QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(on the application of AM)
|- and -
|THE LONDON BOROUGH OF HAVERING
THE LONDON BOROUGH OF TOWER HAMLETS
Mr Stephen Knafler QC (instructed by LB Havering Legal Services) for the First Defendant
Mr Rhys Hadden (instructed by LBTH Legal Services) for the Second Defendant
Hearing dates: 17 and 18 March 2015
Crown Copyright ©
The Honourable Mr Justice Cobb:
i) Failed to assess the needs of AM's two children, notwithstanding that the children were living temporarily "within their area" (section 17 Children Act 1989 "CA 1989"); and
ii) Failed to provide suitable interim accommodation to AM, his wife and his two children pending the outcome of that assessment of need.
He seeks relief against the Second Defendant (hereafter "LBTH"), the housing authority which had placed the family in the area of LB Havering, on the basis that it unlawfully:
iii) Failed to make an effective, lawful and timely 'internal' referral (to its own children's services department) and/or 'out-of-area' referral to LB Havering under section 213(1) or section 213A(2)/(3) of the HA 1996; and
iv) Failed to respond timeously to its own referral (section 213A(3) of the HA 1996), and/or secure that accommodation was available to AM and his family pending the assessment of the children's needs by LB Havering (under section 190(2) HA 1996).
i) Which children's services authority should be responsible for assessing the needs of dependent children from a homeless household, and for providing shelter for them pending the outcome of that assessment, and then meeting those needs, in circumstances in which the duties of a local housing authority (for convenience I shall refer to as the "originating authority") towards that homeless household are coming to an end (or have come to an end), and where that family has been placed in another authority's area (the "receiving authority")?
ii) Where housing duties of the originating authority towards a homeless household containing dependent children have come to an end, and a different (receiving) authority is responsible for assessing the needs of those children (and for providing shelter), what is the significance (if any) of the originating housing authority having caused its own children's services authority to begin the process of assessment?
iii) What obligation does the originating housing authority have to the children and/or to the receiving local authority in the arrangements it makes to refer those children's needs for the attention of that different authority?
i) The duty of assessing the needs of homeless children falls primarily on the local authority (children's services authority) for the area in which the children are physically present (even if living there only temporarily) at the material time under section 17 of the CA 1989. In this case, this was LB Havering;
ii) The duty to provide interim accommodation for the children pending the outcome of that assessment is primarily a housing duty and will fall on the local authority (housing department) for the area in which the children are living when the duty arises (section 188 and section 190(1)/(2) of the HA 1996). The exercise of the local authority's functions in this respect is covered by section 11(2) of the Children Act 2004 ("the CA 2004") which requires the housing authority to discharge its functions "having regard to the need to safeguard and promote the welfare of children";
iii) The housing duty will often fall on the same local authority which is assessing (by its children's services) the needs of the child(ren) under section 17 CA 1989; where the family has moved between authorities (as here) during a time when housing authority functions are being exercised, this is not necessarily so. Indeed, on these facts, the housing duty fell on LBTH;
iv) A local authority in whose area there is or appears to be a 'child in need' (i.e. on these facts, LB Havering) has a power (but no duty under Part III of the CA 1989) to provide accommodation for the child and his/her family (section 17(3)/(6) ibid.);
v) Where a housing authority has caused (under section 213A(3) HA 1996) its own children's services authority to commence the process of assessment of a family where it appears that a child in their area is in need (Schedule 2, para.3 CA 1989), in the absence of good reason this assessment, once it has been commenced, should be completed by that authority; in this case LBTH commenced an assessment and should have completed it in liaison with, or as agent for, LB Havering;
vi) There is a clear duty upon an originating local (housing) authority (reading section 208 together with section 213 and section 213A of the HA 1996) to give notice of an out-of-area placement to the receiving housing authority; this should be done "as quickly as possible" ('Homelessness Code of Guidance', para.13.5, see  below) and in any event within 14 days (section 208(4) of the HA 1996), giving relevant information about the family, so that the receiving authority can swiftly assess (and, where relevant, assume responsibility for) the child and/or family. There is a separate duty on the children's services authority of the receiving authority to formulate a timely response (i.e. within one working day) to any referral in relation to a child who appears to be in need (see Working Together to Safeguard Children (March 2013) at Chapter 1 §55: now (March 2015) §58). In this case, LBTH failed to make an effective or timely referral to LB Havering; LB Havering failed to formulate a timely response, and unreasonably concluded that these children did not appear to be 'in need'.
