Tag Archive for 'Children Act'

Accommodating an abducted child

Published by NL on 01/06/2010 in Community care, FLW case note, Homeless and Housing law - All. 0 Comments Tags: , , , , .

EA v GA & Westminster City Council & Salford City Council [2010] EWCA Civ 586 [Not on Bailii, transcript on Lawtel]

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.

M not G

Published by NL on 06/05/2010 in Community care, FLW case note, Homeless and Housing law - All. 3 Comments Tags: , , , .

TG, R (on the application of) v London Borough of Lambeth [2010] EWHC 907 (Admin)

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.

Not their decision to make

Published by NL on 03/05/2010 in Community care, FLW case note, Homeless and Housing law - All. 0 Comments Tags: , , , , .

Birmingham City Council v Clue [2010] EWCA Civ 460

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.

Each had a wooden horse

Published by chief on 29/11/2009 in Community care, FLW case note, Homeless and Housing law - All. 1 Comment Tags: , , , .

R (A) v Croydon & R (M) v Lambeth UKSC [2009] 8

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.

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.

Child in Need, Indeed

Published by chief on 26/11/2009 in Community care, Homeless and Housing law - All. 2 Comments Tags: , , , .

The Supreme Court has handed down judgment in the case of R (A) v Croydon and R (M) v Lambeth [2009] UKSC 8.  This is an important decision about the duty of LAs under s.20(1) of the Children Act 1989 to “provide accommodation for any child in need within their area”.  We will look at this judgment in more detail soon [edit: see here], but for now what you need to know is:

  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.

Long on principle, short on detail

Published by NL on 21/10/2009 in Community care, FLW case note and Housing law - All. 0 Comments Tags: , , , , .

S (A Child), R (on the application of) v Plymouth City Council [2009] EWHC 1499 (Admin)

Not sure how we missed this one and thanks to the Legal Action housing updates for the elbow to the ribs.

This was a permission hearing on an application for judicial review of Plymouth Council’s handling of a child in need under s.17 Children Act 1989, specifically how accommodation needs were dealt with.

S was an 11 year old child who was autistic and had behavioural difficulties. He lived with his mother and brother. it was not in issue that he was a child in need for the purposes of the Act. The family lived in a two bed flat, which placed severe pressure on his mother and his 6 year old brother.

S.17(6) of the Children Act states:

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.

Assessment of children in need under s.17 is shaped by the 2000 guidance “Framework for the assessment of children in need and their families”, and it is made clear that Local Authorities are to have regard to this guidance and that although not statutory in effect, it should be complied with “unless local circumstances indicate exceptional reasons which justify a variation”.

The document states that a core assessment must be carried out:
“… an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context.” [chapter 3.11]

and the conclusion of an assessment should result in:

• an analysis of the needs of the child and the parenting capacity to respond appropriately to those needs within their family context;
• identification of whether and, if so, where intervention will be required to secure the wellbeing of the child or young person;
• a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review. [chapter 4.1]

Note the emphasis on a ‘realistic plan of action’.

A core assessment had not been carried out when judicial review proceedings were issued. Over the following year (!) prior to this permission hearing, a core assessment was produced by Plymouth. The Claimant maintained that the assessment did not contain a realistic course of action. Amongst issues such as respite care and identification of carers, was the problem of accommodation for the family.

Both Social Services and housing departments accepted that the family required a 3 bed property. The mother’s transfer application had been rised to band B priority from band C in a CBL scheme, but no suitable properties had become available on which the mother’s bid was successful. Private sector accommodation had been raised as an alternative by social services. The mother would lose her secure tenancy and her transfer status, effectively starting from scratch.

There was nothing unlawful about the way her transfer application was dealt with under the allocation scheme. However, Plymouth Social Services’ position on assistance with a private sector tenancy was that they were:

willing to assist [the mother] to secure three-bedroom accommodation in the private rented sector to the extent that they will provide financial assistance by giving her money for a deposit on a property and 1 month’s rent in advance. [The mother] will be entitled to housing benefit to assist her with the rent, but if her housing benefit is less than the contractual rent, the defendants will not fund the shortfall in rent on a continuing basis, because it is likely that she will be re-housed by the housing department, provided she actively pursues her transfer application, particularly if bids for flats and maisonettes and properties in a greater number of areas in Plymouth than she has currently considered.

