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
		27/07/2016

Mr John Bowers QC :

1. This is the final hearing of the Claimant's application for judicial review, permission having been granted by Leigh-Ann Mulcahy QC on 21 March 2016.
2. The Claimant and his wife have four dependent children now aged between one and nine. He originally applied to the defendant local authority for assistance under the Housing Act 1996 but was found to have become homeless intentionally. He and his family were given notice to quit their temporary accommodation, initially by 4 January 2016 but this period was extended to 31 January. The Claimant challenges the refusal of the social services department to secure further accommodation for the family under section 17 Children Act 1989 pending a full assessment of his children's needs.
3. The claim form included an alternative challenge to the refusal by Defendant housing option service to secure accommodation under section 190(2) Housing Act 1996. That challenge was not pursued before me.
4. The crucial decisions of which complaint is made under the 1989 Act:

a) in a letter of 21 January 2016 refusing to provide accommodation under section 17;

b) in a letter dated 3 February 2016 confirming the refusal of accommodation, notwithstanding that further information had been provided by the Claimant.

5. The Defendant had concluded that the children were not then in need because the Claimant had the resources to find a home before his temporary accommodation from the housing services was due to end. The Claimant contends the later decisions were unlawful because:

a) In light of the Claimant's continued inability to find a home, the subsequent refusals to provide interim accommodation pending a re-assessment of the family's need were irrational. It was said to be inconsistent to assert that the children were "not in need" after that date (letter of 3 February 2016). Moreover it is contended that in the circumstances no reasonable social services authority would have refused to accommodate pending a reassessment;

b) The most recent refusal of accommodation on 3 February was based on a rejection of the veracity of the Claimant's account as to his efforts to secure accommodation. That is said to be procedurally unfair because this was the first time any doubts had been raised about the Claimant's account and he had been given no opportunity to respond. It was contended to be irrational because the Defendant had no adequate basis for rejecting the account.

c) Insofar as the Defendant refused assistance under section 17 on the basis that the children could be placed in care, it is alleged that the Defendant acted in breach of Article 8 ECHR read together with section 11 Children Act 2004.

6. Interim relief was granted on the papers on 5 February and the family remained in their temporary accommodation at the date of the hearing.

FACTUAL BACKGROUND

7. The key dates are as follows:

05/11/15 The Claimant requests an assessment under Children Act 1989 from social services.

11/11/15 The family are visited by a social worker

03/12/15 The Defendant issues a decision confirming that the Claimant is intentionally homeless. The Claimant is given notice to quit his temporary accommodation on 04/1/16

07/12/15 The Claimant's solicitor asks that accommodation be extended by the housing service, alternatively by social services pending the Children Act assessment.

29/12/15 The Defendant "signs off" the Child & Family Assessment (CFA) which states, "The children are not considered to be children in need. Their parents have the means to accommodate and adequately support them"

04/01/16 The Defendant discloses the assessment. Accommodation is extended by the housing service to 10 January "without prejudice"

07/01/16 The Defendant emails stating that accommodation will be extended to 29/01/16

21/01/16 The Defendant issues two decision letters. The housing service state the temporary accommodation will cease on 31/01/16. In a letter dated 15/01/16 social services refuse to accommodate after that date. The letter states the Claimant has the means to secure accommodation and that if he does not do so then the Defendant will "conclude …you lack the sufficient skills to parent and provide for your children appropriately and a Strategy Discussion will be held".

03/02/16 The Claimant served a statement. This sets out the steps he has taken to find accommodation, and states he has been offered a tenancy from 01/04/16. The Defendant's legal team write in response again refusing accommodation and setting out reasons

18/03/16 The Claimant files a second witness statement setting out steps taken to secure accommodation. The offer of a tenancy from 01/04/16 has fallen through

27/06/16 A further offer of a tenancy to commence 01/07/16 falls through.