i) Even though it is contemplated, both in practice and under statute (HA 1996), that local housing authorities will perform their housing duties towards the homeless by providing accommodation in their own area (section 208(1) HA 1996, and see Nzolameso v Westminster City Council  UKSC 22), given the shortage of housing stock in some regions (particularly some London boroughs) this is increasingly difficult to achieve, and problems of the kind which have arisen in this case are not uncommon. Each case will inevitably be determined on its own facts, and while I offer some commentary of general application in this judgment, it would be helpful if the London Child Protection Procedures guidance could be reviewed and/or statutory guidance (with draft policy protocols) prepared and made available to local housing and social services authorities in respect of the issues which have arisen here to promote greater clarity in practice;
ii) The issue of who has a duty to assess and provide for children in need has wide ramifications for local authorities, as it does for the children themselves; often there is no easy answer to the question. Persistent and endemic failures on the part of neighbouring local authorities to co-operate with each other in resolving such issues in individual cases have regrettably resulted in vulnerable families (including potentially AM's family) being without support or services. It appears that some local authorities remain impervious to previous judgments of the Courts and cogent guidance offered by the Codes of Practice in this regard;
iii) The local authorities involved here seemed unwilling to contemplate that statutory duties, and powers, in relation to a vulnerable family can be owed by two or more authorities simultaneously. Where this situation arises, there is a particular need for meaningful and effective co-operation between the authorities; it is unacceptable for the authorities simply to stonewall each other while attempting to offload their obligations;
iv) Local authorities (particularly neighbouring London or other metropolitan councils where the movement of families by even short distances may lead to them being in different local authority areas) should proactively devise plans and contingencies to deal with the situation such as has arisen here, including provision for sharing the cost of funding, pending the resolution of such disputes as they arise.
"[AM]'s daughter suffers from seizures and has been diagnosed with epilepsy which is currently under control. Wife has had two C-sections and she appeared to be very emotional and distant to the conversation. When I asked her about her views she did not say much and kept referring me to [AM] who had control of the full [conversation]. Mother appeared to be of low mood and seemed to [me] as though she may be suffering from post natal depression. She was advised to see her GP to discuss her feelings. I asked mother if she wanted to speak to me alone (taken into account the previous DV [domestic violence] disclosures) but she declined…".
"I would recommend that this case is allocated for an assessment as there are concerns around previous DV disclosures and mother presented with low mood and may be suffering from post-natal depression after [giving] birth to her second child … Our last contact in December made recommendations that if mother is to reconcile with father than an assessment will be required. The child suffers from epilepsy…"
"Mum appeared very worried about their housing as they have been told to leave their temp accomm by Thursday 3rd July i.e. in two days time. She looked very tired and depressed and was tearful during the meeting….
…. I called [interpreter] to speak with Mum as I was concerned about her. [Interpreter] advised me that mum feels very worried about their housing, she is not sleeping or eating and is very down…
… I apologised to mum for not having an interpreter with me today, and explained that when we meet again I will have a Bengali speaker with me."
