This was the admissibility hearing of a case brought by Yvonne Hossack on the closure of a care home by Wolverhampton BC and transfer of the residents to other care homes. Ms Watts was a resident in the home. She is 106 ears old and became a resident 5 years ago when she could no longer manage independent living. Ms Watts had sought judicial review of the decision to close the home on the basis of Articles 2, 8 and 14 of the convention and seeking an injunction preventing the closure without a prior report from an expert psychiatrist confirming that the move presented no risk to the resident’s health or life. The claim, in various and re-issued forms, repeatedly failed at judicial review and at appeal of refusal to grant permission in the Court of Appeal (Judgment here).

The ECtHR considered the application for permission at a point where Ms Watts had been transferred to another home, with 3 friends from the previous home. A full adult review noted:

As Underhill House was closing Mrs Watts moved to the Sycamores nursing home on 13/1/10 along with 3 other residents. Initially she settled well but has had a few nights where she hasn’t slept and has become agitated at times. She continues to need encouragement to eat but has maintained her weight … She is now able to walk short distances with assistance.
On 26/1/10 a safeguarding investigation was raised as bruises were noted on both of Louisa’s lower arms. The cause cannot be determined but it may be due to poor handling and the fact that Louisa bruises easily. As Louisa has reported that she is happy at the home it was felt appropriate to close the safeguarding. Louisa has stated ‘I like it here’. She said the food was good and the staff were kind. When asked if she wanted to consider moving Louisa stated ‘I don’t want to move again’.

The details of assessments carried out by the Local Authority were before the Court as were the details of research on the effects on elderly people of being moved from one care home to another and the extensive consideration of the issues, the state of research and the undertakings given by the Local Authorities in precedent national cases: R (Haggerty and others) v. St Helens Council [2003] EWHC 803 (Admin), R (Wilson and others) v. Coventry City Council [2008] EWHC 2300 (Admin), R (Rutter) v. Stockton on Tees Borough Council [2008] EWHC 2651 (Admin), and, decided after the Court of Appeal hearing in the present case, R (Turner and others) v. Southampton City Council [2009] EWCA Civ 1290. From the latter Sedley LJ in the Court of Appeal is quoted as follows:

27. The test of a ‘real and immediate risk’ is ‘one that is not readily satisfied: in other words the threshold is high’ … The evidence before this Court falls far short of this threshold.

28. This is not the first time that the courts have considered whether a decision to close a care home breaches a public authority’s positive obligations under Article 2. In R (on the application of Wilson) v. Coventry City Council [2008] EWHC 2300 HHJ Pelling QC reviewed the case law in this area and assessed its application to circumstances similar to those before this Court: § 31-36. His review and conclusions, which have not been directly challenged before us, ought to have put those advising the present claimants on clear notice that their case faced formidable difficulties of principle, and that to involve them in litigation might contribute to the stress of relocation.

29. These are the principal reasons why permission to appeal was refused in both cases …

The specific complaint before the ECtHR was:

The applicant complained that her involuntary transfer to another care home resulted in a risk to her life, her health and her right to respect for her private and family life, in particular her right to respect for her physical and psychological integrity. She relied on Articles 2, 3 and 8 of the Convention, which provide in so far as relevant as follows:
Article 2 of the Convention
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
…”
Article 3 of the Convention
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”
Article 8 of the Convention
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

On Article 2, the issue was the positive obligation to safeguard life. “For the Court to find a violation of the positive obligation to protect life, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”. This must not be an impossible or disproportionate burden.

In the present case, it was not established on the available medical evidence that there was a quantified and particular risk to the applicant’s life as a result of the transfer. The Court was persuaded that a badly managed transfer could well have a negative impact on the life expectancy of those transferred, but “The extent of any obligation to take specific measures, however, and in particular the proportionality of any measures called for by the applicant, must be assessed in light of the equivocal medical evidence as to the extent of any risk to life.” The Court noted the practical challenges faced by the LA and that care facilities may well become outmoded and unsuitable for new standards, as well as the issues of the cost effective use of its budget in this regard.

The applicant had not sought to challenge the alleged failure of the LA to abide by its undertakings methods of assessment and transfer in the national courts, which was the proper place to do so. In the Court’s view, “having regard to the operational choices which must be made by local authorities in their provision of residential care to the elderly and the careful planning and the steps which have been undertaken to minimise any risk to the applicant’s life, the Court considers that the authorities have met their positive obligations under Article 2.”

On Article 3, “there is nothing in the material submitted to the Court to suggest that any stress or distress experienced by the applicant as a result of an involuntary transfer met the threshold required by Article 3 of the Convention.”

On Article 8, there was an Article 8.1 interference. However, as with Article 2 above, it was proportionate interference:

the Court has concluded that the positive obligations arising under Article 2 did not prohibit the transfer of the applicant in light of the alternative measures which were taken to minimise any risk to her life and the countervailing interests in closing the home (see paragraphs 89 to 92 above). Similar considerations apply in assessing proportionality under Article 8 § 2 of the Convention in the context of the applicant’s complaint about its impact on her health or private life.

The applicant’s difficulty in sleeping for a while in the new premises did not constitute grounds to conclude that the transfer was disproportionate. In addition, the LA had carried out extensive consultation on the move and the wishes of those involved and their family and carers.

Furthermore, there was a wide margin of appreciation in issues of general policy, including social and health care policies. Democratically validated local authorities were better placed than the court to assess local needs and conditions.

In view of all of this, the Art. 8 interference was proportionate and justified.

The application was therefore inadmissible on the complaint under Art 2, 3 and 8.

The applicant had further complained of violations of Article 6 and 14. On Article 6, the history of judicial review applications and consideration by the Court of Appeal made clear that the applicant had had access to a court in respect of the decision to close the Underhill care home. In respect of Article 14, alleged discrimination on grounds of disability,

“The applicant has not provided details of any alleged different treatment of people in a comparable situation. Accordingly, in the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court finds no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols arising from this complaint.”

Application declared inadmissible.

Yvonne Hossack apparently has another two similar cases on appeal to the ECtHR. Unless the details of the handling of the closures by the LAs differed in those cases, those would appear to be unlikely to be successful, because it is hard to see a case based on Article 2 which relies on the medical evidence getting a further hearing. However, it is worth noting that the Court did not rule out a potential Article 2 breach in such situations. The emphasis is on the Local Authority to take all reasonable steps to minimise risk to the transferees. The Court’s decision, though, recognises that the risk will not be eliminated and a decision to move cannot be challenged on the basis that there is some, albeit minimised, risk to life.