Held:

34. Initially it seemed to me that what Ms Thornley says in those paragraphs goes as far as Plymouth City Council could reasonably be expected to go. They plainly feel that the mother ought soon to be able to obtain adequate housing through the housing department and, accordingly, have limited their offer of assistance to S to providing a deposit and 1 month’s rent in advance. They are not willing to bridge any gap between housing benefit and actual rent, because they take the view that the mother can adequately re-house herself and her children in council housing. But I have been persuaded by Mr Wise that what Ms Thornley says in those paragraphs does not, in the end, amount to a realistic plan of action, including services to be provided. It does not engage with specifics at all. It does not identify any sample property, or properties, that Plymouth City Council put forward as appropriate for the family in the private market. It does not, accordingly, engage with the actual cost of renting such a property, nor the difference between that cost and the housing benefit to which the mother is, or may be, entitled. In other words, it is long on principle but very short on detail.

35. It does seem to me that the local authority have got to be much more proactive in working together with the mother to see exactly what might be available in the private sector, what it would cost, the extent of housing benefit that the mother can obtain towards that cost and the extent, if any, to which Plymouth City Council ought to, and is willing to, bridge any difference. In short, the alternative of renting in the private sector with financial help from Plymouth City Council needs a great deal more exploration than has so far been done. It is only when Plymouth City Council, working no doubt in co-operation with the mother, have come up with a fully-costed and detailed alternative for renting in the private sector that they can be said to have actually produced a realistic plan of action in relation to accommodation.

Permission granted for JR for a declaration that the core assessments did not yet provide the required realistic course of action. The parties urged to go back to Plymouth and focus on sensible and realistic ways of helping S.

This is useful, albeit only a permission hearing, in focussing on the kind of practical detail and concern a core assessment needs to contain. It is clear that simply identifying possible courses of action and setting a fixed response (e.g. on aid with rent) is not sufficient – the issue is what constitutes a realistic course of action.

A disgraceful situation and an excellent answer

Published by J on 10/10/2009 in Community care, FLW case note and Housing law - All. 1 Comment Tags: , .

R (A) v Leicester City Council and the London Borough of Hillingdon [2009] EWHC 2351 (Admin) (only on Lawtel) is an attempt to answer the “interesting question” posed by the Court of Appeal in R (Liverpool CC) v LB Hillingdon and AK (interested party) [2009] EWCA Civ 1702 (noted by us here), namely, whether more than one local social services authority can owe a duty under s.20, Children Act 1989, to the same child at the same time.

Ms A is an orphan from Somalia who arrived in the UK when she was 16 1/2 years old. She claimed asylum upon her arrival in the UK, but this was rejected on the basis that she was a child. Upon the determination of her asylum claim she was released into the care of the London Borough of Hillingdon (Hillingdon). She immediately told social workers that she wanted to move to Leicester to live with a family of Somalis that she knew.

She moved to Leicester – of her own volition (such that Hillingdon thought she had run away and reported her to the police as a missing person) – in August 2007 and approached Leicester City Council (“Leicester”), and the legal conundrum began.

Hillingdon took the view that, by leaving their area voluntarily, Ms A had ceased to be owed any duty by them under s.20 Children Act 1989 and, in their view, Leicester now had to care for her as they saw fit. Leicester did not agree with this, pointing out that Hillingdon had not undertaken any assessment of her needs and, hence, could not have discharged any duties owed to Ms A. The two local authorities could not agree as to the way forward and Ms A was forced to issue judicial review proceedings against them both, seeking to determine which one of them was responsible for assessing and meeting her needs.

The case came on before Collins J in April 2008 when his Lordship expressed himself in robust (but entirely appropriate terms).

“This is a disgraceful squabble between the two councils at the expense of a vulnerable young persons”

Following this, a consent order was produced which had the effect at least of requiring a proper s.20 assessment to be carried out and identified needs to be met, subject to the local authorities arguing amongst themselves as to who should pay for it. Permission was subsequently granted to move for Judicial Review against both local authorities.