i) 11:33hs: LBTH sent an e-mail to AM's solicitor confirming that LBTH would not extend the temporary accommodation;
ii) 12:50hs: SW2 (LBTH) telephoned the father: "…to explain we have had legal advice that Havering should undertake assessment not [LBTH]. I advised him now to go to CSC in Havering. I advised him I will send an e-mail to Havering now … to alert them to this family";
iii) 14:02hs: AM's solicitor sent an e-mail to LBTH requesting that it grant an extension of the accommodation at least until reasons had been given for the decision not to extend the temporary accommodation;
iv) [Time unknown]: Father telephoned the duty number at LB Havering informing them that he was to be evicted on the following day, 3 July, asking for assistance. The duty social worker ('SW3') referred the father to Family Mosaic (housing association). SW3's note concluded "if the homelessness became apparent consideration for an assessment to be carried out under section 17";
v) 15:03hs: LBTH replied (to the 14:02hs e-mail: (iii) above) refusing to extend the accommodation, and indicated that it will not be responding in more detail;
vi) 15:40hs: SW2 sent a faxed letter to LB Havering in these terms:"I am writing to advise that this family are currently living at the above address. This is temporary accommodation provided by [LBTH] however the booking is due to close tomorrow, 3 July. … I visited the family for the first time yesterday, as I was going to undertake an assessment of the children's needs. I have since been advised by our legal team that responsibility for undertaking an assessment lies with the borough in which the family reside, i.e. Havering. Therefore we will not undertake an assessment in [LBTH].… I have advised [AM] he should approach Havering CSC today in respect of their imminent homelessness. I understand that mum is finding it very difficult to cope, and is not sleeping or eating well…"
vii) 15:47: AM's solicitors sent a letter before action to LBTH (by e-mail) complaining that LBTH had not made the relevant referral to LB Havering under section 213 HA 1996;
viii) 16:20hs: LBTH indicated (by e-mail) that it had properly made the referral to its own children's services department under section 213A HA 1996.
ix) [Time unknown]: following the receipt of the letter from SW2, SW3 (LB Havering) telephoned LBTH and spoke to SW2's manager. The file-note reads:"She [i.e. SW2's manager] said that they [i.e. LBTH] had no previous involvement with the family and no assessment was carried [out]. They received a referral from Housing [at LBTH] on 11 June 2014 and they were advised about the family's homelessness. The case was only allocated to [SW2] this week who initiated the home visit but given the family/children are now living in Havering so they ceased the assessment (as per their legal advice)."I interpolate here to observe that this was obviously misleading; LBTH had had involvement with AM and his family since October 2012. I return to this below.
"[LB Havering]'s position is that this is a clear case of attempting to dump responsibility for assessment and provision by transferring homeless clients out of the borough from which they originate. The family originate from [LBTH]…. As long as the family attend the [CSC] in [LBTH] upon eviction they will have physical presence in that Borough and there could be no doubt in those circumstances that [LBTH] will have responsibility for both assessment and provision."
Notwithstanding the position which LB Havering took later (see  below), the author of this letter appeared to recognise that the 'physical presence' of a family in its area would trigger relevant statutory duties. AM's solicitor replied confirming that the duty fell on LB Havering to assess the family given the physical presence of AM and his family in that borough at that time, "regardless of [LBTH]'s poor behaviour". Later that day, AM's solicitor sent a letter before action to LB Havering.
"This family are from [LBTH]. They retain ordinary residence there, all their connections are there, and if they attended upon [LBTH], [LBTH] would have a responsibility to assess" (emphasis by underlining added)
In the letter of even date to LBTH, LB Havering made the better point (in my view) that LBTH had failed to inform LB Havering "in a timely manner" of the existence of this family in their area, but went on to say that:
"Although we appreciate the family resides (temporarily) in our area, the responsibility remains with [LBTH CSC] to complete the assessment … the family remain 'Ordinarily Resident' in [LBTH]…" (emphasis by underlining added).
(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.
(2) The duty under this section arises irrespective of any possibility of the referral of the applicant's case to another local housing authority (see sections 198 to 200).
(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).
The authority may secure that accommodation is available for the applicant's occupation pending a decision on a review.
'Priority need' is defined in Section 189 of the HA 1996 as including "a person with whom dependent children reside or might reasonably be expected to reside".
(1) This section applies where the local housing authority are satisfied that an applicant is homeless and is eligible for assistance but are also satisfied that he became homeless intentionally.
(2) If the authority are satisfied that the applicant has a priority need, they shall—
(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and
(b) provide him with [(or secure that he is provided with) advice and assistance] in any attempts he may make to secure that accommodation becomes available for his occupation.
(3) If they are not satisfied that he has a priority need, they shall provide him with [(or secure that he is provided with) advice and assistance] in any attempts he may make to secure that accommodation becomes available for his occupation.
(4) The applicant's housing needs shall be assessed before advice and assistance is provided under subsection (2)(b) or (3).
(5) The advice and assistance provided under subsection (2)(b) or (3) must include information about the likely availability in the authority's district of types of accommodation appropriate to the applicant's housing needs (including, in particular, the location and sources of such types of accommodation
(1) So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district.