This is a little outside our usual grounds, but as it concerns the Court’s power to direct Local Authorities to accommodate a child and parent, and has interplay with S.20 Children Act 1989, it is worth a note.

The issue in this appeal was the extent of the Court’s powers to order a Local Authority to provide accommodation under Section 5 Child Abduction and Custody Act 1985.

EA, the mother, had removed J and K, the children and fled from Ireland to, first, Salford. She was Nigerian and on a vistors visa, so became an illegal immigrant. The children were born in Ireland and were EU Citizens. They were accommodated by Salford for 4 weeks. Salford then gave her the money to go to London, one way.

The father, GA, is also Nigerian. He applied for a return order under the Hague Abduction Convention 1980. This was listed before HHJ Coates, EA having been located since first order was made. HHJ Coates made an order under s.5 Child Abduction and Custody Act that EA, J and K were to be accommodated by Westminster City Council in the interim while giving case management directions. Westminster were informed that such an order was to be sought just before the hearing, were not represented and presumably in view of the the permission to apply to discharge the order on 1 days notice.

Westminster applied to set aside the accommodation direction on the basis that it should have been Salford ordered to provide accommodation. Jurisdiction to make the order, even with ‘no true protective ingredient to the order’, was conceded. At hearing, Mostyn J doubted Westminster’s concession and took the view that there was no risk of further flight or deceit in this case, that s.5 did not bite where there was no protective purpose to the accommodation, and that it was likely that s.17 and s.20 Children Act 1987 would apply instead, creating a different duty for Westminster. The accommodation direction was discharged, with permission to appeal for everyone concerned and deferred discharge pending appeal.

EA appealed. Before the appeal was heard, an assessment of K made clear that he was a very vulnerable child with very special needs. On the basis of this report, EA argued that K should never be homeless or be without his mother’s care. A broad interpretation of s.5 was merited as there could be no doubt of K’s need for protection and such an interpretation was required to meet the requirements of Article 7B of the Convention.

S.5 reads as follows:

Interim powers
Where an application has been made to a court in the United Kingdom under the Convention, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application.

For GA it was argued that an accommodation order may be needed to prevent further abduction, but also to promote preparation of a defence to the return application and to promote the welfare of the abducted child, particularly if the child has special needs. Further, a constricted view of the section as applying only to a further abduction risk would leave obvious lacunae in the Court’s powers – if the absconding parent was in custody, for instance.

Westminster argued that on the facts, s.17 and s.20 Children Act would clearly apply, such that it was unnecessary to spell a duty to accommodate out of the wording of s.5 of the Child Abduction Act, which was aimed to prevent further abduction.

Held:
The language of s.5 was broad. it needed to be in order to achieve the Convention goals and to safeguard the welfare of children whose vulnerability may well be amplified by the effects of abduction. While the commonest risk may be that of further abduction, that is but part of safeguarding the welfare of the child, were the welfare need may be unrelated to the risk of another upheaval. S.17 and s.20 Children Act discretionary powers [an error on s.20 powers being discretionary there, surely, NL] are considerably less satisfactory than a court’s powers to order accommodation in these circumstances, and there is no requirement to provide accommodation to the mother under those sections save her common law claim on grounds of humanity.

This finding is likely to be of very limited effect. Westminster had complained of the likely effect upon it, given its size and proximity to the Royal Courts of Justice, but had been unable to provide figures on the number of s.5 orders to accommodate it had received. In the circumstances there was no reason to believe that this case would be of far reaching impact.

A couple of things strike me about the guidance. One is the insistence that the Claimant must be primary carer AND parent (or step-parent) to be eligible. See para 7 and elsewhere. I’m not sure that this is so. Granted on the facts of Ibrahim and Teixeria, the carers were parents, but the Art 12 right belongs to the child, and, while a parent must have been a worker in the UK at some point, I can’t see how the ratio of those cases requires the primary carer to be a parent. The benefit/housing entitlement stems from the child’s right to remain and to be supported and cared for while they do. On that basis, the usual primary carer for the children would be the relevant claimant. Will this take another case to resolve?

Secondly, although I’m a lot less sure of my grounds here, the guidance is firm that children of A8/A2 nationals will not gain Art 12 rights unless the migrant worker has completed the necessary 12 months registered work. (Para 10). This would mean that although such a child might have been in school for a year, no Art 12 right to continue that education. Again, on the basis that the Art 12 right is the child’s, not the parents, I can’t see how this would work. I suppose the counter argument is that the accession migrant is not an EU worker during the ‘qualifying’ period, and thus the child can’t accrue Art 12 rights through their residence. I’m not convinced, but I am happy to have it explained to me. Preferably using short words.

Or when is a child in need not a child in need?

This was the judicial review of Lambeth’s decision not to support TG as a ‘former relevant child’, he being over 18. The question was, quite simply, had TG been a ‘looked after child’ at any point before he was 18, in particular what functions Lambeth was exercising when it provided TG with accommodation.

TG was living with his mother until March 2006. In 2004 he had come into contact with Lambeth’s Youth Offending team, there followed a sentence of a supervision order in 2005. From February 2004 to April 2007, TG had been under the supervision of 8 different social workers attached to the Youth Offending Team.

From mid 2005, TG had been insisting to his Youth Offending Team social workers that he could not live with his mother, that she was throwing him out, and asking for a reference to the Housing Department HPU. His mother, however, reported that although they were having difficulties, she was not throwing him out and that he could stay.

Eventually, in March 2006, his mother told the YOT social worker that she was under a lot of pressure to write a letter for the HPU, she didn’t wish TG to leave home, but as he insisted he could leave but there would be no return if he did.

The YOT social worker completed a report and gave it to TG to take to the HPU:

The Report is headed “Homelessness and Social Vulnerability Report. To be completed by the Youth Justice Team”. The first section is entitled “Reason for homelessness and accommodation history”; it reads as follows:
“I understand that the relationship between [T] and his mother has broken down to the point that it is not advisable that they both live in the same household.
[T] has been living with his mother since the age of 9. His mother emigrated from Jamaica when [T] was quite young and was looked cared for [sic] by his father.
The relationship between his parents has since broken down. However, his father passed away sometime ago.”
The next section headed “Details of any periods in Care/Looked After”; this states “No”. Details of family contacts are given and a brief summary of the Claimant’s contacts with the YOT. Towards the end of the three page document it is said that the Claimant was able to fend for himself, but in the final section before the signature, under the heading “Other information”, it is said that, “This young person is in desperate need of housing and would hope that his housing need is met as he fulfils the Child in Need criteria…”.

