The disconnection between Local Authority Social Services and housing departments has been a frequent topic here and in the courts, not least in the House of Lords decisions in R (G) v Southwark LBC [2009] UKHL 26 and R (M) v Hammersmith and Fulham LBC [2008] UKHL 14. There has also been plenty of Government guidance on the issue, both statutory and non-statutory: the 1999 “Working Together to Safeguard Children”; the 2000 “Framework for the Assessment of Children in Need and their Families”; the Homeless Code of Guidance in various versions; the 2008 “Joint working between Housing and Children’s Services: Preventing homelessness and tackling its effects on children and young people”; and the 2010 “Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation”.

So, one might reasonably expect Local Authorities to be fairly clear about what they ought to do when faced with a homeless 16 or 17 year old, which is to refer the child to its Children Services (Social Services) Department for assessment as a potential child in need. One might expect this. One might well be disappointed.

In this case, Lambeth failed to refer the young person, and still don’t have a policy in place for such interaction between housing, youth offending services and Childrens Services departments (although a draft is apparently ‘just about to be signed’). Still more worryingly, when Shelter and Children’s Legal Services requested information from 144 Local Authorities about their procedures as research for their intervention in this case, two thirds failed to respond at all and the level of compliance in those that did reply was ‘a mixed picture’.

It is against this background of a persistent and possibly widespread failure to implement the required procedures by Local Authorities that this case plays out.

In 2006, TG, who was known to the Lambeth Youth Offending Services (YOS), approached a member of YOS, Ms Acquah, and told her he could no longer remain living with his mother and intended to apply to Lambeth Homeless Persons Unit as homeless. He was 16. Ms Acquah was a qualified social worker with experience in working with children and young people. After speaking to TG’s mother, Ms Acquah wrote a report which she gave to TG to give to the HPU. The report concluded “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”. Lambeth Housing Department then provided TG with accommodation under Part VII Housing Act 1996 and the HPU did not make a referral to Children’s Services.

In 2009, when TG was 20 and in need of housing assistance, following contact from TG’s solicitors, Lambeth decided he was not a ‘former relevant child’ under section 23C(1) Children Act 1989 and that he was therefore not owed the continuing duties. This was on the basis that TG had not been a ‘looked after child’ for the 13 weeks needed to be an eligible child or indeed at all.

TG brought a judicial review, asserting that the housing provided by Lambeth Housing was, or should have been assistance under s.20 Children Act 1989. At hearing of the Judicial Review in 2010 (our report here), the claim was dismissed on the basis that, although Ms Acquah was a social worker, she was not part of the Children’s Services Department. Therefore, following R(M) v Hammersmith, and as Children’s Services had not had any contact with TG, the accommodation provided by the housing department could not be classed as being under s.20 Children Act. Although 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 was not enough to bring the case over the ‘dividing line’ set in R(M) v Hammersmith.

TG appealed to the Court of Appeal, with Shelter intervening in writing.

The Court of Appeal politely but firmly disagreed with the High Court. Firstly, it was not the case that Lambeth ‘probably’ should have referred TG to Children’s Services ‘as a matter of good practice’. The 1999 guidance then in force, given under s.7 Local Authority Social Services Act 1970, stated:

A number of the children and young people who fall within the remit of YOTs will also be children in need, including some whose needs will include safeguarding. It is necessary, therefore, for there to be clear links, both at [Area Child Protection Committee]/YOT strategic level, as well as at child-specific operational level, between youth justice and child protection services. These links should be incorporated in each local authority’s Children’s Services Plan, the ACPC business plan and youth justice plan itself. At the operational level, protocols are likely to be of assistance in establishing cross-referral arrangements.

This was guidance on which the Local Authority “shall… act” (s.7). “In the absence of a considered decision that there is good reason to deviate from it, it must be followed”. Lambeth had failed to do so with no good reason.

On the facts, Ms Acquah certainly should have referred TG to Children Services for assessment. Has she done so, it was clear that, as in her report, he would have been a child in need under s.17 Children Act and the s.20 duty would have arisen.

While the situation did resemble that in R(M) v Hammersmith, it was not the same.

Ms Acquah was a social worker with qualification in child care and support. She was appointed as a member of the YOS in 2005. YOS was part of a division of Children’s and Young Persons Services in Lambeth, although Children’s Services per se was another division. In October 2005, Crime and Disorder Act 1998 section 39(5)(aa) came into force, which provided that the YOS should include at least one “person with experience of social work in relation to children nominated by the director of children’s services”. Ms Acquah was therefore:

not merely a qualified social worker with experience of social work in relation to children: her membership of the YOS reflected a statutory requirement that at least one of its members should have such experience. In the YOS she represented, as Lord Justice Toulson suggested in argument, the eyes and ears of the children and families division of the CYPS.