(2) If they secure that accommodation is available for the occupation of the applicant outside their district, they shall give notice to the local housing authority in whose district the accommodation is situated.
(3) The notice shall state—
(a) the name of the applicant,
(b) the number and description of other persons who normally reside with him as a member of his family or might reasonably be expected to reside with him,
(c) the address of the accommodation,
(d) the date on which the accommodation was made available to him, and
(e) which function under this Part the authority was discharging in securing that the accommodation is available for his occupation.
(4) The notice must be in writing, and must be given before the end of the period of 14 days beginning with the day on which the accommodation was made available to the applicant.
(1) Where a local housing authority—
(a) request another relevant housing authority or body, in England, Wales or Scotland, to assist them in the discharge of their functions under this Part, or
(b) request a social services authority, in England, Wales or Scotland, to exercise any of their functions in relation to a case which the local housing authority are dealing with under this Part,
the authority or body to whom the request is made shall co-operate in rendering such assistance in the discharge of the functions to which the request relates as is reasonable in the circumstances.
(2) In subsection (1)(a) "relevant housing authority or body" means—
(a) in relation to England and Wales, a local housing authority, a new town corporation, a registered social landlord or a housing action trust;
(b) in relation to Scotland, a local authority, a development corporation, a registered housing association or Scottish Homes.
Expressions used in paragraph (a) have the same meaning as in the Housing Act 1985; and expressions used in paragraph (b) have the same meaning as in the Housing (Scotland) Act 1987.
"… and the social services authority ask for assistance in the exercise of their functions under Part 3 of the Children Act 1989." (reference para.36 of the Explanatory Notes to the 2002 Act).
Section 213A provides therefore the arrangements for co-operation in certain cases involving children:E+W
(1) This section applies where a local housing authority have reason to believe that an applicant with whom a person under the age of 18 normally resides, or might reasonably be expected to reside—
(b) may be homeless and may have become so intentionally; or
(c) may be threatened with homelessness intentionally.
(2) A local housing authority shall make arrangements for ensuring that, where this section applies—
(a) the applicant is invited to consent to the referral of the essential facts of his case to the social services authority for the district of the housing authority (where that is a different authority); and
(b) if the applicant has given that consent, the social services authority are made aware of those facts and of the subsequent decision of the housing authority in respect of his case.
(3) Where the local housing authority and the social services authority for a district are the same authority (a "unitary authority"), that authority shall make arrangements for ensuring that, where this section applies—
(a) the applicant is invited to consent to the referral to the social services department of the essential facts of his case; and
(b) if the applicant has given that consent, the social services department is made aware of those facts and of the subsequent decision of the authority in respect of his case.
(4) Nothing in subsection (2) or (3) affects any power apart from this section to disclose information relating to the applicant's case to the social services authority or to the social services department (as the case may be) without the consent of the applicant.
(5) Where a social services authority—
(a) are aware of a decision of a local housing authority that the applicant is ineligible for assistance, became homeless intentionally or became threatened with homelessness intentionally, and
(b) request the local housing authority to provide them with advice and assistance in the exercise of their social services functions under Part 3 of the Children Act 1989,
the local housing authority shall provide them with such advice and assistance as is reasonable in the circumstances.
(6) A unitary authority shall make arrangements for ensuring that, where they make a decision of a kind mentioned in subsection (5)(a), the housing department provide the social services department with such advice and assistance as the social services department may reasonably request.
(7) In this section, in relation to a unitary authority—
- "the housing department" means those persons responsible for the exercise of their housing functions; and
- "the social services department" means those persons responsible for the exercise of their social services functions under Part 3 of the Children Act 1989.
"… in these cases the local housing authority must ensure the local social services authority is made aware of the case, if the applicant agrees. Then, if the social services authority requests the housing authority to provide advice and assistance in exercise of its functions under Part III of the Children Act 1989, the housing authority is obliged to provide the social services authority 'with such advice and assistance as is reasonable in the circumstances'. In the case of a unitary authority the housing department must provide the social services department with such advice and assistance as the social services department may reasonably request".