TG was accommodated in a hostel by the HPU and remained in temporary accommodation provided by the HPU until he was given an AST by the South London YMCA in October 2006. This tenancy was terminated by possession order in September 2009 on the basis of anti social behaviour.

On being refused assistance as a ‘formerly looked after child’ TG brought the JR proceedings.

The YOT social worker filed a witness statement, admitted a hearsay due to illness, which denied ever considering TG to be a ‘child in need’ and stating that if she had, she would have referred him to Children and Young Persons Services. It wasn’t clear how that sat with the final line of the report she wrote. However, the key issue was whether the YOT social worker was exercising a social services function in this apparent assessment of TG as a ‘child in need’, thus making the referral to the HPU akin to  the position in R (G) v Southwark LBC [2009] 1 WLR 1299 (our report here), or not, in which  case the situation would be akin to R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 535 (our report here). I.e. Should the referral to the HPU be properly taken as asking Housing to assist in the discharge of a s.20 Children Act duty by Social Services, or did this fall under the provision of accommodation by Housing under Part VII Housing Act 1996 without Social Services involvement, as a separate department, with no s.20 Children Act referral or duty arising?

Held:
Youth Offending Teams were established and operated under s.39 of the Crime and Disorder Act 1998. This was separate and distinct from the Social Services function of a local authority under Local Authority Social Services Act 1970, Children Act 1989 and Children Act 2004, even though there was a requirement that at least one person with experience of social work be included in each team and that in this case those who had dealt with TG were all qualified and experienced social workers. The social worker’s description of the activities of the YOT was accepted:

The purpose of the team is to provide community intervention for young persons sentenced by the court. All the work comes directly from the court. We do not receive referrals from any other source. The court may ask for pre-sentence reports or for us to make recommendations. We are not like the CYPS [sc. "Children and Young People's Services"] where others can make referrals to us. The Court Team see any young persons picked up overnight, prepare bail packages for them and can make suggestions to the Bench. I am part of the next stage after the Court has made a community sentence. My team supervise the young person in the community, providing information and reparation, i.e. paid or unpaid work, group work and addressing specific issues about offending behaviour. Depending on the severity of the young person’s offence, he might be on an Intensive Supervision Sentencing Programme (“ISSP”) which the Claimant was on at one point, when on 6 April 2005, he was made the subject of a Supervision Order for 12 months and placed on such a programme.

It was acknowledged that the YOT was now one of the divisions of Children and Young Persons Services, but it was distinct from the Children and Families division dealing with social services functions in relation to children.

So:

In my judgment, the essence of the decision in M is that the duty arises when the relevant factors come to the attention of those charged within the local authority with children’s social services. While the supervising officer of the YOT is the DCS [Director of Children's Services] the functions of the YOT remain those assigned by the CDA 1998 which are described in practical terms in the draft witness statement of Ms Acquah. Those functions are directed to the working with offenders sentenced by the courts and working through the process of those sentences; they would not ordinarily be considered as part of the social services functions of the authority as that term is commonly understood. As in M, the official in the YOT looked to the Housing Department to meet the need and those charged with social services provision were never engaged.

Given that it has been decided in M that a firm line has to be drawn in resolving when a local authority is exercising its social services functions, it seems to me that the line has to be drawn by saying that the duty is not triggered until the child comes to the attention of the division of the local authority responsible for those functions in the ordinary course. The peripheral attention of a duly qualified official of a different team will not do.

Although just as in in M, “with the benefit of hindsight, the Housing Department or the YOT should probably (as a matter of good practice) have referred the Claimant here to the team in charge of children’s social services”, this had not happened and, as in M, it was not the Court’s place to decide that this constituted bringing the claimant to the attention of social services when this had not in fact happened.

Accordingly, the social services function of the local authority were not engaged. TG’s accommodation was under Part VII Housing Act 1996, not s.20 Children Act 1989. TG was not a ‘child in need’ during the period of accommodation and was therefore not a ‘formerly looked after child’. M rather than G.

Claim dismissed.

Ms Clue was a Jamaican national. She and her oldest daughter were given leave to come to the UK in 2000 as visitors. After 6 months, she applied for leave as a student, which was refused after appeal in 2003. No steps were taken to remove Ms Clue or her daughter. Ms Clue had 3 children while in the UK, whose father was a UK citizen and who where therefore UK citizens. The children’s father supported Ms Clue until 2007. In October 2007, Ms Clue applied for indefinite leave to remain on the basis that the oldest child had been living in the UK for more than 7 years. She returned to live with her aunt (in Birmingham).

She then applied to Birmingham City Council for accommodation and assistance under s.17 Children Act 1989. Birmingham declined to do so on the basis that Ms Clue and her family could return to Jamaica, where they could continue to enjoy a family life. For this reason there was no breach of Art 8. Birmingham offered a payment for travel and a resettlement grant.

Ms Clue made a claim for judicial review, which was upheld:

Birmingham had erred in law in failing to take account of the reasons underlying DP 5/96 (in its amended form) and the presumption to which it gave rise that, where a child of a family had been resident in the UK for 7 years, indefinite leave to remain would be granted in all but exceptional cases. DP 5/96 was the policy of the Secretary of State for the Home Department applicable to children who had been in the UK for 7 years.

Birmingham appealed. The Secretary of State for the Home Department and Shelter came in as interested party and intervener respectively.

Ms Clue was granted indefinite leave in October 2009, making the appeal academic, but it proceeded on its relevance for other cases.

The Court noted that the Home Office policy DP 5/96 in force at the time of Birmingham’s decision was that, where a child had lived in the UK for more than 7 years:

For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence.

It was under this policy that Ms Clue had applied and it was this policy to which Birmingham ought to have had regard.

