Judgments - Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant) Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant)

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    89.  It is necessary to pay close attention to the differences between the wording and structure of these two provisions and the context in which they are placed by the respective statutes. Section 21 of the 1948 Act (as amended by section 195 of and Schedule 23 to the Local Government Act 1972, section 108(5) of and Schedule 13 to the Children Act 1989 and section 42 of the National Health Service and Community Care Act 1990) provides:

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

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

    90.  I respectfully agree with Laws LJ's comment, at p 501, para 27, that, where (as in Ex p Kujtim) the Secretary of State has given mandatory directions under section 21(1), it is difficult to see how this provision can be read otherwise than as imposing a concrete duty on the authority to see to it that accommodation is provided for persons assessed as falling within one or other of the classes specified. But the contrast between the wide and general language of section 17(1) of the 1989 Act and the way in which the various other duties in Part III and the specific duties set out in Part I of Schedule 2 which I have discussed above are qualified so as to leave matters to the discretion of the local authority is very marked.

    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: see R v London Borough of Barnet, Ex p B [1994] ELR 357. In that case Auld J considered the guidance issued under section 7 of the Local Authority Services Act 1970 entitled The Children Act 1989 Guidance and Regulations, vol 2: Family Support, Day Care and Educational Provision for Young Children. He observed, at pp 360-361, that the duties under Part III of the 1989 Act fell into two groups, those which are general and those which are particular, and that the general duties are concerned with the provision of services overall and not to be governed by individual circumstances. He referred to the way this point is made in para 2.11 of the Guidance in relation to the duties set out in sections 17 and 18:

    "Local authorities are not expected to meet every individual need, but they are asked to identify the extent of need and then make decisions on the priorities for service provision in their area in the context of that information and their statutory duties."

    As Mr Goudie QC for the respondents accepted, members of that section of the public have a sufficient interest to enforce those general duties by judicial review. But they are not particular duties owed to each member of that section of the public of the kind described by Lord Clyde in R v Gloucestershire County Council, Ex p Barry [1997] AC 584, 610A which give a correlative right to the individual which he can enforce in the event of a failure in its performance.

    92.  A further point is particularly relevant to this case, as the service which is sought is the provision of residential accommodation. The need which the assessment has identified is not for the provision of temporary accommodation only. As the recommendation at the end of the assessment puts it, what this family needs is to be "re-housed". 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. Although the services which the authority provides may "include" the provision of accommodation (see section 17(6)), the provision of residential accommodation to re-house a child in need so that he can live with his family is not the principal or primary purpose of this legislation. Housing is the function of the local housing authority, for the acquisition and management of whose housing stock detailed provisions are contained in the Housing Acts. Provisions of that kind are entirely absent from this legislation.

    93.  We were informed that this is far from being an isolated case of its kind, as about 200 such cases involving children in need had been identified by the respondents in their area in the past 5 months. The expenditure of limited resources on the provision of residential accommodation for housing these children with their families would be bound to mean that there was less available for expenditure on other services designed for the performance of the general duty which section 17(1) has identified. A reading of that subsection as imposing a specific duty on the local social services authority to provide residential accommodation to individual children in need who have been assessed to be in need of such accommodation would sit uneasily with the legislation in the Housing Acts. As Mr Goudie pointed out, it could have the effect of turning the social services department of the local authority into another kind of housing department, with a different set of priorities for the provision of housing for the homeless than those which section 59 of the Housing Act 1985 lays down for the local housing authority.

    94.  There was no failure in this case to assess the needs of the appellant's children: contrast R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235; (2001) 4 CCLR 295. The failure which is alleged is a failure to purchase residential accommodation which is suitable for the children's needs. The order which the appellant seeks is an order that the respondent must provide services pursuant to section 17 to meet their assessed needs and a declaration that the respondent has acted in breach of its statutory duties. Her argument is entirely dependent upon the proposition that the effect of that assessment has been to crystallise the general duty under section 17(1) so that it has become a specific duty owed to A's children as individuals. Troublesome though A's case is in view of the difficulties which the assessment has so carefully identified, I am unable to accept that this approach is consistent with the language of the statute. I would therefore reject the argument which has been advanced under section 17(1), in all three cases.