The claim was allowed. It was necessary for Hillingdon to have carried out an assessment under s.20, Children Act 1989. As Dyson LJ said in the Liverpool case “an assessment of needs will always be required.” Unless and until that was done, there could be no discharge of the s.20 duty. The duty “endures until such an assessment has taken place” and, depending on the result of the assessment, the duty may “survive such an assessment.” (at [48]).

Importantly, the mere fact that Ms A moved away from Hillingdon did not end their duty. The whole purpose of s.20 was to protect vulnerable children. The local authority must “display the infinite patience of a good parent and not take advantage of what may be impulsive and unwise acts to absolve themselves of [that] duty.”

That failing did not, however, absolve Leicester. Leicester could not refuse to offer support to Ms A. They were on notice that Hillingdon were denying responsibility and, during that time, Ms A was present in Leicester’s area. It should not have been “beyond the wit of two local authorities with access to legal advice and substantial – albeit not unlimited – resources to devise plans and contingencies for such situations” (at [51]). It was unlawful to defer the assessment until the two authorities could sort out who would discharge any identified needs. There was no reason why Hillingdon and Leicester could now owe concurrent duties to Ms A (at [55])

This is an important case. It should (although I’m not hopeful) end the disgraceful attempts by some social services authorities to avoid their s.20 obligations by letting/moving/encouraging a child to move to another area. If they can each owe the duty then there is no incentive to try these sorts of things. The appropriate approach is, as Collins J said, for the two authorities to agree that one of them will do the assessment and meet any identified needs on a “without prejudice” basis and to enable them to fight about the costs later if needed.

Child 'requires accommodation'

Published by NL on 21/05/2009 in Community care, FLW case note and Housing law - All. 5 Comments Tags: , , , , .

R (G) v Southwark [2009] UKHL 26 was the appeal to the House of Lords of this Court of Appeal judgment. At issue was whether Southwark could effectively avoid its s.20 Children Act duty to accommodate a homeless child by referral to the Housing Department by way of application under Part VII Housing Act 1996. The earlier post gives the factual background, but briefly G was 17 when he approached Southwark Social Services, after being thrown out of his family home and sofa surfing with friends. Southwark assessed him as having primary needs in housing and education, and suggested referrals to the HPU and to other agencies, including social services’ Family Resource Team. G was given hostel accommodation, which Southwark later asserted to be temporary acccommodation under Part VII HA 1996. G sought judicial review, which then went to the Court of Appeal, who upheld Southwark’s view, and thence to the Lords.

Southwark had argued that G did not require accommodation, but rather ‘help with accommodation’ because he would be eligible under Part VII HA 1996. In the Lords, Southwark’s submission, via Mr McGuire, was:

In deciding whether a child “requires accommodation” under section 20(1), the authority are entitled to take into account the other sources of accommodation which may be available to the child and conclude that he does not require social services accommodation at all. All he requires is help to find or acquire that other accommodation, under the authority’s general duty to provide services under section 17. He acknowledges that, before 2002, alternative sources of accommodation would not generally have included the homeless persons unit. Now that they do, however, the children’s authority are entitled to conclude that this will suffice, even if other services are also required, rather than the whole paraphernalia of becoming a “looked after” child. He stresses that section 20 should be read in the light of the local authority’s functions under in section 17, and prays in aid certain passages from the opinion of my noble and learned friend Lord Hope of Craighead, in R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208, at paras 81 and 100. [para 21].

G’s submission was simply that all the elements required by s.20(1) were met in this case. He therefore ‘required accommodation’ within the meaning of s.20(1) even if there was another way accommodation could be found for him.

The Secretary of State, intervening, said that the presumption must be that all lone children who meet the s.20(1) criteria must be accommodated by children’s services authorities “at least until their needs have been properly assessed and plans are in place to meet those needs” [para 20].

Baroness Hale’s lead opinion is very clear and, well, forthright.