Held:

a) Unless the application for leave to remain is clearly hopeless or abusive, it is not for the Council to consider the merits of the application for leave to remain, where made explicitly or implicitly on convention grounds (which in relation to the 7 years policy was clearly the case). This is properly the province of the Secretary of State to determine.

b) Where the application would be terminated should the applicant leave the country, as here, the Council’s decision would effectively end the application for leave to remain. This was not the Council’s decision to make, as above.

c) The financial situation of the Council is irrelevant. Where the applicant (i) is unlawfully present in the UK within the meaning of para 7 of Schedule 3 Nationality, Immigration and Asylum Act 2002; (ii) is destitute and would (apart from Schedule 3) be eligible for services of the kind listed in para 1 of Schedule 3; and (iii) has made an application to the Secretary of State for leave to remain which expressly or implicitly raises grounds under the Convention, the demands on the Council’s resources can play no part in its assessment of need:

Were the position to be otherwise, a person’s application for leave to remain would, in effect, be rejected on the basis that a local authority applies article 8(2) on one set of criteria (weighing the various calls on its budget), where the same application might be allowed by the Secretary of State (the person whose statutory function it is to determine such applications) on a wholly different set of criteria (weighing the need to maintain a firm and orderly immigration policy). That is obviously incoherent. But it is also unfair and arbitrary. It is unfair and arbitrary because it means that the outcome of a person’s application for leave to remain depends on the budgetary priorities of the particular local authority to which the claim for assistance is made. The outcome of the application for leave to remain may be different if the claim for assistance is made to a different local authority whose budgetary priorities are different. The disposal of applications for leave to remain should not depend on the vagaries of the budgetary considerations of local authorities.

d) Birmingham’s human rights assessment in the case was unlawful. Firstly, it took no account of the application for leave to remain. Secondly, the whole emphasis of the assessment was on the right to family life, “there is no indication that Birmingham recognised that to require the claimant and her family to return to Jamaica would interfere with the family’s right to private life (their relationships and social, cultural and family ties in the UK) or that they understood that the private life rights of children who were born in the UK or came here at an early age were of particular weight”. Accordingly, the human rights assessment was inadequate.

The Court acknowledged that:

The facts of the present case have exposed the problem that has been created for local authorities by delays on the part of UKBA in dealing with applications for leave to remain by persons in the position of the claimant and her family. In an ideal world, the UKBA would be made aware of all cases which fall into this category and prioritise them so as to reduce the period during which assistance has to be provided by the local authority pending determination of the application for leave to remain.

The Secretary of State had stated that such cases were to be prioritised and that should go some way to meeting the problems.

Appeal dismissed.

It should be noted that, at least for the purposes of this case, the Court accepted a distinction between cases where a person alleges that the consequences of return would be a breach of his article 8 rights in the UK: for example, it would involve an interference with his family life in the UK by breaking up his family, or it would result in an interference with his private life in the UK (Domestic cases); and cases where a person alleges that the consequence of a return would be a breach of Convention rights in the country of origin (Foreign cases). Although hybrid cases are acknowledged to exist, this case fell wholly under the ‘Domestic case’ type at the decision is on that basis.

Mr Kiana came to the UK and applied for asylum. He subsequently lived with his partner and they had a child together. Mr K was provided support under s.95 Immigration and Asylum Act 1999. Following the failure of his application and the subsequent appeals, s.95 support was terminated. Mr K applied for support under s.4 I&A Act 1999 on the grounds that he was destitute. The Secretary if State’s refusal was overturned on appeal and Mr K was offered accommodation with one of the SoS’s ‘target landlords’, separate and away from his partner and child. Mr K refused the offer and the SoS refused further assistance.

On Judicial Review of that decision, Mr K argued that s.4 did not stop the SoS providing support separately from accommodation or, if it did, there was no reason accommodation could not be provided by entering an agreement with his partner’s landlord. Second, in providing accommodation only through target landlords, the SoS forced Mr K to chose between staying with his family and remaining destitute or accepting the offer and leaving his family, as such it was an interference with his Art.8 human rights.

The Secretary of State argued that he could not provide support under s.4 without providing accommodation. He was obliged to ensure that the accommodation was adequate and safe and that this was achieved through the target contracts with landlords, which could be monitored.

Held:
Unlike s.95, which conferred a wider power to provide accommodation and/or support, s.4 simply gave a power to provide the failed asylum seeker with somewhere to live. The inferred intention of Parliament was that s.4 was a more limited power, tied to the provision of accommodation.

The s.4 obligations could not have been discharged though an informal arrangement with Mr K’s partner’s landlord, as the SoS was obliged to ensure the accommodation was adequate. That was ensure through the screening and monitoring of target landlords.

There was no Art 8. breach. Mr K was not being separated from his family in the same way as someone subject to a deportation order. Art 8 did not guarantee the provision of accommodation or welfare support. There was a positive obligation on states to provide support where family life was severely inhibited or welfare of children threatened but this did not apply in this case.

The support under s.4 was deliberately designed to be less advantageous than support under s.95 as a part of the legitimate immigration control policy.

Application refused.

This was the conjoined hearing of an application for Judicial Review of both Barnet and Portsmouth Councils, both JRs bought by Yvonne Hossack and here represented by Stephen Knafler. It makes a distinct contrast and counterpoint to R (Garbet) v Circle 33 Housing Trust and another [2009] EWHC 3153 (Admin) [our note here]. It also makes important findings for anyone dealing with local authority policy or service provision decisions affecting people with disabilities. Apologies for the lengthy note, but detail is unavoidable…

Again, the issue was the withdrawal of resident warden services in sheltered housing schemes. Both Portsmouth and Barnet sought to replace sleep in or resident warden services with mobile services. Judicial reviews of these decision were joined by the Court. By the time the matters came to hearing the Claimant’s grounds against Barnet were:

First, it is submitted that in reaching the decision in question Barnet failed to fulfill its statutory duty under section 49A(1) of the [Disability Discrimination Act 1995] to have due regard to the six needs there set out, each of which identifies a particular goal the achievement of which would further the overall aim of the Act to eliminate discrimination and harassment of disabled persons and to promote equality of opportunity for them in society. Secondly, it is submitted, Barnet failed to follow its own Equality Scheme 2007/8-2010/11, adopted to comply with The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 (the Regulations) made under the Act, because it did not sufficiently involve disabled persons or groups representing their interests in the decision making process. The final submission is that Barnet failed to follow the statutory code of practice called The Duty to Promote Disability Equality: Statutory Code of Practice (the Code) made by the Disability Rights Commission (now named the Equality and Human Rights Commission and to which I shall refer as the Commission) under section 53A(1C) of the Act, in respect of such involvement or the assessment of the impact of the proposals on disabled persons.

Against Portsmouth, the Claimant argued that ‘a preliminary impact assessment in that case carried out by a policy development manager in the Housing Service, which concluded that the proposed changes would or could have no adverse effect or impact on members of equality groups including disability groups’, was in breach of the statutory duty or alternatively was Wednesbury unreasonable.