G v Barnet; W v Lambeth: section 23(6)

    95.  These cases concern children whose mothers were unable to provide them with accommodation unless assisted to do so by the respondents in their capacity as their local social services authority. This is because the local housing authority were under no duty to assist the mothers under the homelessness legislation. The respondents offered to meet the needs of G's child by offering to provide financial assistance to G so that they could return to Holland, but G would not accept this. As a result of interim orders made in these proceedings, the respondents arranged for the family to be provided with bed and breakfast accommodation when it became clear that W and her two children could no longer live in her niece's flat. No formal assessment establishing the needs of the children was made in W's case, but in G's case a child in need assessment form was completed. The appellants' contention is that the respondents were under a duty to meet the children's needs under section 17(1) by enabling them to be brought up by their parents in the same family. They also contend that the respondents were under a duty under section 20(1) to provide accommodation for their children, and that in fulfilment of this duty they were required by section 23(6) to provide the mothers with accommodation so that their children could live with them.

    96.  Section 23(6) provides:

    "Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with -

    (a)  a person falling within subsection (4); or

    (b)  a relative, friend or other person connected with him,

    unless that would not be reasonably practicable or consistent with his welfare."

    97.  The expression "any local authority looking after a child" in section 23(6) has to be read together with section 22(1), which (as amended by section 107 of and Schedule 5 to the Local Government Act 2000) provides:

    "In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is -

    (a)  in their care; or

    (b)  provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970."

    98.  The reference in section 22(1)(b) to children provided with accommodation by the local authority has to be read together with section 20(1), which provides:

    "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 -

    (a)  there being no person who has parental responsibility for him;

    (b)  his being lost or having been abandoned; or

    (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."

    99.  There are, then, four hurdles that the appellants must cross if they are to succeed in their argument. First, they must show that their children are children in need within the meaning of section 17(10). It was not suggested that there would have been any serious room for doubt on this point. Their mothers were unable to provide them with accommodation, and in both cases the children were at serious risk of having no roof over their heads at all. Leaving them to sleep in doorways was not an option in their case. Children who are reduced to this level of destitution are plainly children in need. Their health or development is likely to be significantly impaired if they are not provided with services by the local social services authority: section 17(10)(b).

    100.  The appellants must show, in the second place, that the respondents were under a duty to provide their children with accommodation. Local social services authorities are under a duty to provide accommodation for a child in need within their area who appears to them to require accommodation as a result, among other things, of 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: section 20(1)(c). This provision must be read in the light of the general duties set out in section 17(1). Among these duties there is the duty to safeguard and promote the welfare of the child. At first sight the concept of the carer being prevented from providing the child with suitable accommodation or care does not sit easily with the situation where the carer has chosen to refuse offers of accommodation or other forms of assistance by the relevant local authority. But the words "for whatever reason" indicate that the widest possible scope must be given to this provision. The guiding principle is the need to safeguard and promote the child's welfare. So it makes no difference whether the reason is one which the carer has brought about by her own act or is one which she was resisting to the best of her ability. On the facts, it is plain that the respondents were under a duty to provide accommodation for the appellants' children under section 20(1).

    101.  The appellants must then show, in the third place, that section 23(6) applies to their case. That subsection applies where a local social services authority "are looking after a child." This expression is defined in section 22(1), which provides that any reference in the Act to a child "who is looked after by a local authority" is a reference to a child who is either in their care or is provided with accommodation by the authority in the exercise of any functions referred to the social services committee, including the functions under the Act. As it happens, the situation described in this subsection had not yet been reached in either of these two cases. W had been provided with bed and breakfast accommodation for herself and her children, but this was not accommodation provided to the children themselves within the meaning of this provision. The reference in section 22(1) to the provision of accommodation is a reference to the provision of accommodation for children themselves under either section 20(1) or section 22(1). Nevertheless it is clear that if the stage had been reached where the respondents were fulfilling their duty to provide accommodation for them under section 20(1)(c), the children would have been children who were being looked after by the local authority within the meaning of section 22(1).

    102.  This brings me to the crucial point in this part of the case, which is whether a local authority looking after a child is under a duty to provide accommodation to any of the persons mentioned in section 23(6)(a) and (b), who include the child's parent, to enable the child to live with that person. The duty, as expressed in the subsection, is to "make arrangements to enable" the child to live with any one of the person mentioned. It is qualified by the words "unless that would not be reasonably practicable and consistent with his welfare". The appellants' argument is that among the arrangements that may be made in the performance of this duty is the provision of accommodation to the person mentioned so that the child will be able to live with that person. They also submit, relying on Lord Browne-Wilkinson's observation in R v East Sussex County Council, Ex p Tandy [1998] AC 714, 749C, that neither the cost of doing this nor the availability of resources have any bearing on what is or is not reasonably practicable as to permit this would downgrade the duty into a discretionary power.

