Access to Housing outside the Housing Act

HLPA MEETING 19 SEPTEMBER 2007

“Children”

Stephen Cragg, Doughty Street Chambers

S17 Children Act

1. Attempts to use the Children Act 1989 to obtain housing for children in need and their families have often been seen as a way of queue jumping by the families concerned, either because they have been found to be intentionally homeless or because they have insufficient priority in relation to allocation policies to ensure early rehousing.

2. However, “accommodation” is clearly listed in section 17 CA as one of the services that can be provided, so why has it effectively been excluded in many cases?

3. This paper looks at the leading case of Barnet, considers more recent cases to do with the Children Act and accommodation, and looks at recent litigation concerning the interplay between homelessness legislation, the Children Act and the “leaving care” provisions.

The Barnet case in the House of Lords

4. The facts of the three linked cases in R v London Borough of Barnet ex p G[2004] 2 AC 208 can be briefly summarized as follows:-

(a) In A, disabled children living in inadequate council accommodation but without sufficient priority for a housing transfer were assessed under section 17 as needing to be re-housed with their mother.

(b) In G, a homeless disbenefited woman from Holland refused to return there. Local authority offered only to take child into care under section 20 CA if she stayed, rather than accommodate family under section 17.

(c) In W, intentionally homeless mother fell foul of Lambeth’s policy not to offer accommodation under section 17 in such cases for the family but to offer more expensive accommodation to child alone under section 20 CA.

5. Lord Nicholls summarised the nature of the appeals in the first paragraph of the judgment.

1.These three appeals concern the responsibilities of local authorities for the accommodation of children who are in need. The first and principal legal issue relates to the nature and extent of the duty imposed on local authorities by section 17 of the Children Act 1989. The claimants' case is that section 17(1) requires a local authority to assess the needs of a child who is in need and to meet his needs when they have been assessed. The defendant local authorities refute both limbs of this claim. A second issue is whether a local authority may insist on providing accommodation for a child alone, as distinct from a child and his mother, when a child is in need of accommodation and it would cost no more to provide accommodation for both of them.

The result

6. In summary, the majority of the House of Lords (Lords Hope, Millett and Scott) agreed with the Court of Appeal judgments that

(a) section 17 CA is a target duty; therefore

(b) assessed needs in A’s case did not have to be met; and

(c) the policy of offering to accommodate child alone under section 20 was justifiable; but

(d) there was a duty to assess for services under the CA

Section 17

7. Again, Lord Nicholls provides a useful summary of the essential statutory provisions

19.….Section 17 of the Children Act 1989 is the first section in a small group of sections concerning provision of services for children 'in need' and their families. A child is taken to be in need if he is disabled or if, without the provision of local authority services, he is unlikely to achieve or maintain 'a reasonable standard of health or development' or his health or development is 'likely to be significantly impaired': section 17(10). A child without accommodation is a child in need….

20.Section 17(1) prescribes the 'general duty' of local authorities regarding children in need. The general duty of every local authority is to provide a range and level of services appropriate to the needs of such children:

'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.'

  1. … If provided with a view to safeguarding or promoting the child's welfare, the service may be provided for the family of a particular child in need, or any member of his family: section 17(3). The service may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash: section 17(6)….

8. Section 17(10) defines a child as “in need” if he or she :

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 by the local authority

 is likely to have significantly, or further, impaired health or development without the provision of such services

is disabled

9. A child is disabled if he or she 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 disability as may be prescribed…” (s17(11))

10. Lord Hope summed up the majority approach to section 17 (which accorded with the Court of Appeal and High Court view).

91. I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority's area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be guided in the performance of those other duties…

11. Resources were, of course, a major problem for the House of Lords. Lord Nicholls explained

The financial resources of local authorities are finite. The scope for local authorities to increase the amount of their revenue is strictly limited. So, year by year, they must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more money they allocate for one purpose the less they have to spend on another. In principle, this decision on priorities is entrusted to the local authorities themselves. In respect of decisions such as these council members are accountable to the local electorate.

