas of both local authorities at any given moment.
40. Mr Sharland argues that the Stewart test of requiring physical presence is dispositive of this case. Mr Buttler accepts the correctness of Stewart, but submits that it is concerned with the duty to assess, not with the geographical reach of the power to provide after an assessment has taken place.
41. On this point I firmly accept and agree with the submission of Mr Buttler. It is because of Stewart, and the language of section 17 itself, that Mr Buttler accepts that the claimant must be physically present within the area of the local authority whilst an assessment takes place and decisions are made as to his needs and what range and level of services appropriate to his needs should be provided. Stewart, the correctness of which I unreservedly accept, says nothing about where those services may be provided.
42. Mr Sharland has argued that Mr Buttler makes an unwarranted distinction between assessment or "the assessment stage" and provision or "the provision stage." It is perfectly true that section 17(1) itself does not make any express reference to that dichotomy or a two staged approach, and does not employ the word "assess", but it is necessarily implicit in it. Until the local authority have established (by some process of assessment) that a person is a child and is in need, the section is not triggered at all. Further, the guidance in Working together to Safeguard Children expressly contemplates stages of assessment and provision, and indeed contemplates at paragraph 57 that an assessment may take up to 45 days. An assessment may be much more rapid than that. If a social worker finds a child abandoned and starving it may take only a matter of seconds to assess that he is a child and is in need. But still, a process of assessment, however rapid, precedes the triggering of the power to provide, and the provision of, services. Further, Stewart itself, upon which Mr Sharland so heavily relies, very clearly distinguishes between assessment and provision. This follows from paragraph 31 where Mr Beatson very clearly distinguished between the duty to assess and the content of the power to provide, and paragraph 29 where Mr Beatson said "The provision is not restricted to services that would be provided by the authority making the assessment."
43. Finally, paragraphs 21 and 25 of the judgment of Munby LJ sitting in the Divisional Court in R(VC) v Newcastle City Council and others [2011] EWHC 2673 (Admin), [2012] 2 All ER 227 plainly distinguishes between the duty to assess and the actual provision of services. The duty to assess arises prior to, and is quite different from, the subsequent power (not necessarily any duty) to provide: see paragraphs 21 and 25.

Other statutory provisions

44. Mr Luba emphasised the provisions of section 17 (5) which, so far as material, provides as follows:-

"(5) Every local authority –

(a) shall facilitate the provision by others …. of services which the authority have power [it is a function of the authority] to provide by virtue of this section …; and

(b) may make such arrangements as they think fit for any person to act on their behalf in the provision of any such service."

[Note that the words in italics remain in force within Wales; the words in square brackets within England, but nothing turns on the different wording, for by section 105 of the Children Act the word "functions" in that Act is defined as including powers and duties.]

45. I agree with Mr Sharland that section 17(5) does not directly impact upon the construction of section 17(1), for section 17(5) is referring to the power/function to provide "by virtue of this section". Whether there is a power or function to provide can only be ascertained by construction of section 17(1) itself, and resort to section 17(5) is merely a circular route back to section 17(1). That said, I also agree with Mr Luba that the presence of section 17(5) is an indicator that by this whole, quite loose textured, section, Parliament deliberately intended to create a wide duty under paragraph (a) to facilitate provision by others, and a wide power under paragraph (b) to delegate by making arrangements, in each case without any geographical limitations or constraints within section 17(5) itself.
46. Mr Buttler placed reliance upon section 27 of the Children Act 1989. This provides as follows:-

"27 Co-operation between authorities

(1) Where it appears to a local authority that any authority mentioned in subsection (3) [which includes any local authority] could, by taking any specified action, help in the exercise of any of their functions [viz including powers and duties] under this Part [which includes section 17], they may request the help of that other authority, specifying the action in question.

(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions."

47. Again, I entirely agree with Mr Sharland that section 27 does not directly impact upon the construction of section 17(1), for the reference in section 27(1) is to "any of their functions under this Part" and so begs the very question of whether the local authority do continue to have a function when the child is not within their area. But I also agree with Mr Buttler that section 27 is a strong indicator that Parliament contemplated and intended that a local authority, A, might exercise their functions and request help while the child was actually within the area of another local authority, B. That appears to be the situation at which section 27 is more naturally aimed, rather than a much more narrow situation of the requesting local authority, A, requesting another local authority, B, to come into the area of A or supply some help to A within the area of A where, on Mr Sharland's argument, the child must ex hypothesi still be physically present.
48. In relation to section 27 Mr Sharland helpfully drew my attention to a passage in R v Northavon District Council Ex p Smith [1994] AC 402 at 409 B – E. There, Lord Templeman expressed agreement with a passage he quoted from the judgment at first instance of Mr Anthony Lester QC. Mr Lester had said:

"Section 27 imposes a duty of co-operation … but co-operation is one thing: the preservation of the separation of powers between public authorities is another. Nothing in section 27 as a whole, or in section 27(2), in particular, enlarges or otherwise amends the powers or duties of the requested authorities under other statutes. … These provisions indicate that Parliament intended that the requesting local authority and the requested authority should co-operate in exercising their respective and different functions, under the relevant statutory schemes. Parliament did not, however, intend that the nature or scope of those respective functions of the requesting local authority and the requested authority should change, as a result of the imposition of a duty to co-operate."

With that I, too, very respectfully agree. Section 27 is indeed concerned, as the heading in the section says, with co-operation. Nothing in section 27 "enlarges or amends" or changes the nature or scope of the functions of the requesting authority. But the practical implications of section 27 greatly illuminate what the nature and scope of those functions are.

49. Section 29(9) of the Children Act 1989 makes express provision with regard to the requested local authority recovering the expenses of complying with a request under section 27(2) from "the local authority in whose area the child … is ordinarily resident …" Section 29(9) does not provide for recovering the expenses from the requesting local authority, but from the local authority in which the child is ordinarily resident which may, of course, be different. Section 30 makes provision for the Secretary of State (or the Welsh Ministers where all the authorities concerned are in Wales) to determine disputes about ordinary residence.
50. Again, section 29(9) is merely part of the machinery of section 27(2) and does not impact upon the construction of section 17(1). But it is another pointer to inter authority co-operation and the possibility of at least three local authorities being involved: the requesting local authority, the requested local authority and, quite possibly differently, the local authority in whose area the child is ordinarily resident. If the child is ordinarily resident in the area of a certain local authority, that local authority must pay the expenses. If the child is not ordinarily resident in the area of any local authority, the cost appears to lie where it falls.
51. I stress that any issue as to whether the claimant is "ordinarily resident" within the area of the Worcestershire County Council has not been fully argued before me on the present judicial review, and I say and indicate nothing at all about it one way or the other. For that reason I pay no regard to the provisions of section 2 of the Chronically Sick and Disabled Persons Act 1970. The effect of section 28A of that Act, which was inserted by the Children Act 1989, is to apply section 2(1) of the 1970 Act with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act. However section 2(1) of the 1970 Act contains the added requirement that the disabled child is not merely within their area (as section 17(1) requires) but is ordinarily resident within their area. In such a case, the local authority may make arrangements for a range of matters, some of which may be and others of which (such as "holidays" under paragraph (f)) probably would be, out of county. That, however, is a range of services provided not under section 17 and Part III of the Children Act, but directly under section 2(1) of the 1970 Act. In my view, therefore, the content of section 2 of the 1970 Act is no indicator at all as to the construction of section 17 of the 1989 Act.
52. I refer finally to the content of Schedule 2 to the Children Act 1989 upon which Mr Sharland appropriately relied. Section 17(2) of the Act provides that:

"(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."

As Mr Sharland stressed, Part 1 of Schedule 2 refers again and again to "children within their area". This is not surprising, since the general duty under section 17(1) unquestionably relates only to children within their area. There is nothing, however, within Part I of Schedule 2 which confines the actual exercise of the specified powers to exercising them within the area of the local authority, or precludes that at the point of exercising the power the child is not within their area.

Outcome and reasons

53. Having described and commented upon the submissions and argument at considerable length, I can now record my conclusion and reasons much more shortly.
54. It is my very clear view that the power under section 17(1) is, as the claimant claims, capable of being exercised outside the area of the local authority and at a time when the child himself is outside their area. My reasons are as follows.

i) As Lord Hope of Craighead said in R (on the application of G) v Barnet LBC and others [2003] UKHL 57, [2004] 2 AC 208 at paragraph 92: "Section 17 refers to a range and level of services appropriate to the children's needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services."