    103.  Section 23 deals with children who are being looked after by a local social services authority either because they in the care of the authority (that is to say, by virtue of a care order under section 31(1)) or are being provided with accommodation by it. Detailed provisions are made in section 23(2) as to the various ways in which accommodation may be provided for the child, which include placing the child with a family, a relative or any other suitable person. Section 23(5) provides that, where a child is in the care of a local authority, the authority may only allow the child to live with a parent, a person who has parental responsibility for him or a person in whose favour a residence order was in force before the care order was made in accordance with regulations made by the Secretary of State. These provisions all assume that the person with whom the child is to be placed or the person with whom the child may be allowed to live under section 23(5) already has accommodation which will enable the child to live with that person.

    104.  Section 23(6) appears to have been framed on the same assumption. The context in which it appears suggests that this is so. But the wording of the subsection, and its content, reinforce the argument. The arrangements to which it refers are arrangements enabling the child to live with that person. Nothing is said about providing that person with accommodation. Moreover the duty to make the arrangements to which it refers is not restricted to enabling the child to live with his family. If it had been so restricted there might have been some force in the argument that the duty in this subsection was to be read together with the general duty in section 17(1) to promote the upbringing of the child by his family. But the person with whom the child may be enabled to live under this subsection include relatives other than his parents, friends and other person connected with him: section 23(6)(b). The width of this class of persons indicates that what Parliament had in mind when it was enacting this provision was that these were persons who already had accommodation of their own. The fact that the duty is qualified by reference to what is reasonably practicable and consistent with the child's welfare is entirely consistent with this approach. It permits the local authority to have regard to the nature of the accommodation which that person is able to provide before it takes its decision as to whether, and if so with whom, the child is to be accommodated under this subsection. It is not concerned with the resources of the local authority, because the duty does not extend to the provision of accommodation for that person at its own cost or from its own resources.

Conclusion

    105.  I would dismiss these appeals.

LORD MILLETT

My Lords,

    106.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead, with which I am in full agreement. I add a few words of my own in order to explain why I am unable to accept the conclusion of my noble and learned friend Lord Nicholls of Birkenhead that section 17(1) of the Children Act 1989 imposes a duty on the social services authority in respect of the needs of a particular child. In my opinion it imposes a general and overriding duty to maintain a level and range of services sufficient to enable the authority to discharge its functions under Part III of the Act.

    107.  Section 17(1) contains three indications of the nature of the duty which it imposes. The first is that it is described as a general duty. I agree that this is not decisive by itself. It may be contrasted with the specific duties and powers mentioned in Section 17(2). But it does suggest that what is to follow is a general and comprehensive duty owed to all persons within the authority's area rather than a duty which is owed to particular individuals.

    108.  The second indication is that it is a duty to safeguard and promote the welfare of "children within their area who are in need" and to promote the upbringing of such children by their families. This is couched in terms which suggest that it is a broad and general duty to cater for the needs of all the children concerned, rather than a duty to meet the needs of any particular child. This feature, too, cannot be decisive, for the words can be read as involving a duty in respect of the welfare and upbringing of each child. But it cannot be assumed that they do involve such a duty, for this is the very question to be decided.

    109.  In my opinion, however, the third indication is decisive. The duty is not a duty to safeguard and promote the welfare of the children concerned simpliciter, but to do so "by providing a range and level of services appropriate to those children's needs." A social services authority which provides a range and level of services appropriate to meet the various needs of children in its area has discharged its duty under section 17(1). This cannot be read as a duty to meet the needs of any particular child. It is sufficient that the authority maintains services for which his particular needs make him eligible.

    110.  It does not follow that the social services authority is not obliged to assess the needs of the individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance; and in the present context that involves assessing the needs of the child in order to decide whether and the extent to which the authority will meet his needs. But there is no need to invoke this implied duty; as my noble and learned friend Lord Hope has explained, the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2.