12 The ability of a local authority to decide how its limited resources are best spent in its area is displaced when the authority is discharging a statutory duty as distinct from exercising a power. A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose. A power need not be exercised, but a duty must be discharged. That is the nature of a duty. That is the underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice.

Assessment

12. All of their Lordships thought that, for different reasons, there was a duty (implied or express) in local authorities to assess children in need for services available under section 17 CA.

W and G

13. The Court also rejected W and G’s argument under Art 8 ECHR. This was summarized by Lord Nicholls

If in the particular case it is no more expensive to accommodate parent and child together, and if it is in the child's best interests to live with his parent, this positive duty [under Art 8] requires that the accommodation provided for the child should be for the child together with his parent. Choosing to accommodate the child only in such a case would, it was submitted, be a decision which does not respect the family life of the child or his parent.

14. The issue is not explored in any great depth by the court, even though it was heavily relied upon by W and G in the hearing. Lord Hope sets out the point like this

…. the contracting states have a wide margin of appreciation to determine the necessity of any measures taken in pursuit of the legitimate aim of protecting the child's health and rights, which may vary according to the nature of the issues and interests at stake….It has not been suggested that Part III of the 1989 Act fails, in principle, to meet the requirements of article 8(2). The general duties set out in section 17(1) would seem to be plainly in keeping with these requirements. The question whether decisions taken under Part III are compatible with the child's article 8 Convention rights must, of course, depend on the facts of each case.

15. His Lordship does not, in fact, go on to analyse (and neither do the other law lords) whether the decisions in this case were compatible. Lord Nicholls at least acknowledged the problem of separating mothers from children. He stated:

“…….Mutual enjoyment by parent and child of each other's company is a fundamental element of family life: K and T v Finland (2001) 36 EHRR 255, 287, para 151. The state must act in a manner calculated to allow those concerned to lead a normal family life: Z and E v Austria (1986) 49 DR 67, a decision of the European Commission on Human Rights. If in the particular case it is no more expensive to accommodate parent and child together, and if it is in the child's best interests to live with his parent, this positive duty requires that the accommodation provided for the child should be for the child together with his parent. Choosing to accommodate the child only in such a case would, it was submitted, be a decision which does not respect the family life of the child or his parent. Such a decision by a local authority would be unlawful: section 6(1) of the Human Rights Act 1998.”

What is the position now under s17 CA – statutes and cases.

16. The courts can compel a Children Act assessment. Lord Nicholls and Lord Hope approved R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235; (2001) 4 CCLR 295. We should not underestimate the use of this as a means of assisting people. Many SSD’s do not engage with the assessment process or merely say ‘go and see housing.’ Compulsion of a comprehensive lawful children act assessment can be an encouragement to provide services.

17. For very detailed guidance as to assessment and service provision see Framework for the Assessment of Children in Need and their Families which is cited in almost every judicial review about assessment and provision of services.

18. Recently, failures in the assessment process have been used to strike down a decision not to provide a child with a residential placement pursuant to s17 CA. It was irrational to conclude that an unidentified package of home care could meet a child’s needs (as opposed to a residential placement) without properly assessing needs and setting out what would be in the package: R (oao LH and MH) v Lambeth LBC (2006) 9 CCLR 622. L was a ten year old with autism and other disabilities. His mother felt that she was unable to cope with him at home and wanted him placed in a residential school. The council preferred a package of care at home with L being supported in a local school (which said it could meet his needs) and saw a residential placement as a last resort. It drew up a care plan which reflected this assessment. However, Crane J found that the care plan, other than stating that a “package of care” would meet the needs, failed to include the detail and particularity required by the Children Act 1989, carers’ legislation and associated guidance, and he made a declaration that the council was in breach of its statutory duties.

19. In R (oao Mooney) v Southwark LBC (2006) 9 CCLR 670, Jackson J rejected an application for an order that the Council do “assess the period of time which the claimant and her family can safely and reasonably be required to wait for re-housing and to make provision for them within that period” on the basis that, applying Barnet, s17 could not be relied upon to impose a positive on the Council to re-house the whole family.