It came as ‘something of a surprise’ that the case had reached the Lords in the light of R (M) v Hammersmith and Fulham LBC [2008] UKHL 14. In that case the Lords had made it clear that when a child approached the housing authority for accommodation, they should be referred to children’s services for assessment under the Children Act. It had not been contemplated at that time that had M been assessed as falling under s.20(1) she might still have been referred back to the housing authority. As was said at para 4 of M v Fulham, the clear intention of the legislation was that chidren need more than a roof over their head and children’s services cannot avoid their responsibilities by passing them over to the housing authority. [Para 5].

The tone thus set, Baroness Hale points out that while children aged 16 & 17 were expressly included as having Part VII HA 1996 priority by SI 2002/2051, those children to whom a s.20 duty is owed and ‘relevant’ children who have been looked after by the LA are expressly excluded.

So, if a child is owed a s.20 duty, they are not eligible for Part VII purposes. The Children Act takes primacy over the Housing Act. The issue is, quite simply, what do the criteria in s.20(1) mean. As previous case law had shown, if a s.20 duty has arisen and the Council has provided accommodation, it cannot side step the duty by claiming to have acted under some other power [R(H) v Wandsworth BC [2007] EWHC 1082 (Admin); R(D) v Southwark LBC [2007] EWCA Civ 182; etc.]. In particular the LA can’t claimto have been acting under the general s.17(1) CA general duty. So it is only s.20 at issue here.

The case prayed in aid by Southwark, R(G) v Barnet, actually concerned accommodation for a child together with its mother. it was not in issue that the child was owed the s.20 duty, the question was did the duty extend to accommodating the family. The case actually highlights the primary duty owed to individuals under s.20 over the general duty to children and families in s.17. [para 25]

Granted, there may be some homeless 16 or 17 yo who are not owed a s.20 duty. But that is not the same as saying they are not owed a s.20 duty because they are or may be owed a HA 1996 duty. This is circular reasoning. A child who requires accommodation under s.20)1 is exclude from HA 1996 priority.They can’t be put back in to priority need by saying they do not require accommodation when clearly they do. [para 26].

It is not for the LA to decide that, because they do not like what the duty to accommodate involves or do not think it appropriate, they do not have to accommodate at all. R(A) v Coventry CC [2009] EWHC 34 (Admin) disapproved to the extent that it proposed reading into s.20(1) the words ‘under this section’ after requires accommodation. [para 27]. (our note on the case here).

S.20(1) involves a series of judgments, as set out in R(A) v Croydon LBC [2008] EWCA Civ 1445 at para 75:
1. Is the applicant a child?
2. Is the applicant a child in need?
3. Is he within the local authority’s area?
4. Does he appear to the LA to require accomodation?

But there may be cases where the child does have a home to go to, whether on his own or with family or friends, but needs help in getting there, or getting into it, or in having it made habitable or safe. This is the line between needing “help with accommodation” (not in itself a technical term) and needing “accommodation”. [para 28]

5. Is that need the result of:
a) there being no person who has parental responsibility.
b) his being lost or abandoned
c)the person caring for him being prevented from providing him with suitable accommodation or care. (This has a wide construction. Exceptions may include a 16 or 17 yo living independently, with a job and somewhere to live, without anyone caring for him, who then lost accommodation. This would not be s.20 but would be HA 1996 priority need).
6. What are the child’s wishes and feelings regarding the provision of accommodation?
7. What consideration (given age and understanding) should be given those wishes and feelings?
8. & 9. were not relevant here.

Every item in this list had been assessed in G’s favour by Southwark. Therefore the s.20 duty had arisen and Southwark could not side step it. This was enough to decide the appeal. [para 28].

The Secretary of State’s submissions were clear as to the result. But on s.17, while the Local Authority Circular LAC (2003) stressed that the ‘power to provide accommodation under s.17 will almost always concern children neding to be accommodated with their families’, it also said that ‘there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under s.17′. But before deciding this, the LA should carry out an assessment which should first establish if the child met the s.20(1) criteria. The Circular noted that some ‘older asylum seeking children had refused to become looked after although the CA was their only means of support’. In these cases, the Circular suggested that although the S.20(1) duty might appeared to be triggered, the LA might judge him competent to look after himself and provide help with accommodation without making him a looked after child.