Both Portsmouth and Barnet argued that they had complied with their statutory duty, with Barnet further arguing that that it ‘carried out a robust consultation exercise with residents and interested groups, including those representing the interests of disabled persons. Finally, it says that there was no duty to carry out a full equality impact assessment and that the assessment which was carried out was adequate.’

S.49 provides that:
“[49A General Duty.]
[(1) Every public authority shall in carrying out its functions have due regard to-
a) the need to eliminate discrimination that is unlawful under this Act;
b) the need to eliminate harassment of disabled persons that is related to their disabilities;
c) the need to promote equality of opportunity between disabled persons and other persons;
d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
e) the need to promote positive attitudes towards disabled persons, and
f) the need to encourage participation by disabled persons in public life."

[...]
[49D Power to impose specific duties]
[(1) The Secretary of State may by regulations impose on a public authority, other than a relevant Scottish authority or a cross-border authority, such duties as the Secretary of State considers appropriate for the purpose of ensuring the better performance by that authority of its duty under section 49A(1).."

The s.49D power was used to bring in the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 in 2005.

Further, Barnet and Portsmouth were under a duty to consider the Duty to Promote Disability Equality: Statutory Code of Practice produced by the Disability Rights Commission, which included guidance that an impact assessment should be carried out. The recommendations of the Code are non-binding, but regard must be had to it.

The Court considered the procedures adopted by Barnet and Portsmouth at some length. In January 2009, Barnet, seeking to reduce spend on support for sheltered housing by £950,000 had embarked on a consultation which revealed that:

(88%) of those responding felt that sheltered housing residents would be disadvantaged if current services were replaced by the new proposed floating support services. The five most frequently made points were: floating support would not meet the needs of residents; current levels of support would be reduced, peace of mind would be adversely affected; support would not be available as and when needed; and the new service would be impersonal.

Barnet had disbanded its Disability Panel set up under the DES and the replacement Disability Equality Advisory Group had only had 3 members and was defunct at this point. Two senior adult services managers drafted an equality impact assessment in 3 pages, which included:

11. Is there evidence or any other reason to suggest that it could have a different effect or adverse impact on any section of the community? Or more specifically, one or more of the six equality strands?

No. No adverse impact, subject to the majority of existing funding being available for re-investment.

No figures were available on how many people likely to be affected were disabled. The report for Council (and recall that none of this had had any input from a Disability panel or advisory group) stated:

4.2 The key risks identified in the consultation are those relating to tenants' health and welfare, in particular, the most vulnerable tenants, and the related key risk of increases in social care spending. The preferred option (option 3) would best address the risks identified through the public consultation of changes to sheltered housing. There are a number of complexities to implementing the preferred option and it will be necessary to work closely with sheltered housing providers and tenants in planning and bedding down new service provision to mitigate these risks further.
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5 EQUALITIES AND DIVERSITY ISSUES
5.1 The Equality Impact Assessment indicates that the preferred service option would promote greater diversity in provision as support will be available to people living in their own homes. The council's 2006 review of sheltered housing in the borough found BME groups represented only 7% of sheltered housing tenants, just half the census rate. In contrast, analysis of floating support usage in Barnet shows 19% of older people entering services were from BME groups. This inequality is reinforced by the current distribution of expenditure on Supporting People services for older people with over 60% of investment directed to services for sheltered housing tenants who make up less than 3% of the borough's older residents. The proposal is to commission services that are needs-led and available to all, unlike current sheltered housing provision that discriminates against those populations who are less likely to wish to choose this housing tenure.

Note the complete lack of any specific address to disability equality. Option 3 was the 'mobile warden' option raised in the consultation and aimed to save £400.000.

In Portsmouth, where cost savings of roughly 50% were sought, a survey of 66 random sheltered housing residents in May 2009 produced the result:

45 said that a night time response was important. Personal safety and security was mentioned by 28 residents and speed of response by 22 residents

Portsmouth soon after wrote to the residents to tell them that 'European working time directives, the Council's Local Pay Review and reductions in the Government's Supporting People funding for sheltered housing' meant that changes were necessary to 'minimize charges to residents'. Meetings were arranged to 'specifically talk about the changes'. This was described by Portsmouth as a 'consultation'.

An equality impact assessment form was filled out by a Policy Assessment Manager, who had apparently 'undergone training on equality issues and attends Portsmouth Fairness and Equality Group'. Her recommendation was that no full assessment needed to be carried out because:

One of the main concerns raised by a number of residents was the perceived reduction in security. Rather than have someone asleep on the premises from 22.00pm until 09.00am, there will be a roaming team covering all the seven schemes. Although initially this seems like a reduction in cover, in reality the change will lead to a more responsive service. Currently one sleeping member of staff may be hard to wake and some residents may not wish to wake them. Although the roaming team could not be at each scheme physically for the whole night they will make regular checks (up to three or four per night). In addition to this, they will know about any residents who have night time habits, and the day team will update them of any particular issues that may have occurred prior to the night service.

The report recommending the changes to the housing executive committee of the Council that was to approve the changes stated that, following consultation, two objections to the proposed scheme had been received from residents and that an equalities impact assessment showed 'that the service changes will continue to provide a fair and accessible service to all our residents.'

Held

On the claimed failure to have regard to the s.49A(1) duty:

The claimants alleged a failure to have regard to the duty, particularly (d) to take account of a disabled persons' disabilities, even if that means 'more favourable' treatment, and (f) to encourage participation in public life.

Neither decision had expressly addressed the Act or its requirements. Following R (Chavda) v London Borough of Harrow [2007] EWHC 3064 (Admin) and R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), there was no requirement to have specific reference to the Act or the Section. Howvever, ‘what is required is that the duty is exercised in substance, with rigour and an open mind.’

It is not the case that the Claimant’s must show an absence of due regard in the sense of Wednesbury unreasonableness, R (Meany & Others) v Harlow District Council [2009] EWHC 559 (Admin) applied. While the Court was prepared to accept that ‘regard was had in the preparation of the respective reports in each case by officers who had relevant training and experience and say that they had the duty in mind’, there was a failure ‘to bring the duties adequately to the attention of the decision makers in making these particular decisions’.

Further, such awareness as they may have been did not amount to a substantial, rigorous and open minded approach. There may be some references to disabilities in the reports and documents, but nothing to show that ‘due regard was had, for example, to the need to take account of disabled persons’ disabilities even where that involves treating disabled people more favourably than other persons’.