LEGAL FRAMEWORK

8. Section 17(1) Children Act 1989 states as follows:

(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)-

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

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

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

9. By section 17(3), any service provided under section 17 may be provided for the family of a particular child in need or for any member of his family. Section 17(6) states specifically that the authority may provide accommodation.
10. By section 17(10), a child is defined 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 … of services … [or] (b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services."
11. The key case on the section is R (G) v Barnet LBC [2004] 2 AC 208 where the House of Lords held that:

a) A child who is homeless is a child in need: paras 19, 64, 99, 106, 125.

b) Local authorities are under a duty to assess the needs of any child within their area who appears to be in need: paras 32, 64, 77, 110, 117.

c) The duty to safeguard and promote welfare under section 17 does not however impose any enforceable duty to meet the unmet needs of any particular child, even where those needs have been identified on assessment. Rather it confers a power to provide assistance in any particular case, the refusal to exercise which may be challengeable on the usual reasonableness and proportionality grounds which are available in judicial review: paras 91, 94 (Lord Hope), 106, 110 (Lord Millet), 135-136 (Lord Scott).

Sections 20 and 47 of the 1989 Act

12. Section 20 of the Act provides that "every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of … (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."
13. Section 47 of the Act states that where the authority has reasonable cause to suspect that a child who lives in their area is suffering, or is likely to suffer, significant harm, the authority must make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare. Those enquiries must be directed towards establishing whether the authority should make any application to the court, inter alia for a care order.

Statutory guidance

14. Guidance has been issued under section 7 of the Local Authority Social Services Act 1970 as Working Together to Safeguard Children – A guide to inter-agency working to safeguard and promote the welfare of children (updated March 2015). Authorities are bound to follow it unless there is good reason for departing from it (R v Islington LBC ex p Rixon (1997) 1 CCLR 119).
15. The 2015 Guidance provides that:

"26. Under the Children Act 1989, local authorities are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Local authorities undertake assessments of the needs of individual children to determine which services to provide and what action to take….

29. Whatever legislation the child is assessed under, the purpose of the assessment is always:

to gather important information about a child and family;

to analyse their needs and/or the nature and level of any risk and harm being suffered by the child;

to decide whether the child is a child in need (section 17) and/or is suffering or likely to suffer, significant harm (section 47).

30. Assessment should be a dynamic process, which analyses and responds to the changing nature and level of need and/or risk faced by the child. …A good assessment will monitor and record the impact of any services delivered to the child and family and review the help being delivered.

…

35. High quality assessments: …

are rooted in child development and informed by evidence;

are focused on action and outcomes for children;…

involve children and families;…

are integrated in approach;

are a continuing process not an event;

lead to action, including the provision of services…;

…

44. A high quality assessment is one in which evidence is built and revised throughout the process.

A social worker may arrive at a judgement early in the case but this may need to be revised as the case progresses and further information comes to light.

…

50. assessment is a dynamic and continuous process which should build upon the history of every individual case, responding to the impact of any previous services and analysing what further action might be needed…."

…

Housing Act 1996

16. The duties owed by a local housing authority to the homeless are set out in Part 7 Housing Act 1996. In particular if the authority has reason to believe the applicant may have a "priority need", they must secure interim accommodation pending a decision as to the duty owed: s.188(1).
17. Where an authority are satisfied that the applicant is eligible for assistance, homeless and in priority need, but are also satisfied that the applicant became intentionally homeless, under s.190(2), the authority must "(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 advice and assistance in any attempts he may make to secure accommodation". …(my emphasis)

SUBMISSIONS AND DISCUSSION

18. The Claimant's case is that when these proceedings were issued the Defendant had made no rational assessment of what period would give the Claimant a "reasonable opportunity of securing accommodation".
19. Before turning to the submissions I consider the facts more broadly.

Firstly, the reason that the Claimant is in this position is because he unreasonably refused suitable accommodation offered by LB Wandsworth, which the Claimant claimed had presence of "moulds, damp, trances of rodent infestation". Wandsworth found the property to be in good condition and this decision was upheld by the County Court.