"Section 213A applies where the housing authority has reason to believe than an applicant with whom a person under the age of 18 resides, or might normally be expected to reside, may be ineligible for assistance, or homeless, or threatened with homelessness, intentionally. Housing authorities are required to have arrangements in place to ensure that all such applicants are invited to agree to the housing authority notifying the social services authority of the essential facts of their case. This will give social services the opportunity to consider the circumstances of the child(ren) and family and plan any response that may be deemed by them to be appropriate".
"Children and young people should not be sent to and fro between different authorities (or between different departments within authorities). To provide an effective safety net for vulnerable young people who are homeless or at risk of homelessness, housing and social services will need to work together."
Further in relation to the person with a priority need who is found to be eligible but homeless intentionally and therefore caught by section 190(2) (see  above), [13.4] and [13.5] of the Guidance provides:
"… there is a possibility that situations could arise where families may find themselves without accommodation and any prospect of further assistance from the housing authority. This could give rise to a situation in which the children of such families might become children in need, within the meaning of the term as set out in s.17 of the Children Act 1989".
"In such cases, it is important that local authority children's services are alerted as quickly as possible because the family may wish to seek assistance under Part 3 of the Children Act 1989, in circumstances in which they are owed no, or only limited, assistance under the homelessness legislation. This will give local authority children's services the opportunity to consider the circumstances of the child(ren) and family, and plan any response that may be deemed by them to be appropriate."
Provision of services for children in need, their families and others.
(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) —
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children's needs.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 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.
(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a) ascertain the child's wishes and feelings regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.
(5) Every local authority—
(a) shall facilitate the provision by others (including in particular voluntary organisations) of services which "it is a function of the authority to provide by virtue of this section, or section 18, 20, 22A to 22C, 23B to 23D, 24A or 24B and
(b) may make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or in cash.
(7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part).
(8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.
(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,
and "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(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; and in this Part—
- "development" means physical, intellectual, emotional, social or behavioural development; and
- "health" means physical or mental health.
Para.1(1): "Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area…"
Para.3(1): "Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs …"
Para.4(2): "Where a local authority believe that a child who is at any time within their area – (a) is likely to suffer harm; but (b) lives or proposes to live in the area of another local authority they shall inform that other local authority."
The nature of the duties
i) Section 17 imposes general and overriding duties on local authorities to maintain a level and range of services sufficient to enable the authority to discharge its functions under Part III of the CA 89: see R(G) v Barnet at [20-21]/[79-85]//;
ii) Section 17 does not of itself generate a targeted, specific duty to an individual child: R(G) v Barnet at ;
iii) Section 17 and Schedule 2, para.1 and para.3 together create a duty on the authority to assess the needs of each child who is found to be in need in their area: R(G) v Barnet at ///117]; R(VC) v Newcastle at ;
iv) Section 17 does not impose a duty to provide services, or accommodation: R(G) v Barnet at ///: "a child in need … is eligible for the provision of those services, but he has no absolute right to them" ; R(VC) v Newcastle at  and ;
v) Any refusal to provide assessed services under Part III of the CA 1989 is amenable to challenge by way of judicial review: R(VC) v Newcastle at ; in this respect, discretionary statutory powers must be exercised to promote the policy objectives of the statute: Padfield V MAFF  1 All ER 694 at 699, and R(J) v Worcester at ; where there is an assessed need for services, any decision not to provide services will be subject to "strict and … sceptical scrutiny": R(VC) v Newcastle at ;
vi) In relation to the provision of housing/accommodation to a child in need, there is a specific and separate statutory code; although the local authority has the power to provide accommodation to a family under section 17, social services departments should not be converted into quasi-housing departments; section 17 is primarily designed to accommodate homeless children, not homeless families; in short, section 17 should not be construed in such a way as to "drive a coach and horses through the housing legislation": R(G) v Barnet at [45-47]//;
vii) Section 1 of the Localism Act 2011 ("a local authority has power to do anything that individuals generally may do") was not intended to be used to override a clear statutory scheme, including that set out in Part III of the CA 1989 in relation to provision of services; it can however be used by local authorities to enter into contracts or leases: R(MK) v LB Barking & Dagenham at [84/85].