Portsmouth’s argument that there was no need to raise these issues with the decision makers where there was no impact on disabled persons does not sit with the note that these were radical changes in the impact assessment that was carried out, nor the results of their information gathering, which raised the time difference in response for a warden as likely to have a significant impact on peace of mind of residents. Regard must be had to such fears in assessing impact. The evidence was that the impact would be more than minor, meaning that the s.49A(1) duty should have been put before the decision-makers.

Neither authority in my judgment had any or sufficient regard to such an impact upon those residents with disabilities as a separate group or to the need to recognise that the taking into account of those disabilities may involve treating disabled persons more favourably than others. References in the documentation before the decision makers in each case to disabilities or to rights of equality do not fulfil the requirement of such recognition. Nor does a general awareness amongst officers or decision-makers of the duty under section 49A(1). In my judgment, it follows that in both cases there has been a failure to comply with that duty and in particular sub-section (d). That alone is sufficient to vitiate each of the decisions.

On consultation and involvement
The Claimants argued for a duty to consult,, breached here, a legitimate expectation raised by DES that disabled people would be involved in decisions affecting them, citing R v Devon County Council ex parte Baker [1995] 1 All ER 73. Portsmouth denied that any such duty arose, but the representations of the DES in both cases did give rise to a legitimate expectation of consultation, so a duty arose.

A consultation must be carried out properly, ‘ it must be undertaken at a time when the proposals are still at a formative stage. Sufficient reasons must be given to allow those consulted to give intelligent consideration and an intelligent response. There must also be adequate time for such a response’.

Barnet’s consultation met this requirement. Portsmouth’s quite simply didn’t. Its purported consultation letter was providing information on a planned change, not seeking views. No alternatives were raised or considered and the concerns of residents ignored, despite the known results of the May 2009 survey.

However, there was no breach of a legitimate expectation raised by DES that consultation would be through a particular process. There was no such process specified by DES.

As for the Code, the court in Brown at paragraphs 119 and 120 accepted three propositions as to its effect. Firstly, a public authority must take it into account when considering disability issues. If it decides to depart from it cogent reasons must be given and they must be convincing. There are however no higher positive duties to comply with the code. Secondly, if a breach of a general duty under section 49A(1) is alleged and it appears to the court that relevant guidance given by the Code has not been followed without cogent reason, then that may be a powerful factor which leads the court to conclude that there is a breach of statutory duty. Thirdly, it is for the public authority to explain clearly and convincingly the reason for the lapse.

It is clear that the involvement of disabled persons envisaged by the Code in decisions affecting them goes beyond mere consultation. Applying those propositions in these cases, in my judgment for the reasons given above Barnet involved disabled persons in its decision in a substantive way, but Portsmouth did not. For the reasons given in paragraphs 58, 59 and 63 above, each of those authorities however in my judgment failed to adopt an approach to mainstream disability equality in the decision challenged and in that regard there is a breach of Code which is a factor supporting the conclusion that each is in breach of its statutory duty.

On Impact Assessments
The Claimants did not pursue criticisms of the failure to carry out full impact assessments.

However, the criticisms that the officers who carried out the impact assessments came to Wednesbury unreasonable conclusions were justified in the case of Portsmouth, for the reasons given above. Barnet’s impact assessment posed the question whether the proposed changes ‘could have a different or adverse impact on any of what were referred to as the equality strands, including disability’. The answer did not deal with the issue and was therefore Wednesbury unreasonable.

Remedy
The decisions were quashed in each case and the matter to be reconsidered. it was not for the court to express a view as to the outcome of that reconsideration.

This is a long note, but there is a lot in this judgment, in particular on the conjoined effect of the DDA, the 2005 Regulations and the ‘Statutory Code’. Anyone involved in making or contesting local authority policy and service provision decisions likely to have an impact on people with disabilities should look at this case very closely.

The claimant was, and had been since July 2001, an assured tenant of sheltered accommodation which was currently provided by the defendant. When the claimant moved to her current accommodation there was a resident warden and it was common ground that the tenancy agreement obliged the defendant to provide a resident warden (although no-one could actually find the relevant tenancy agreement). It was also common ground that the agreement provided for the defendant to vary the services it provided after consultation with the claimant.

In or around April 2008, it appears that new management arrangements were put in place and, at this stage, the problems began to emerge. There was some confusion (and I put it no higher than that) as to whether or not a resident warden would be provided (in fact, the same resident warden who had been working at the site since 2001) or whether there would be a move to a ‘floating’ warden service (see [13]-[19]). When it eventually became clear that the plan was to move to a ‘floating’ warden service, the claimant and other residents protested and sought to persuade the defendant to retain the resident warden service. It was said (rather disingenuously in the view of Mumby LJ at [24]) that the existing warden wanted to retire.

At this stage, the claimant instructed solicitors who threatened to seek judicial review of the decision to retire the resident warden and not to replace her with another resident warden. It was said that the claimant had a legitimate expectation that a resident warden service would be provided. At this stage, it appears that the defendant acknowledged that some form of consultation would have to take place regarding the future of the resident warden service.

A claim for judicial review was issued on January 29, 2009, relying on the legitimate expectation argument. HHJ McKenna (sitting as a deputy High Court Judge) granted an ex parte interim injunction requiring the defendant to continue providing a resident warden until the matter could come back before him a few days later. When the case did come back before him, the Judge discharged the injunction and gave directions for an acknowledgement of service to be filed and the case immediately to be placed before a High Court Judge ([2009] EWHC 384 (Admin)). This was done and Pitchford J listed the matter for a rolled up hearing – which is what Mumby LJ was dealing with.

Between the order of Pitchford J and the judgment, the defendant commenced a process of consultation during which a number of options were offered and voted on by the residents, with the most popular option (a specialist support service) being what the defendant decided to provide for a pilot period of one year. Perhaps surprisingly, no application to amend the Grounds in light of these developments was made (at [54]).

The hearing itself does not appear to have been an entirely satisfactory one. Shortly before the hearing, the claimant had indicated that she intended to seek a Protective Costs Order but, in the end, did not pursue this. It was also clear that there was a significant amount of evidence filed, not very much of which appears to have assisted his Lordship (see his comments at [64]), and – at least as regards the evidence from the Claimant – he found to be “curious… for what it does not say…” (at [68]). In addition, as the case was argued before the Court of Appeal gave judgment in Weaver, the parties were given permission to submit written submissions on that case once the judgment was handed down.

Mumby LJ was of the view that the only matter before him was the legality of  “the Defendant’s decision not to continue to provide a resident warden following [the retirement of the original warden]…” (at [60]). This required him to consider “the nature and content of the relevant obligations (if any) owed by the Defendant to the Claimant” and then whether “the Defendant breached any of those obligations” (at [61]).