20. Secondly, there is no challenge to the finding in the Child and Family Assessment dated 29 December 2015 ("the CFA") that the Claimant has sufficient resources to rent accommodation.
21. Thirdly, it is now over 6 months since the initial homelessness decision, and during that time the Claimant has managed to secure two offers of suitable accommodation which have both fallen through at very late stage.
22. Fourthly, I express some surprise at the lack of documentary evidence to find accommodation prior to the latter part of January 2016. There are a few text messages and only three emails.
23. Fifthly, I note the information provided to the court as to the availability of accommodation is that as to the availability of 3 bedroomed properties, namely that in the letter of 21 January 2016, The Defendant states 33 customers through HACTRAC had secured 3-bedroom private rented accommodation. Further 101 households have been placed in private rented sector accommodation between April 2015 and March 2016. This indicates that there are indeed suitable properties on the market.
24. Sixthly, there is no need for the Claimant to reside in Greenwich – as set out in the CFA, "Hassan Jalal…seems to have planned to settle in the Royal Borough of Greenwich without making sufficient plans for the family housing".

Decision to refuse accommodation irrational

25. Mr Chataway's first points in submissions suggest that the Defendant local authority took a "head in the sand" approach. He accepts that Section 17 confers a power to assist and not a duty, but emphasises that this is to "safeguard and promote the welfare of children". I accept that as he says this is important in that it provides a key welfare provision of last resort and a residual safety net. Any decision whether or not to exercise the power in these circumstances requires careful and conscientious consideration, with close attention to be paid to the facts of the individual case. The essential question for me to determine is whether the decision taken was irrational since any refusal to exercise the power may be impugned on "the usual reasonableness and proportionality grounds available in judicial review challenges" (Per Lord Scott at para 135 in G), for example where there has been a relevant failure to assess (see e.g. paras 52, 94 and 110). This should also take into account the Guidance referred to above.
26. The Defendant's position as at 3 February 2016 was spelt out in their letter of that date:

"…the council's position remains as previously set out. The council is satisfied that your clients children are not in need and that your client has had sufficient opportunity to secure alternative accommodation."

27. It is this position which it is alleged was irrational in a number of respects which I will consider in turn. I stress that the decision was taken on the basis that the Claimant had had the opportunity to secure alternative accommodation and I emphasise that both parents were in employment although the Claimant's wife was at some time on maternity leave. They also received housing benefit.
28. First, Mr Chataway stresses that by 31 January 2016 the family's booking in their temporary accommodation had been cancelled and they were due to be evicted. The children had no other accommodation to go to, and referring in particular to G at para 19, Mr Chataway says "a child without accommodation is a child in need". He says that it was no answer for the Defendant to assert that by 3 February the Claimant had in the past had sufficient opportunity to secure accommodation. Instead the Defendant's task was to address the current needs of the children and how those needs should be met. I think this would be to take a restricted approach because it is necessary under s190(2) appropriate to consider whether the Claimant had had a sufficient opportunity to secure alternative accommodation. I do not think that the local authority can be expected to ignore how the family had got to this point as Mr Chataway in effect contends. It is indeed entitled to decide as they did that "your client has had sufficient opportunity to secure alternative accommodation" given the time that had elapsed and the lack of effort by the family to find other accommodation. If this were not so it would be open to parents to spend profligately on luxuries (not that I am suggesting that this family did) and ignore the housing needs of the children and then expect the state to provide.
29. Second, the Claimant says that the Defendant's position was self contradictory in any event. They had, in their letter of 15 January, says Mr Chataway stated that:

"If you fail to find accommodation by [31 January], the council will have no alternative but to conclude in light of all the support and assistance you have been provided that you lack the sufficient skills to parent and provide for your children appropriately and a Strategy Discussion will have to be held. This is with the view to a S47 Children Act assessment which could result in your children being accommodated."