Baroness Hale makes clear that, while this specific example might not trigger a s.20 duty by the step by step analysis above, insofar as the Circular suggests that the LA might have a choice between s.17 and s.20 based on whether the child needs to be ‘looked after’, it is incorrect. An evaluative judgment may be involved, but not a discretion [para 31].

The SoS submissions that once assessment has been completed and rehabilitation with the family failed, a child’s long term interests might be best served by support to move to independent living, raised the prospect of the LA deciding that the child was no longer in need. But the whole purpose of the leaving care provisions was to ensure help with moving to independent living of the sort normally expected from families. LAs ‘should be slow to conclude that a child was no longer “in need” because he did not need that help or because it could be provided in other ways. [para 32].

Children’s Authorities have the power, under s.27 CA 1989 to ask other authorities, including housing, for help in the exercise of their functions, and that help must be provided if not prejudicial to the asked authority’s functions. This does not mean passing the buck on responsibilities, but assistance with discharging its duties. A housing authority cold be asked to make available a certain amount of suitable accommodation. [para 33]

Appeal allowed. G was accommodated under s.20 and is a ‘relevant child’ for s.23A(2) CA 1989.

Congratulations to Counsel for G, Ian Wise & Azeem Suterwalla, and particularly to solicitor Oliver Studdert of Fisher Meredith for seeing this one all the way through.

House of Lords newsflash

Published by chief on 20/05/2009 in Community care, Homeless and Housing law - All. 12 Comments Tags: , .

The House of Lords has today given its judgment in the case of R (G) v Southwark [2009] UKHL 26.  We reported the Court of Appeal decision here.  A fuller report will follow on Nearly Legal in due course, but as we may not finish it today the headlines are:

  • The House of Lords unanimously allowed G’s appeal, Baroness Hale giving the leading speech;
  • He therefore was entitled to accommodation under s. 20 of the Children Act, not simply s.17 help with accomodation;
  • Rix LJ’s dissenting view in the Court of Appeal (which was preferred in our report of that decision) was therefore the better one.

Age Assessment and Medical Reports

Published by NL on 11/05/2009 in Community care, FLW case note and Housing law - All. 0 Comments Tags: , , , .

Apologies for not getting this one out on Friday or over the weekend. It was on my list, but, frankly, the details of this were off my usual turf and it took an hour or several to digest and fit in place. So, only a day or so late…

A v London Borough of Croydon [2009] EWHC 939 (Admin) is a significant case in a long and convoluted saga. The issue is age assessment of unaccompanied asylum seekers who are or claim to be children (USAC), thereby falling under s.20 Children Act so that the Local Authority has the full duty to them.

The specific issue is the status of medical reports, often obtained by the USAC’s representatives and what, if any import these reports should have on the Local Authorities’ decision . A v Croydon and M v Lambeth, a related case, had previous had a hearing on the issue of whether the absence of any right to appeal or make representations on the LA’s assessment of age was a breach of Art 6. This issue went to the Court of Appeal in A, R (on the application of) v London Borough of Lambeth [2008] EWCA Civ 1445, which found no breach of Art 6. That decision is now been appealed to the Lords, to be heard in July 2009.

However, the High Court decided that was no reason not to continue with the JR hearings, with the issue being, as Lambeth had posed it

For the purpose of assessing whether a child is a child, is paediatric evidence of the sort produced by Dr Michie and/or Dr Birch in these cases scientifically ill-founded and of no evidential value?

In fact the issue is very properly more broadly dealt with – the value of medical evidence as to age for the LA age assessment and what regard the LA should have to it.

While all this was going on, a related case had been heard, apparently by accident, in A (By His Litigation Friend, Valbona Mejzninin), R (on the application of) v London Borough of Croydon [2008] EWHC 2921 (Admin). In that, Mr Stephen Morris QC had made some findings on procedure that Collins J expressly ‘corrects’ in this case.

This is a very long and very detailed judgment. But the upshot is quite simple, if very disappointing for representatives of UASCs.

