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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    121.  In September 1998 the council had given the family an overriding priority for re-housing but nothing suitable had been offered. Following the May 2000 assessments the council were still unable to give a date by which suitable accommodation meeting the standards required by the assessment might be available. A shortage of suitable houses or flats in the council's housing stock and limited financial resources were the problem. So proceedings were started. The appellant sought a mandatory order requiring the council to "identify a suitable property and provide appropriate support in line with assessed needs".

    122.  Mr Gordon QC's core contention on behalf of A is short and simple. He accepts that section 17(1) starts by imposing a general duty. But, he says, once the actual needs of a child in need have been identified by a needs assessment, the council comes under a targeted, specific duty to meet the assessed needs. Lack of resources, or perhaps, putting the point more accurately, competition for limited resources, is irrelevant. The council's section 17(1) duty has become a mandatory and absolute duty to provide the specific services to A and her children identified by the needs assessment.

    123.  The issue in both the G case and the W case is whether section 17(1) imposes a mandatory duty on a local authority to provide housing to the parent of a child in need so as to enable the child to live with his or her parent.

    124.  W lives with her two children. She lost her accommodation in March 2000 in circumstances that led the council to conclude that she had become intentionally homeless and was not entitled under the homeless persons legislation (Part VII of the Housing Act 1996) to council housing. She appealed against the council's decision but the Court of Appeal dismissed her appeal. The needs of her two children were assessed in April 2002. The assessment identified a need for accommodation as their only need.

    125.  G comes from Holland. She has a son who was born in May 1999. In June 2000 G and her son came to England and applied to the council for assistance with housing. Her application was initially refused on the ground that she was not "habitually resident" in this country. After subsequent interviews with council officials the council offered to pay the cost of G's return to Holland with her son and to provide temporary accommodation and financial assistance in the meantime. But G refused to return to Holland and insisted that the council's duty to her son, a "child in need", obliged the council to provide her with permanent housing accommodation where she and her son could live together. Whether or not there has been a formal assessment of the needs of G's child, it is obvious that the child's needs include the need to live with his mother and the need to have accommodation appropriate to his tender age.

    126.  Both G's case and W's case have, therefore, the common feature that the children's need for suitable housing and their need to live with their mothers, needs that the council is said to be under a mandatory, statutory obligation to meet, are being used by the mothers as a stepping stone by means of which the mothers can obtain housing to which they would not otherwise be entitled.

    127.  Mr Howell QC, who appeared both for G and W, based his case not only on section 17(1) of the 1989 Act but also, and I think mainly, on section 23(6) of the Act. Section 23 specifies a number of specific duties resting on a local authority in relation to any child "whom they are looking after". Section 22(1) (as amended) says that references to a child whom a local authority is looking after are references either to a child in the local authority's care (paragraph (a)) or to a child who is "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" (paragraph (b)). Section 23(6) says that "any local authority looking after a child shall make arrangements to enable him to live with - (a) [the parent of that child] unless that would not be reasonably practicable or consistent with his welfare".

    128.  A short answer to Mr Howell's section 23(6) case is, in my opinion, that none of the G or W children was a child whom the council was "looking after" within the meaning ascribed to that expression by section 22(1). None was a child in the local authority's care. And although each, with his mother, was in temporary accommodation provided by the council, the temporary provision of accommodation while a local authority is considering a housing or support application made by the parent who is looking after the child does not, in my opinion, constitute the "provision of accommodation" referred to in section 22(1)(b). A contrary conclusion would, in my view, be inconsistent with the content of sub-sections (1) and (2) of section 23.

    129.  But, in any event, section 23(6) does not oblige a local authority to provide housing to the person with whom the child being looked after by the local authority is to live. As it was put by my noble and learned friend Lord Nicholls of Birkenhead, section 23(6) is concerned with placement of the child, not with housing (see paragraph 38).