It was clear that the only obligations between the parties were found in the tenancy agreement. The obligations (insofar as material) were to provide a Warden Service (which, in the factual context of the case, meant a resident warden) and to consult before varying the services (at [72] and [76]). Framing those obligations as “legitimate expectations” added nothing. They were contractual obligations and the entire extent of the obligation was contained in the contract (at [78]-[79]).

It was also clear that the defendant had breached those obligations. There was no doubt that it had not consulted prior to making the changes to the resident warden service (at [80]-[81]). The fact that an “equivalent service” may have been provided pending consultation was irrelevant. Whether or not sheltered housing ‘required’ a resident warden was similarly irrelevant. The contract provided for consultation and that had not been complied with (at [84]).

Thus, the defendant was in breach of its (contractual) obligations to the claimant in failing to provide a resident warden without consulting the claimant.

The problem was one of relief. Even if this was a public law claim (which his Lordship declined to decide – at [89]), a quashing order would be inappropriate and a declaration would be sufficient. A declaration to that effect would be made. Permission to move for JR was also granted (at [90]-[93]).

The claimant had indicated that she intended to advance further arguments relating to a pure private law claim and designed to knock out the power of the defendant to vary the services provided at all. Those arguments (at [95]-[96]) are much more (legally) important but, as Mumby LJ said, will need to form part of another case.

So. What we’ve got here is quite a narrow judgment on the interpretation and application of one tenancy agreement. Mumby LJ is plainly right that there had been a breach of the obligations of the tenancy, but, with the greatest respect, his analysis on whether this is a public/private law dispute is remarkable. Permission to move for Judicial Review was granted, but the court declined to hold that this is a public law dispute!? If this is a private law matter then permission is not needed and the case should be transferred to the QBD / county court. If permission is needed (and granted) then this must be a public law case. I can understand why Mumby LJ didn’t want to deal with Weaver but, frankly, this is a terrible cop-out. For what it’s worth, this appears to me to be an entirely private law matter, where relief should sound in either an injunction to restrain the breach of contract or damages.

A victory then, for the claimant, but perhaps not of the general importance or significance that sheltered housing campaigners might wish. Having said that, if they pursue the additional arguments that they sketched out at the end of the judgment then we might get a much more interesting result. Given the criticism which his Lordship expressed of the defendant (see [28], in particular), one imagines that they’d be advised to settle any further private law claim brought against them.

This was an appeal heard by the House of Lords over the course of four days in July, but with judgment delivered by the new Supreme Court.  We reported the Court of Appeal’s judgment here.  At issue was to what extent the courts could review the decision of a local authority that an individual is over the age of 18.  On one view this case turns on a narrow point about construction of the Children Act 1989 and does not really need a lengthy examination on a housing law blog.  I’m going to suggest that there is plenty of juicy stuff in here, albeit obiter, that is worthy of consideration.

The normal order of things is of course for young people to claim to be older than they really are.  Scores of cottage industries churning out fake IDs have depended on this pretty much since the dawn of time.  Claiming to be younger than one really is has long been the preserve of Hollywood actresses, supermodels and footballers of a certain nationality (allegedly).

However, there are certain benefits to being found to be under 18.  It opens the door to accommodation under the 1989 Act.  Someone over 18 is not capable of being a “child in need” under s.20(1) and cannot therefore be entitled to accommodation under that section.  There are other legal consequences that flow from this, see for instance the discussion in R (M) v Hammersmith & Fulham [2008] UKHL 14.

Everyday experience tells us that assessing someone’s age accurately is no easy task.  It will be clear that the decision in these cases is an important one to get right.  Quite apart from the resource implications, which are not insignificant, wrongly classifying a child as an adult, or vice versa, can lead to serious consequences for them.  In this regard it is probably better to exercise any element of doubt in favour of assessing someone as younger rather than older.  As an ILPA report has stated “the risks of wrongly treating children as adults are considerably higher than the other way round.  This is because the children’s system has in-built support and supervision to prevent children from being harmed.  No such safeguards exist in the adult system.”  This was endorsed by the Children’s Commissioner for England before the Court of Appeal in this case.

Facts

The facts of these cases can be very briefly stated.  The appellants arrived as unaccompanied asylum seekers.  They claimed to be under 18, but social workers decided that they were over the age of 18, despite there being some medical evidence in both cases to suggest that they were under 18.  In A’s case there was some documentary evidence too, while in the other an immigration judge had accepted that M was 17 years old.

Issues

There were three issues before the House of Lords, identified by Lady Hale at [13]:

1. is the duty imposed by s.20(1) owed only to a person who appears to the local authority to be a child, so that their decision can only be challenged on Wednesbury principles, or is the duty owed to any person who in fact is a child, so that a court can determine the issue on the balance of probabilities?
2. is the issue of whether someone is a child is one of precedent fact to be decided by a court on the balance of probabilities?
3. does s.20(1) give rise to a civil right so that Art 6 of the ECHR is engaged and, if so, is the process whereby social workers assess age coupled with the availability of JR on Wednesbury principles sufficient compliance with Art 6?

Children Act 1989

It may be helpful to set out a few of the relevant provisions of the 1989 Act here.

Section 17(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.

Section 20(1):

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.

Section 105(1):

In this Act—

… “child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen

Note that paragraph 16 of Schedule 1 does not apply in this case.

‘Child’ or ‘Child in Need’?

So ‘child’ is defined as “a person under the age of eighteen”.  This is the definition used throughout the Act.  As the appellants argued the definition was not:

[14] … “a person who appears to the local authority to be under the age of eighteen” or “a person whom the local authority or any other person making the initial decision reasonably believes to be under the age of eighteen”.  Reaching the conclusion that this is what it means in section 20(1) requires, as the Court of Appeal accepted, words to be read in section 20 which are not there.

The respondent LAs argued (see [20]) that “child in need” was a composite term of art that requires the sorts of professional value judgment that Parliament cannot have intended should be made by the courts.

Lady Hale gave the lead judgment, with which all members of the Court agreed.  In her opinion:

[26] … The 1989 Act draws a clear and sensible distinction between different kinds of question. The question whether a child is “in need” requires a number of different value judgments. 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? What amounts to a significant impairment of health or development? How likely is that? What services might avoid it? Questions like this are sometimes decided by the courts in the course of care or other proceedings under the Act. Courts are quite used to deciding them upon the evidence for the purpose of deciding what order, if any, to make. But where the issue is not, what order should the court make, but what service should the local authority provide, it is entirely reasonable to assume that Parliament intended such evaluative questions to be determined by the public authority, subject to the control of the courts on the ordinary principles of judicial review. Within the limits of fair process and “Wednesbury reasonableness” there are no clear cut right or wrong answers.