30. The Claimant submits that it was not open to the Defendant to say on the one hand that the Claimant lacked the skill to provide for his children, and on the other that the children were "not in need". Whether or not the Defendant considered section 47 inquiries were necessary, the appropriate course says the Claimant was to re-assess the children's manifest needs taking account only of their imminent exclusion from the temporary accommodation and, as per para 26 of the 2015 Guidance, "to determine which services to provide and what action to take".
31. The Defendant's response is to rely on their original Assessment and to argue that there was no duty to re-assess. That argument cannot run say the Claimant because where there is duty to assess it is implicit that there must be a reassessment if circumstances materially change.
32. I do not however believe that there was a material change of circumstance here but merely the passage of time (and an extension of those pre existing circumstances). The fact that the Defendant was apparently having difficulty obtaining accommodation due to his reliance on housing benefit was also considered. There were indeed some tangible steps taken: He was advised to seek properties in a broader area; was given information and advice about their housing situation and landlords who accept housing benefit; and also informed that HATRAC can assist in obtaining properties as well as with a deposit.
33. When the assessment meeting took place on 11 November, the family still had over 7 weeks before their booking in the temporary accommodation was due to end (then 4 January 2016). The conclusion, that "the family have enough funds to obtain their own housing and there should not be any further role or assistance from children services …Father needs to continue actively seeking to secure an accommodation for his family", only makes sense says the Claimant in that context. Indeed the assessment expressly recognised that, "If father is unable to provide accommodation for his family and family became homeless, this would have in effect on the children's well-being". It is however contended that the assessment did not address what action should be taken by social services in that event.
34. I think the Defendant has taken sufficient steps to satisfy their statutory responsibility and I see nothing contradictory about their decision making once it is understood the different times at which decisions were made.?
35. It is also said by Mr Chataway as a further argument that by the time of the further decision letters dated 15 January and 3 February it had become abundantly clear that the family had not been able to secure accommodation. By 15 January letter the 4 January deadline had passed. The booking been extended but to 29 January only. By 3 February the booking had lapsed. Far from removing the need for any future re-assessment, consistency with the original assessment rather required that the Defendant revisit matters if the assumption that the family should be able to secure their own housing proved false. Again I see no need for a reassessment given the underlying facts remained the same (albeit that time had moved on). The Defendant authority might have taken a different approach but what they did was not irrational or Wednesbury unreasonable.
36. The guidance acknowledges that an assessment "responds to the changing nature and level of need and/or risk faced by the child" and judgments in assessment "may need to be revised as the case progresses and further information comes to light".
37. This in my view envisions a 'review' and 'revision' (which happened) rather than a wholesale reassessment. It is this that the Defendant has done in the letter of 3 February 2016. As such the Defendant has I believe complied with its duty pursuant to section 17 of the 1989 Act.