20. The co-operation duty between social services and housing may become stronger. Lord Nicholls refers to Section 213A of the Housing Act (inserted by the Homelessness Act 2002)

“If assistance is not forthcoming the court will scrutinise the housing authority's reasons with rigour in a case where the consequence is that a homeless dependent child, not old enough to understand what is going on or likely to be significantly upset by being separated from his parent, would be accommodated separately from his parent.”

21. There is a new duty introduced by the Children Act 2004 which amends s17(4) of the Children Act 1989 (and other sections of the 1989 Act) by incorporating a requirement on the local authority to ascertain the child’s wishes and feelings regarding the services or decisions about the actions to be taken in respect of him or her, having regard to the child’s age and understanding. This brings the 1989 Act into line with article 12 of the UN Convention on the Rights of the Child.

22. Children Act and human rights: in R (on the application of J) v Enfield LBC [2002] 2 FLR 1, the court considered what would happen if the only way of ensuring that human rights were complied with was by provision of s17 services. In the circumstances of that case, separation of the mother and child and the placement of the child into care because of difficulties in acquiring accommodation would be an unjustified infringement of the right to family life under Art 8. If there was no other way to provide such accommodation, s 17 of the Children Act 1989 could be, and would have to be, read compatibly with Art 8 so as to empower the authority to provide financial assistance to enable the mother to secure accommodation.

23. In Blackburn-Smith v Lambeth LBC [2007] EWHC 767 (Admin), the local authority decided to cease providing a mother and her two children with accommodation. The mother was from Jamaica and had overstayed a visitor’s visa. She had two children with a British citizen, but had no contact with the father thereafter. When the mother lost her eligibility fortemporary housing thecouncil assessed the children and decided that she could look after them in Jamaica and the council would pay the fares, or take the children into care if they remained in the UK. Applying the House of Lords’ approach in R (on the application of G) v Barnet LBC [2004] 2 AC 208, Dobbs J found there was nothing in s17 Children Act 1989 which imposed a duty on the local authority to house the children with the mother. The local authority had taken into account all the relevant factors in carrying out assessments. These included taking into account Art 8 ECHR, making enquiries as to provision of care in Jamaica, and the fact that the mother had the capacity to work . The court also said that the council took take into account its finite resources and the needs of others, and the fact that it was not meant to be an alternative welfare agency for those who had been disbenefited.

Section 20 CA, accommodation and leaving care

24. A child will be “looked after” if she has been provided with accommodation for more than 24 hours pursuant to s20 of the CA 1989: see s22(1)(b) CA 1989. “Section 20 CA” accommodation must be provided as a result of a number of things including “the person who has been caring for him being prevented (…for whatever reason) from providing him with suitable accommodation”: s20(1)(c).

25. Recent cases illustrate differing approaches of the courts in pinning a duty under s20 CA on Councils to provide accommodation for children.

26. In R (D) v Southwark LBC[2007] EWCA Civ 182. the Council intervened when a school in its area reported that one of its pupils had suffered violence at the hands of her father and was fearful of returning home. A child protection meeting was called. The father was told not to have contact with the child while investigations took place. He reluctantly agreed to his daughter living with an ex-partner of his who had previously cared for the child. The girl’s mother lived abroad. The council determined that the ex-partner was happy to take the child and provided some support and follow up while child protection issues were pursued. Some months later, however, the new carer asked for foster payments for caring for the child.

27. The council argued that it had merely facilitated a “private fostering arrangement” between the girl’s parents and the new carer, had not “provided” the accommodation and the child thereafter did not become “looked after” by the council, as defined in Part III Children Act 1989. The council, of course, has a duty to maintain a looked after child, for example by providing payments to the foster carer. The Court of Appeal rejected the argument of the local authority and found that the council had provided the accommodation

50. In the present case, the local authority took a central role in making the arrangements for S to live with ED. It directed the school that the father must not be allowed to take S away. It arranged a meeting attended by all the relevant parties. The father was told that he must have no contact with S. Those factors are far more consistent with the exercise of statutory powers by Southwark than the facilitating of a private arrangement. The father consented to the proposed arrangement with ED. S was consulted as to her wishes. Mr Dallas contacted ED to ask her if she would take S in. Mr Dallas delivered S to ED’s home and checked that the arrangements were satisfactory.