Section 17 confers a broadly expressed, general duty (and power) which, when it relates to the provision of services, should be purposively construed. In using the word "purposively" I am not in any way disagreeing with, or qualifying, what Mr Beatson said in Stewart at paragraph 28 ("Requiring physical presence is a clearer test than a purposive approach …"). He was considering the duty to assess. I am considering the power to provide.

ii) I agree with Mr Buttler that if Parliament had intended to restrict the provision of services to within the area of the local authority while the child was actually physically present within that area, it would have done so by adding the words "within their area" between the words "level of services" and "appropriate".

iii) I disagree with Mr Sharland that the effect of the words "to those children's needs" in the last phrase of section 17(1) is necessarily to restrict the provision of services to within the area.

iv) I agree with Mr Buttler that the authorities and guidance do clearly indicate and recognise that there is a distinction between the duty to assess (which must be while the child is physically within the area) and the power to provide.

v) In my view each of sections 17(5) and 27, whilst not directly impacting on the scope or construction of section 17(1), do strongly indicate that Parliament contemplated and intended that the reach of the powers under section 17(1) does extend to the provision of services outside the area when the child himself is outside the area.

vi) My attention was drawn to the judgment of Dyson LJ, with whom Wilson LJ agreed, in R (on the application of Liverpool City Council) v Hillingdon LBC [2009] EWCA Civ 43, [2009] LGR 289. That case concerned the particular duty of the local authority under section 20 of the Children Act 1989 to provide accommodation for a child in need within their area. At paragraph 13 Dyson LJ described the section 20 duty as "a subset of the general duty created by section 17 …" Although obiter, he was later to say, at paragraph 36:

"36. I emphasise that it would have been possible for Hillingdon, having given due consideration to his wishes and feelings, to reach the conclusion, having regard to his age and understanding, that it was consistent with his welfare to provide him with accommodation in accordance with those wishes and feelings. Indeed, it would have been open to them to provide him with accommodation in the Liverpool area, if necessary invoking s 27 to enlist the help of Liverpool for that purpose."

If the power and duty under section 20 is indeed a subset of that under section 17, then on the facts of that case Dyson LJ was clearly contemplating the power being exercised out of the local authority's area, viz Hillingdon, by accommodating the child in Liverpool where, ex hypothesi, he would physically be. The help of Liverpool could be enlisted under section 27.

55. For these reasons I conclude and hold that under section 17(1) of the Children Act 1989, pursuant to assessments of the claimant's needs made at times when he is actually present within their area, the Worcestershire County Council do have the power, for so long as he remains a child who is a child in need, to provide a range and level of services appropriate to his needs both inside and outside their area, and at times when the claimant is not physically within their area (but is within England and Wales). The power includes the powers under section 17(5) and section 27(1).
56. It follows that Mrs Crampton was mistaken in deciding on 9 July 2012 that "I am not able to continue to agree funding … once the family leaves the borders of Worcestershire County Council." (see paragraph 12 above).
57. I wish to stress very clearly that that conclusion relates to power, not to duties or "responsibilities", which is the word actually used in the letter of 6 March/3 June 2013 (see paragraph 17 above). I am well aware of the very broad reach of my conclusion as to power (although my conclusion is, of course, that it is Parliament which has conferred the power). Theoretically the power does persist for so long as the claimant remains a child who is a child in need, and does extend wherever he may be throughout England and Wales. In deciding whether or not they should exercise the power and whether they have any duty to do so, the local authority will have to take into consideration a very wide range of factors and legal duties. These may include the actual strength of his connection with Worcestershire; how far away he may go from the area; how long it is or will be since he left the area; and, perhaps importantly, whether or not or when he will return.

The European Convention on Human Rights

58. Section 4 of the claim form contains a question "Does the claim include any issues arising from the Human Rights Act 1998?" The claimant's exceptionally experienced solicitors in the field of human rights, Bindmans LLP, ticked the box "No". So I appreciate the surprise and concern expressed by the local authority's solicitor, Mr Lewis Jones, in a letter dated 26 November 2013 (the day before the hearing), when issues under that Act and the Convention, not to mention under the Charter of Fundamental Rights of the European Union, began to appear in the skeleton arguments immediately prior to the hearing. In the case of the Commission, of course, they had only just been given permission to intervene and it was not they who had ticked the box on the claim form.
59. I accept, of course, that irrespective of whether an issue under the Human Rights Act or the Convention is raised by any party or not, the court is bound by its own statutory duty under section 3 of the Human Rights Act. Mr Luba did make some interesting and thoughtful submissions based upon Article 8 of the Convention and certain Strasbourg jurisprudence as to the positive duties of the State under that Article. Section 3 and those submissions of Mr Luba have not weighed with me, for I consider the reach and scope of section 17(1) to be clear for the reasons I have given. I merely record that if Mr Luba be right, the conclusion which I have reached is, in the view of the Commission, one which is compatible with Convention rights.

Last word

60. I have already stressed how sympathetic Miss Wilson, Mr Charles and their managers have appeared, and how supportive they have been, to the plight of the claimant and his family. I sincerely hope that, now that the point in issue has been clarified, they and the father and the family can all work together to achieve a good package of services and support for this child in his family, working cooperatively and collaboratively in a child focused way with any other relevant authorities.