Second ground: Rejection of C's account irrational and procedurally unfair

38. The second ground relied on relates to Defendant's most recent decision letter dated 3 February 2016, in which they set out further reasons for refusing to provide accommodation. By this point the Claimant had been given the assurance of a tenancy at 160 Whitlock Drive, Greenwich, commencing 1 April 2016. In their letter it is said that Defendant made it clear, for the first time, that they did not accept the veracity of information provided by the Claimant. In particular it is contended that they relied on the fact that the Claimant had not provided evidence of local estate agents whom he had visited (para 1); that he had not provided copies of emails sent (para 2); and that he had made no contact with the HATRAC service until the day of his eviction (para 3). They further asserted that he had failed to provide contact details for the landlord for Whitlock Drive (para 4), and that web searches had failed to show the letting agent or any advertisement for the property (para 5). It is notable that in the 21 January letter it does say that "you have provided no evidence of having attempted to find accommodation…"
39. I am not impressed by the Defendant's suggestion that it was unreasonable for them to be expected to contact the Claimant to find out his position (since a telephone call would have sufficed) but I do read the letter of which complaint is made as simply commenting on the assertions in the Claimant's statement. Generally it is important that these everyday procedures are not subject to the general principles of adversarial litigation or the rules of natural justice. This is far from the facts of R (Osborn) v Parole Board [2014] AC 1115 at paras 64 to 68 which was relied on by Mr Chataway or indeed R v LB Hackney ex p Decordova 27 HLR 108 at 113.
40. The urgency with which the letter was drafted must also be taken into account. In any event, read properly in context, the Defendant did not doubt the veracity of the Claimant's statement – it simply found there was insufficient evidence for them to make a positive determination that the Claimant had done all he could to find alternative accommodation for the family. That is a conclusion they are entitled to reach.
41. I accept Mr Chataway's submission that here the court must determine for itself whether a fair procedure has been followed and the inquiry is thus not limited to a Wednesbury review: see R(Osborn) v Parole Board [2014] AC 1115 para 65 but I think that this responsibility has been here satisfied given what I have already decided about the proper reading of the letter. Further it is highly likely that even if the Defendant allowed the Claimant to make further representations it would not have led to a different outcome and therefore Mr Glenister is correct that the Court must refuse relief by reason of the Senior Courts Act 1981, section 31(2A).

Third ground: Breach of Article 8/ section 11 Children Act 2004

42. When proceedings were issued D had made no offer to accommodate even the children alone. They had stated that, "In the event that the family are made homeless and your client has no coherent plans for accommodating his family the council will convene a Strategy Meeting as previously indicated" (letter of 3 February 2016). This would be "with the view to a S47 Children Act assessment which could result in your children being accommodated" (letter of 15 January). The Defendant had been expressly asked to bring forward the strategy meeting in the letter from the Claimant's solicitor dated 29 January 2016. In a response of the same date the Defendant stated that the meeting would be scheduled, but no date was ever arranged.
43. The Claimant thus contends that insofar as the Defendant seeks to rely on the offer of a strategy meeting, and the suggestion that the children might be accommodated on their own, that approach would amount to a breach of Article 8 read together with section 11 Children Act 2004. It is argued that:

a) It is well-established that a failure to provide such basic welfare support as will enable family life to continue may amount to an interference with private and family life within the terms of Article 8 ECHR: Anufrijeva v Southwark LBC [2004] QB 1124 at para 43.

b) It follows that in considering whether or not to provide such support, compliance with section 11 Children Act 2004 required that the Defendant regard the best interest of the Claimant's children as "a primary consideration" and comply with the principles set out at Zoumbas v Home Secretary [2013] UKSC 74.

c) the Defendant manifestly did not comply with those principles. They failed to acknowledge that the best interests of the children were plainly for the family to remain accommodated together. They failed to identify and consider what other considerations could properly outweigh those best interests. Their focus on the issue of whether the Claimant had or had not in the past made sufficient attempts to secure accommodation ran directly against the principle that "a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent".

d) A "Child & Family Assessment" based on an interview with the family carried out on 11 November and "signed off" by the Defendant's social workers on 29 December 2015.

44. It seems to me generally that the outcome, which is what the Defendant has proposed in the present case should the Claimant still not find accommodation, is to accommodate the children but not parents. Such a policy is reasonable: G. Section 11 of the 2004 Act does not add anything material to the article 8 analysis (Mohamoud v Kensington & Chelsea RLBC [2015] EWCA Civ 780).
45. Whilst in principle a failure to provide welfare support can cause a breach of article 8, it is "hard to conceive, however, of a situation in which the predicament of an individual will be such that article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage article 3" (Anufrijeva v Southwark LBC [2004] QB 1124 [AB/86/43]).
46. Provision of accommodation to support the family unit for 10 months is sufficient to discharge the Defendant's obligation under section 6 of the Human Rights Act 1988.
47. For these reasons I dismiss this application.