Lambeth’s (astonishing) argument was that Ms Acquah had not been nominated to be the person with experience of social work in YOS by the Director and that no-one had ever been so nominated. In effect, they sought to defend the appeal by arguing that Lambeth had been and remained in continuous breach of its duty under s.39(5)(aa). The Court of Appeal did not agree. Nomination involved nothing special and by continuing Ms Acquah’s secondment to YOS, the Director ‘nominated’ her.

Therefore Ms Acquah’s actions could be imputed to the Children’s Services department. Indeed her report was only suited for the consideration of that department, not the housing department. As TG had been in contact with Children’s Services through Ms Acquah, Lambeth’s actions fell to be considered in terms of what they should have done.

On the evidence, there was no doubt that TG would have been assessed as a child in need. Contrary to Lambeth’s argument that TG may well have not agreed to s.20 support if it had been offered, he would have accepted it, as it was manifestly in his interests to do so. This part of TG’s appeal allowed – he should indeed have been treated as a ‘former relevant child’ in 2009. TG was now 22, however, and beyond the age limit for assistance as a former relevant child. The parties were to seek an agreement on future steps or at least an enquiry into what support should now be given.

The Court of Appeal is clear that this judgment should serve to “advertise the need for all local authorities to take urgent steps to remedy” any failure to ensure co-ordination between housing, youth offending and Children’s Services departments.

There was also the question of the past. TG had been deprived of support as a child in need and the continuing duty to a former relevant child. His claim for judicial review also included a claim for damages for breach of Article 8 under the Human Rights Act.

Although it was a technical possibility, the European Court of Human Rights had never held that a failure to provide financial or other support to a person amounted to a breach of Art. 8. If the failure was so gross as to amount to inhuman or degrading treatment, then Art 3 was engaged. In Andersson and Kullman v. Sweden (1986) 46 DR 251, the COurt dismssied an application that a failure to pay childcare payments was a breach of Art 8. In Marzari v. Italy (1999) 28 EHRR CD 175, a claim that moving the disabled applicant from an adapted flat to another, unsuitable, one was a breach of Art 8 was declared inadmissible:

… although Article 8 does not guarantee the right to have one’s housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8 …
… no positive obligation for the local authorities can be inferred from Article 8 to provide the applicant with a specific apartment.

However, there was a domestic case where a breach was found. R (Bernard) v. Enfield LB [2002] EWHC 2282 Admin, on a failure to provide suitable accommodation under s.21 National Assistance Act 1948 to a severely disabled elderly woman and her family. A breach of Art. 8 was found as they had been condemned to living conditions held to mean that it was virtually impossible for them to have any meaningful or private life.

No breach was found in the joined appeals of Anufrijeva v. Southwark LBC and R (N) v. SSHD, [2003] EWCA Civ 1406, ” In Anufrijeva Southwark had failed to discharge its duty under the Act of 1948 to provide accommodation suitable for two parents and for three children, together with a grandmother who was substantially disabled and in extremely poor health. In N the SSHD had wrongfully ceased to pay state benefits to an asylum-seeker as a result of which (so far as relevant) he had had to sell all his furniture and kitchen equipment and therefore to sleep on the carpet and to eat cold food. This court held that in neither case was there a violation of Article 8.”

In this latter case, the Court noted that it would be a very rare case in which a failure to provide positive support would be a breach, save perhaps where resulting degradation was such as to invoke Art. 3, and went on to observe, in relation to Bernard:

“We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that art 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage art 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, art 8 may require the provision of welfare support in a manner which enables family life to continue.”

Although there had undoubtedly been a significant failure by Lambeth, and TG had been deprived of the pathway plan, of the adviser and [...] of financial and other support for the appellant pursuant to ss 23B and 23C of the Act, the question was what the situation was of TG now (or over that time) that arose through Lambeth’s failure.

He does not contend that from 2006 to date he suffered inhuman or degrading treatment for the purposes of Article 3. It appears that from October 2006, when he ceased to be accommodated by Lambeth, until October 2009, when a possession order was made against him, he was the holder of an assured shorthold tenancy of accommodation granted to him by the YMCA; that from then until December 2009, in response to the threat of these proceedings, Lambeth again provided him with accommodation as a children’s services authority; and that since December 2009 it has done so as a housing authority under the Act of 1996. The appellant does not contend that at any material time he was on the streets or lacked the funds with which to subsist.