Who is a 'child in need'?
viii) The identification of a 'child in need' engages a number of different value judgments, to be determined by asking a range of questions such as "what would be a reasonable standard of health or development for this particular child? How likely is he to achieve it? What services might bring that standard up to a reasonable level?" etc: R(A) v Croydon at ; in the context of providing services, these evaluative questions are better determined by the public authority, subject to the control of the courts by way of judicial review (though see (ix) below); there are no right or wrong answers (ibid);
ix) Assessment of the facts (i.e. whether a child is 'in need') is not readily susceptible to judicial review; where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power: Pulhofer v Hillingdon LBC at p.518;
x) A child without accommodation is a child in need: Northavon ex p Smith at [p.406], R(G) v Barnet at ;
xi) Where there is a dispute of fact (i.e. on the issue of whether a child is a child in need) in judicial review proceedings, in the absence of cross-examination, the facts in the defendants' evidence must be assumed to be correct (Westech at ).
On whom does the duty to assess arise?
xii) The duty is placed on the authority in which the 'child in need' is physically present; the key words of the operative section (section 17(1)) particularly when read with paragraph 4(2) of Schedule 2 are "within their area": Stewart at ; R(M) v Barking & Dagenham at ; (although Bean J in R(HA) v Hillingdon contemplated something other than a "simple geographical test" in order to avoid the 'dumping' cases, he does not state what that is);
xiii) More than one local authority can owe a duty to assess under section 17 to the same child in need who may be physically present in their area, at the same time: Stewart at  (in that case the children attended school in LB Wandsworth and resided in LB Lambeth; both were judged to owe a duty to assess); R(J) v Worcester at .
Co-operation between authorities
xiv) Where more than one local authority is involved in assessing a child in need or offering services, it is essential that they should co-operate with each other and share the burdens: Stewart at ; R(M) v Barking & Dagenham at ;
xv) The basic principle that the duty is owed by the authority of the area in which the child is physically present will not generally operate unfairly against one particular authority; the 'traffic' is not all one way: Stewart at ;
xvi) There should be no passing the child "from pillar to post" while the authorities argue about where he comes from: R(G) v Southwark at [28(3)]; needs should be met first and redistribution of resources should if necessary take place afterwards (R(M) v Barking & Dagenham );
xvii) Specifically in London, local authorities are required under Guidance to "develop and support a culture of joint-responsibility and provision for all London children (rather than a culture of 'borough services for borough children')" (London Child Protection Procedures: 6.1.2)
On whom does the power to provide services fall?
xviii) There is a power in the local authority to provide services to a child in need who was physically present in its area at the time of the assessment, but who had moved outside its area at the time of provision: R(J) v Worcester at ;
Where there is uncertainty, how should section 17 be construed?
xix) Section 17 should be construed in a way which advances the core aims to promote the welfare and best interests of children in need: R(J) v Worcester at ;
xx) Part III of the CA 1989 was intended to reflect the obligation in article 18(2) of the United Nations Convention on the Rights of the Child to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ensure the development of facilities and services for the care of children; see R(G) v Barnet at .
i) The children of AM did not appear to be 'children in need';
ii) If, contrary to (i), they were children in need, they were the responsibility of LBTH, having been physically present in that area when the family travelled back to LBTH to be interviewed at the Shadwell Family Centre on the 6 June 2014 for the purposes of the first Child in Need assessment (see  above);
iii) Section 213A of the HA 1996 (read together with section 190 HA 1996 and section 10 & 11 of the CA 2004) required LBTH housing to refer the family to LBTH CSC, who in turn had a duty to undertake the assessment and/or provide services. Section 213A has effectively overruled the effect of Stewart. This, they maintain, is consistent with the London Child Protection Procedures guidance (5th Edition: 2013).
i) Failed, timeously or properly, to engage with the referral made to it by its housing authority, under section 213A of the HA 1996 in June 2014. As indicated above, nearly a month (2 June – 1 July 2014) went by before an assessment visit was made to the family by a CSC social worker;
ii) Unlawfully abandoned the assessment which had commenced on 1 July on the following day;
iii) Failed to extend the temporary accommodation for AM and his family under section 190(2) of the HA 1996 while the dispute with LB Havering was resolved, having regard to its duties under section 11 of the Children Act 2004;
iv) Failed to give notice (supported by basic information about AM's household) to LB Havering promptly when AM and his family moved to their area on 2 May 2014 (section 208(2)/(3) of the HA 1996).