1. There is no reliable medical means of assessment of age at present. Following Dr Stern’s view, Dr Birch’s methodology and reports (or any medical assessment at present) cannot be taken as carrying more weight than the opinion of a trained and experienced social worker.

2. An LA or Secretary of State cannot simply ignore a medical report, particularly if it arrives at different conclusions, but it is for the LA or SoS to decide how much weight to attach to an individual report, and it is open to them to attach no weight to it.

3. Reasons should be given for any conclusions reached on the weight to be given to the report but:

“in many, probably most cases all that will be needed is to say that the report has been considered but that the authority is not persuaded that there is anything in it which shows that its experienced social workers’ conclusion is or may be wrong. If there is some specific matter, such as a credibility finding which for good reason is regarded as erroneous or an observation which cannot be accepted, that can and should be identified.” [para 37]

4. As Para 38 states:

All this presupposes that the authority’s decision is made by properly trained and experienced social workers in accordance with the guidelines approved by Stanley Burnton J in B v Merton. Problems have arisen because of the belief that without obtaining the claimant’s written permission details of the age assessment cannot be disclosed to the Home Office. Since the system involves the decision being made by the LA and the Home Office accepting its decision provided that it is Merton compliant [R(B) v London Borough of Merton [2003] EWHC 1689 (Admin)], it seems to me that it is essential that the Home Office receives a full report. Only with such a report can it judge whether the assessment is reliable, particularly if there is a paediatrician’s report served which contradicts it or some other evidence which points in the other direction is provided.

5. In A v Croydon, at para 31, Mr Morris QC had stated:

As regards the particular issue of medical opinion in age assessment, the current position is as follows:

(a) Whilst it is not necessary for the local authority to obtain a medical report, a medical opinion will always be helpful:

(b) reliable medical opinion on the issue can only be got from one of the few paediatricians with experience in the area, but they may be of limited help (as in that case Michie was):

(c) When conducting or reviewing an age assessment, the local authority is under a duty to consider any medical report submitted:

(d) Where a local authority decides not to follow the views in a medical report, it is under a duty to give reasons for not following those views:

(e) A local authority should not ‘rubber stamp’ medical opinion, whether obtained by it or by an applicant: R v Wandsworth Borough Council ex parte Banbury (1987) 19 HLR 76 at 84-85. Osmani v Camden LBC [2004] EWCA Civ 1706 at para. 38(8). On the other hand, local authorities cannot be expected to make their own critical evaluation of applicants’ medical evidence and should have access to independent specialist advice, if they wish to disagree on medical grounds: Shala v Birmingham City Council [2007] EWCA Civ 624 per Sedley LJ at para. 19. In my judgment, this passage supports the preposition that, in such circumstances, the local authority is not only entitled, but is required to, obtain its own specialist advice.

In view of the above conclusions, Collins J finds that Mr Morris was wrong in a) and b). Medical Paediatric opinion would be difficult to obtain outside a very few individuals and, as stated, no more reliance can be placed on them than the opinion of the experienced social worker. Nor is e) correct. The LA will not be disagreeing on medical grounds as medical grounds cannot provide an answer. Shala distinguished for that reason. [para 47]

6. It may be that a medical report will highlight issues that have not been adequately decided, have been wrongly decided or simply omitted from the LA assessment. Judicial Review will be available, on Wednesbury grounds, but the issue is the LA failing to address the deficiency of the decision in itself, albeit highlighted by the medical report, rather than the issue being a simple difference in findings where the LA assessment was adequately conducted.

Kent’s contention in the conjoined case that medical evidence, and specifically that of Dr Birch, was of no value and could be ignored, was rejected. Croydon’s view that the LA should have regard to medical evidence submitted but it was entitled to decide what weight to attach to it was accepted.

Both claims, taken in detail, were dismissed as there was no significant failure or unreasonableness in the LAs’ decisions.

Given that there are over 70 Judicial Review claims on similar grounds outstanding, this is going to be a difficult time for a lot of claimants. Longer term, a lot will depend on the House of Lords decision on the Art 6 issue after the hearing in July.