    130.  Accordingly, Mr Howell's case for G and W comes to depend on the same point as Mr Gordon's case for A. Does section 17(1) impose a mandatory duty on a local authority to take specific steps that the assessed, or obvious, needs of a child in need require to be taken regardless of the financial resources of the council or the cost of those steps? It is accepted that nowhere in the 1989 Act is it expressly stated that if a child's assessed needs include the provision of proper accommodation, and that he or she continue living with his parent (or parents), the local authority must, regardless of cost, provide the parent (or parents) with the requisite accommodation. Is that obligation to be implied?

    131.  Somewhat similar questions have arisen in other contexts. The decision of this House in R v East Sussex County Council, Ex p Tandy [1998] AC 714 was relied on by the appellants. The case concerned educational needs. Some children have special educational needs. A statement of the special educational needs of the Ex p Tandy child said that she needed five hours of home tuition per week. The local authority decided, for cogent financial reasons, to reduce the home tuition to three hours per week. The issue was whether that decision was lawful. Section 298(1) of the Education Act 1993 said that each local education authority:

    "shall make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."

And sub-section (7) said that "suitable education" meant education "suitable to [the child's] age, ability and aptitude and to any special educational needs he may have".

    132.  It was accepted before the House that section 298(1) imposed a duty on the council owed to each individual child in its area to provide that child with "suitable education". "Suitable education" was defined by reference to wholly objective educational criteria that did not include the cost of the provision of the education. Lord Browne-Wilkinson, with whose opinion each of the other members of the Appellate Committee agreed, said this, at p 749:

    "the county council has as a matter of strict legality the resources necessary to perform its statutory duty under section 298. Very understandably it does not wish to bleed its other functions of resources so as to enable it to perform the statutory duty under section 298 .… The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power …. Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgment the courts should be slow to downgrade such duties into what are, in effect, mere discretions over which the court would have very little real control."

    133.  This approach was urged strongly on your Lordships by counsel for the appellants. In my opinion, however, there is a key difference between section 298(1) of the Education Act 1993 and section 17(1) of the 1989 Act. Section 298 did impose a specific duty owed to each individual child. The duty to each child was to make arrangements for the provision of "suitable education", as defined, to that child. Arrangements for the provision of something less was not a discharge of the statutory duty. In the present case, by contrast, the fundamental issue is whether section 17(1) imposes on a local authority a specific duty to an individual child in need to meet every assessed, or obvious, need of that child. Reliance on Lord Browne-Wilkinson's remarks in Ex p Tandy begs that question. No doubt it is right that a statutory duty must not be downgraded to a mere discretionary power. But before complaints can be made that that is what the councils are contending for in the present cases, it is necessary to identify the statutory duty. If the appellants are correct that the councils owed them a statutory duty under section 17(1) to provide them and their children with the requisite housing, there is an end of the respondent councils' cases. No question of downgrading the duty would arise.

    134.  R v Kensington and Chelsea Royal London Borough Council, Ex p Kujtim [1999] 4 AER 161 was a decision of the Court of Appeal concerning the effect of section 21(1) of the National Assistance Act 1948, as amended. The court concluded that section 21(1)(a) of the 1948 Act, coupled with paragraph 2 of the Secretary of State's Approvals and Directions made under section 21(1), imposed a continuing duty on the respondent council to meet the appellant's assessed need for accommodation but that, in the circumstances, the council had discharged its duty. I do not think this case is of assistance to the present appellants. Section 21(1), as amended, said that -

    "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 …"

and under paragraph 2(2) of the Approvals and Directions the Secretary of State directed local authorities to make arrangements to provide residential accommodation to certain persons in certain circumstances. A person able to bring himself within the specified category was plainly, in my opinion, owed a statutory duty. There is no equivalent in the present case to the statutory direction given by the Secretary of State under which the specific duty owed to Mr Kujtim arose.

    135.   In my opinion, in agreement with my noble and learned friend Lord Hope of Craighead, section 17(1) does not impose a mandatory duty on a local authority to take specific steps to satisfy the assessed needs of a child in need. If a mandatory order against a local authority to take some specific step is sought the applicant must either point to a specific duty to take the step imposed elsewhere in the Act (or in other legislation) or must invalidate the local authority's decision to decline to take the step on the usual reasonableness and proportionality grounds available in judicial review challenges. In my opinion, the appellants' appeals, in so far as they are based on a mandatory duty arising under section 17(1), should be dismissed. I am in full and respectful agreement with the reasons given by my noble and learned friend Lord Hope of Craighead on this issue.