i) The family were at that point living (albeit in temporary housing) 'within the area' of LB Havering; the decision in Stewart makes abundantly clear the possibility of two (or more) authorities having simultaneous Part III CA 1989 responsibility for a child in need; and
ii) While the provision of education for a child in another area generates a duty on the authority where the school is located (the position of LB Wandsworth in Stewart) it would in my judgment cause considerable confusion if the duties imposed by Part III were deemed to hang on such a tenuous thread as a brief visit (even if by request) to attend an appointment in the area of the originating authority (which, on Mr. Knafler QC's submission may have even been for a purpose unconnected with assessment).
i) A referral had been made to LB Havering CSC from LBTH (albeit appallingly late in the day); where referrals have been made to CSC, "the child should be regarded as potentially a child in need, and the referral should be evaluated on the day of receipt" (London Child Protection Procedures: 2.4.2);
ii) LB Havering acknowledged that "potential safeguarding concerns" arose in relation to the family, necessitating a MASH enquiry (4 July);
iii) Homelessness in itself is a cause for finding that a child is a child in need (see Northavon ex p Smith above);
iv) There were various characteristics of this family plainly pointing to a finding that these were children in need, which had been elicited in the separate introductory assessment sessions undertaken by SW1 and SW2 in LBTH; these included (but were not limited to) the mother's appearance of depression, the history of alleged domestic violence, the older child's history of encephalitis and epilepsy, the age of the younger child (see SW1's assessment on 2 June:  above); the fact that AM's wife was not finding it easy to cope, and was "not sleeping or eating well" should have been known to LB Havering as it was specifically referred to in the referral letter from LBTH of 2 July 2014 (see (vi) above);
v) LB Havering's own 'Inter-Agency' guidance identifies (among a number of relevant factors) in its 'Tier 3' category (identified as 'High or Complex': 'Threshold for Children in Need'), those children where (a) a 'Child has chronic health problems', (b) where there is a record of 'standard/medium' risk of domestic abuse where the child(ren) has/have been in the home at the time of the incident', and (c) where there is a 'homeless child in need of accommodation… / … family at risk of eviction having already received support from Housing Services'; even though these are given as "illustrative examples" only, it is not insignificant that this family's history corresponds with three different criteria;
vi) LB Havering's duty social worker (SW3)'s recorded view on 2 July 2014 was that if the homelessness "became apparent" (sic.) "consideration for an assessment to be carried out under section 17" (see (iv) above).
i) Giving extremely late notice under section 208(2)/(4) and section 213(2) of the HA 1996 to LB Havering of the existence of the family in its area (i.e. not within 14 days of the provision of the accommodation as required by statute, and in any event on the eve of the termination of the accommodation); this late notice was itself unlawful and contrary to the statutory objectives of section 213 and section 213A of the HA 1996;
ii) Failing to give relevant documentation/information to LB Havering for many weeks after the initial request until 12 August 2014 (after these proceedings had been launched) as required of them by statute (section 208(3) of the HA 96);and
iii) Giving obviously misleading information about its involvement with the family at the point of referral on 2 July 2014 (SW2's manager to SW3) (see (ix) above).
Had a true picture been given in good time, there is a real possibility that many of the problems encountered by AM and his family would have been avoided.
i) A housing authority to refer the family to a social services authority or CSC of the district of the housing authority (where that is different), or the social services authority of the same authority (if it is a unitary authority) (section 213A(2)/(3));
ii) A housing authority to provide the social services authority 'with such advice and assistance as is reasonable in the circumstances' to enable that social services authority to fulfil its obligations under Part III of the CA 1989.
Section 213A does not abrogate, or in any other way detract from, the duties which are imposed on that authority, and powers exercisable by the authority, under Part III of the CA 1989; it complements them. As the Homelessness Code of Guidance indicates at 5.13 (see  above) this gives social services the opportunity to consider the circumstances of the child(ren) and family and plan any response that may be deemed by them to be appropriate; para.13.8 of the Homelessness Code makes the additional crucial point that:"Where a family with one or more children has been found ineligible for assistance under Part 7 or homeless … intentionally and approaches the social services authority, that authority will need to decide whether the child is a 'child in need' under the terms of the Children Act 1989, by carrying out an assessment of their needs…".