[27] But the question whether a person is a “child” is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers.

[28] …In section 20(1) a clear distinction is drawn between the question whether there is a “child in need within their area” and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons.  In section 17(10) a clear distinction is drawn between whether the person is a “child” and whether that child is to be “taken to be” in need within the meaning of the Act.

Lord Hope agreed at [51]:

The question is whether the person is, or is not, under the age of eighteen. However difficult it may be to resolve the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.

This leads into whether or not the question is one of jurisdictional or precedent fact.  In the Court of Appeal Ward LJ thought this was not a precedent fact case because he viewed the question as whether a person was a “child in need”.  Lady Hale thought that this was looking at the wrong question:

[32] However, as already explained, the Act does draw a distinction between a “child” and a “child in need” and even does so in terms which suggest that they are two different kinds of question. The word “child” is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.

Lord Hope again agreed:

[53] … The question whether the child is “in need” is for the social worker to determine. But the question whether the person is or is not a child depends entirely upon the person’s age, which is an objective fact. The scheme of the Act shows that it was not Parliament’s intention to leave this matter to the judgment of the local authority.

Therefore, where there is a dispute, the courts can determine an applicant’s age on the balance of probabilities as part of judicial review proceedings.  JR can be adapted to deal with the determination of questions of fact, see R (Wilkinson) v Broadmoor Special Health Authority [2001] EWCA Civ 1545 (see in the present case Lady Hale at [33] and Lord Hope’s comments on the practical consequences at [54].

Article 6

Although this was enough to deal with the appeal both Lady Hale and Lord Hope went on to consider whether a civil right was being determined and therefore whether Article 6 was engaged.  Although this part of the opinions is strictly obiter, it is still very important and will presumably have an impact in other situations, so all of [35]-[45] and [55]-[65] are worth looking at.  It will become apparent that there was here a slight divergence of opinion on whether Art 6 applied.

Firstly, it will be remembered that in Runa Begum the House of Lords had assumed without deciding that a claim to be provided with accommodation under Part VII of the Housing Act 1996 could give rise to a civil right.  However, there is no Strasbourg case that has gone that far.  The appellants relied on a series of Russian cases (such as Teteriny v Russia and Sypchenko v Russia), which they claimed did establish this proposition.  Both Lady Hale and Lord Hope noted that there did not appear to be any argument on the point in the Russian cases and they did not assist the Court.

Lady Hale concluded at [40] that:

…[I]f a right such as this is a “civil right” at all, it must lie close to the boundary of the concept and not at the core of what it entails. If so, this may have consequences for the second question, which is what article 6 requires.

Lord Hope was prepared to go further.  I won’t break the whole thing down, but after considering the authorities at [55]-[64] he concluded that:

[65] …I think that it can now be asserted with reasonable confidence that the duty of the local authority under section 20(1) of the 1989 Act to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of the factors mentioned in that subsection does not give rise to a “civil right” within the meaning of article 6(1) of the Convention.

Given her conclusion Lady Hale went on to consider what Art 6 required, if it was engaged.  She said that:

[44] I would be most reluctant to accept, unless driven by Strasbourg authority to do so, that article 6 requires the judicialisation of claims to welfare services of this kind. Unlike the arguments based upon statutory construction and jurisdictional fact, Mr Howell’s [counsel for A] argument cannot sensibly distinguish between the determination of age and the determination of the other criteria of entitlement. Every decision about the provision of welfare services has resource implications for the public authority providing the service. Public authorities exist to serve the public. They do so by raising and spending public money. If the officers making the decisions cannot be regarded as impartial, and the problem cannot be cured by the ordinary processes of judicial review based upon the usual criteria of legality, fairness and reasonableness or rationality, then tribunals will have to be set up to determine the merits of claims to children’s services, adult social services, education services and many more. Resources which might be spent on the services themselves will be diverted to the decision-making process. Such a conclusion would be difficult, if not impossible, to reconcile with the decision of this House in Runa Begum. The degree of judicialisation required of an administrative decision, in the view of Lord Hoffmann in Alconbury, depends upon the “nature of the decision”.

[45] If this is a civil right at all, therefore, I would be inclined to hold that it rests at the periphery of such rights and that the present decision-making processes, coupled with judicial review on conventional grounds, are adequate to result in a fair determination within the meaning of article 6.

Lord Walker acknowledged the force of Lord Hope’s reasoning on Article 6, but preferred to leave the point open.  Lords Scott and Neuberger agreed with Lady Hale.

I think that this result must be right, it is the one that gives effect to what must have been the intention behind the Act.  Make no mistake though, this is going to leave the Admin Court with some difficult decisions to deal with.  If you doubt this then look back at the Guidelines for Paediatricians quoted at [5] in the CA’s judgment, or see the difficulties that Collins J identified at [15]-[32] in the connected case (reported by us here).

While at first blush I find the idea that this is not a civil right quite a difficult one to accept, I must admit that the argument is quite compelling.  This does seem to be the correct interpretation of the Strasbourg case law. It will be interesting to see whether this will affect the appeal in Ali v Birmingham which the Supreme Court finished hearing two days before this judgment was handed down.  In the CA Ward LJ had been comforted by the decision in Ali that JR did provide compliance with the standard required by Art 6.  Apparently both Lord Hope and Lady Hale heard the appeal in that case (it’s shown with Tomlinson as the lead case, but Tomlinson dropped out of proceedings at the CA stage).  Of course the present case was heard before judgment in Crompton v UK, but I’m not sure that that case takes the argument any further.

1. The courts can review whether a person is a “child” for the purposes of the Children Act 1989, this is a separate question to whether they are “in need”;
2. Ordinary domestic judicial review can be adapted to deal with this where necessary;
3. If s.20(1) does give rise to a “civil right” for Art 6 purposes it is close to the boundary of that concept (per Baroness Hale); or
4. The duty of a LA under s.20(1) does not give rise to a “civil right” (per Lord Hope);
5. If it is a civil right conventional judicial review is enough to comply with Art 6.

The appeal was therefore allowed.  Points 3, 4 and 5 are obiter.

Our report on the Court of Appeal decision is here.