    111.  I would dismiss the appeals.

    LORD SCOTT OF FOSCOTE

My Lords,

    112.  The three appeals before the House require a view to be taken as to the intended function and effect of section 17(1) of the Children Act 1989. The issue, expressed in general terms, is whether the "general duty" imposed by the sub-section on local authorities can, in appropriate circumstances, be treated as a targeted and specific duty owed by the local authority to an individual child. It may well be that the issue thus expressed will not lead to any useful answer. An answer such as "sometimes" or "it depends" would neither resolve the three appeals nor provide any guidance to those involved in other cases which throw up the same issue. Nonetheless I think it is necessary to start by briefly considering the issue in general terms before considering it in the context of the facts of the three particular cases.

    113.  Section 17(1) says that:

    "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 it 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."

The language of this provision seems to me to provide very infertile soil for the extraction of a targeted, specific duty owed to an individual child.

    114.  First, the adjective "general", qualifying the "duty", is indicative of an overarching duty applying to a class rather than to individuals and of a 'framework' duty under the umbrella of which specific duties imposed by other statutory provisions may from time to time come into existence in relation to specific children. The point is underlined by sub-section (2) which says that:

    "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."

The contrast in sub-section (2) between the "general duty" imposed by sub-section (1) and the "specific duties" to be found elsewhere is explicit.

    115.  Second, the context of the sub-section (1) "general duty" is expressed in broad aspirational terms that would not easily lend themselves to mandatory enforcement. The local authority must "safeguard and promote the welfare" of the children. It must "promote the upbringing of such children by their families". Nothing could be less specific.

    116.  Third, sub-section (1) specifies, again in very broad terms, the manner in which the "general duty" is to be discharged, namely, "by providing a range and level of services appropriate to those children's needs". This language is contemplating the children, the objects of the general duty, as a class.

    117.  Part I of Schedule 2 to the Act, as section 17(2) has led one to expect, imposes specific duties and confers specific powers on local authorities. Paragraph 1(1) says that:

    "Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area."

This obligation is not expressed in absolute terms. The local authority will have discharged its mandatory duty if it has taken "reasonable steps". Having identified a child "in need" it will often be necessary for the local authority to assess the actual needs of the child. Somewhat surprisingly the requirement for the local authority to do so is nowhere expressly spelt out. Paragraph 3 of the schedule says that:

    "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 is made under -

    (a)  the Chronically Sick and Disabled Persons Act 1970;

    (b)  Part IV of the Education Act 1996;

    (c)  the Disabled Persons (Services, Consultation and Representation) Act 1986; or

    (d)  any other enactment."

It is, I think, implicit in this provision that the local authority will assess the actual needs of a child in need whenever it appears necessary to do so.

    118.  Most of the specific duties imposed on local authorities under Part 1 of Schedule 2 are expressed in proportionate rather than absolute terms. Thus, paragraph 4(1) requires every local authority to "take reasonable steps … to prevent children within their area suffering ill-treatment or neglect". Paragraph 7 requires every local authority to "take reasonable steps designed …" to benefit the children in various specified ways (emphasis in each case added). Paragraph 8 requires every local authority to "make such provision as they consider appropriate …" for specified types of services to be made available to children in need who are living with their families. Paragraph 10 requires every local authority to "take such steps as are reasonably practicable …" to enable a child in need living apart from his family to live with his family (emphasis again added). It is plain, in my opinion, that in relation to each of these specific duties the local authority can take into account among other things, its overall financial resources and, in particular, the cost of taking a specific step that, if taken, would benefit the child and meet some need. Whether the taking of a particular step is "reasonable" or "reasonably practicable" cannot be divorced from the financial implications of taking the step.

    119.  Viewed in the context of these specific duties imposed on local authorities under Part 1 of Schedule 2 to the Act it would be odd to find that the section 17(1) general duty had imposed on a local authority a mandatory obligation to take some specific step in relation to the child irrespective of the local authority's financial resources and of the cost of the step in question. But that is the result for which counsel for the appellants in these three appeals contend.

    120.  It is time, I think, to consider the point in the context of the particular facts of the three cases. Let me start with the case of A. She is the mother of three children, two of whom suffer from autism. They are unquestionably children "in need". They live in a two-bedroom ground floor local authority flat with no outside play area. The two autistic children, both boys, are now aged 9 and 7. In May 2000 assessments of the two children for the purposes of the 1989 Act took place. There was particular emphasis on their housing needs. The assessments were, among other things, that the family's existing accommodation had a number of unacceptable risk factors so far as the two boys were concerned and that the family needed to be re-housed in a four bedroom flat with access to a garden.

 
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