    136.  It is accepted by the respondent councils that they have the requisite power to provide housing to the appellants in order to meet the needs of their respective children. The question, therefore, arises whether the councils' decisions not to exercise this power in the manner requested by A, G and W can be impugned. Different considerations apply to the cases of G and W on the one hand and of A on the other hand.

    137.  My noble and learned friend Lord Nicholls of Birkenhead has carefully and lucidly analysed the general policy adopted by Lambeth Borough Council, and no doubt of other councils, of dealing with the accommodation needs of homeless children by making accommodation available for the children but not for their parents as well (see paragraph 48 of his opinion). There is an undoubted duty, imposed by section 20 of the 1989 Act on local authorities, to provide accommodation for homeless children. A situation in which children may be sleeping rough in the streets or in cars or in garden sheds cannot be tolerated. Local authorities accept that this is so and, where necessary, accept the obligation to provide accommodation for any such children. But, so many councils believe, the provision of housing accommodation to the families of children in order to prevent the children from becoming homeless, would place an unacceptable financial burden on council resources. It is pointed out, in answer, that the cost of providing family accommodation to a child and his or her family may often be less, or at least not significantly more, than the cost of accommodating the child in a council home or with foster parents. So, given the child's need to go on living with his or her family and in particular with his or her parents if at all possible, the general policy of offering accommodation to the child alone is, it is argued, an unreasonable one that it is not lawful for a council to adopt.

    138.  The councils' response to this argument, based as it is on the comparative cost of accommodating only the children of the family as against the cost of providing accommodation for the children with their family, is that in most cases an indication given by the council that the children will be removed from their family and accommodated separately leads to the parents managing to find family accommodation for themselves and their children. If intentionally homeless parents, or other parents with no right to council housing, knew that, if they did nothing, the council would find itself obliged to provide them and their family with accommodation in order to discharge its obligation to safeguard the children of the family from homelessness, a large number of these parents would do nothing. A coach and horses would be driven through the housing legislation under which those who have become intentionally homeless cannot call upon the council to re-house them.

    139.  It is, of course, correct that each case must be considered on its merits but, in general, the council's response is, in my opinion, a reasonable one. It is suggested that a distinction might be drawn between cases where the child is old enough not to be significantly upset at being separated from his or her parents and cases where the child would be significantly upset by the separation. The general policy referred to could be endorsed for the former class but not, it is suggested, for the latter class. I do not believe that the suggested distinction is either a practicable or a reasonable one. Your Lordships have not been referred to any expert evidence identifying the criteria which would be applied in order to decide into which class a particular child fell and, in its absence, I regard it as legitimate to draw upon my own experience of children. That experience leads me to believe that the class intended to contain children old enough not to be significantly upset at being separated from their parents against their and their parents' wishes would be a class with very few members.

    140.  Moreover, on what sort of evidence would a local authority, or a judge, be expected to decide whether or not a child would be significantly upset at being separated from its parents? The parents would be bound to say that the child would be very significantly upset. So would the child, if it was of an age to be asked. And what child expert or other witness would contradict them? On what basis could a local authority or judge decide that the parents' evidence to that effect should not be accepted?

    141.  The distinction that it is suggested should be drawn is, in my opinion, simply a concealed means of outlawing the general policy adopted by Lambeth and other councils. For my part I can see nothing the matter with that general policy. If a parent or parents have become intentionally homeless or for any other reason are not entitled to look to the local authority for housing accommodation, the local authority is entitled, in my opinion, to adopt a general policy under which it is made clear that it will make accommodation available to the children of the family in order to prevent the children becoming homeless, but will not permit the parents to use the children as stepping stones by means of which to obtain a greater priority to be re-housed than that to which they would otherwise be entitled.

    142.  There is general agreement among your Lordships that the appeals of G and W should be dismissed. But, for my part, I do not consider that the general policy referred to above needs adjustment.

    

 
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