The impact on TG’s private, social and work life in evidence was far too nebulous, speculative and apparently slight to give rise to an Art 8 breach. The duties to aid personal development were cast at an appropriately high level “of which we should all be modestly proud and which in my view we should strive to retain in being notwithstanding the state’s temporary financial difficulties,”, but they are creatures of statute and enforceable only on that basis. They are not the manifestation of the State’s obligation under Art 8. Permission for a claim for damages under Art 8 refused.

Comment
Local Authorities should take careful note if they have not already implemented a suitable policy and procedure for referring 16 and 17 year old homeless children. Although not expressly held to be so in this case, there is a clear suggestion that the Court took the view that such a failure was unlawful, without considered reasons why.

Further, although not going against R(M) v Hammersmith, which is binding as a House of Lords decision, it is clear that the Court of Appeal was not prepared to see Lambeth escape their failure on a technical point on which social services department the social worker concerned belonged to, let alone whether she had been ‘nominated’ by the Director of Children and Young People’s Services or not..

While the principle of R(M) v Hammersmith was that it would be unfair to impose an additional degree of duty on unified authorities, as opposed to those where different authorities had housing and social services functions, that does not mean that unified authorities should or can avoid making the appropriate cross department connections.

The Art 8 damages point is perhaps unsurprising. The reluctance to cast specific provisions as a positive duty under Art 8 is understandable. But the lack of any recourse in damages in view of such a failure to carry out a duty is frustrating.

-or-

Not In My Admin Court

We have written before about age assessments for those who might be under 18 – see most recently our post on R (CJ) v Cardiff CC and, prior to that, our post on the Supreme Court decision in R (A) v Croydon (which remains our only post to take its title from a Rolf Harris chart topper).

The long and short of Croydon is that an assessment that a young person is over 18 may be challenged by JR in the Admin Court.

In FZ the applicant sought to do exactly that, but was refused permission for JR by a deputy High Court Judge.

Permission to appeal to the Court of Appeal was granted, partly to give it an opportunity to consider some problematic aspects of age assessment cases following the Supreme Court’s decision. The Court of Appeal (Sir Anthony May (President of the Queen’s Bench Division), Smith & Aikens LJJ )was therefore asked to address three issues:

1. Whether a local authority is obliged to give the person whose age they are assessing an opportunity to respond to provisional adverse findings which they are inclined to make;
2. Whether the local authority should in fairness offer the young person the opportunity to have an appropriate adult present at any age assessment interview;
3. How the court should address the question whether the factual issue of the young person’s age is arguable. Should it start by assessing the person’s positive claim, or should it first examine the apparent integrity of the local authority’s assessment?

Sir Anthony May (President of the Queen’s Bench Division) gave the judgment of the Court.

On the first issue, the CA held that an applicant should be given a fair and proper opportunity, at a stage when an adverse decision against him is no more than provisional, to deal with important points that may weigh against him [21]. The Court of Appeal was not prepared to be prescriptive of the way in which this might be done and expressly did not require a formal “minded to” letter to be sent in every case.

In FZ’s case fairness could have been achieved by the interviewing social workers withdrawing from the interview room at the end of the initial interview to discuss their provisional conclusions. These could be recorded, with brief reasons, in writing, which could then be put to the applicant to allow him the opportunity to deal with them. The Court of Appeal emphasised that this was not the only way in which fairness might be achieved [21].

On the second issue, the CA considered a variety of situations where a child is to be interviewed where they should be given the opportunity of having an appropriate adult present [23]. For example, in R (NA (Afghanistan)) v LB Croydon [2009] EWHC 2357 (Admin), Blake J held that the applicant should have been given such an opportunity. In the instant case, FZ had claimed to be a child and at the time it was agreed that he was. He was also known to have mental health problems. The Court of Appeal considered that he should have had the opportunity to have an appropriate adult present [23]-[25].

On the third issue, the test for permission, the CA said that at the permission stage in an age assessment case, the Administrative Court should ask whether the material before it raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay [9]. In FZ’s case, the court did “not consider that the appellant’s factual case taken at its highest could not properly succeed in a contested factual hearing” [29].

Permission to bring judicial review proceedings was granted and, significantly, the claim was transferred to the Upper Tribunal [30]-[32].

Why is that last part significant? Well, in our note of the earlier Croydon case it was suggested that the Admin Court was going to be left with some difficult decisions. In the comments to the Cardiff case, S pointed out that it took up three days of the court’s time and that the Admin Court was not the place for these kinds of hearings. In a somewhat different context, Collins J referred to the “problem” of the Supreme Court’s decision (see [46]-[48] of the post-judgment argument). Now the Court of Appeal has weighed in with what may be perceived to be rather thinly veiled criticism of the Supreme Court’s approach.

[4]. … [T]he court hearing the judicial review claim will often have to determine the fact of a claimant’s age by hearing and adjudicating upon oral evidence. This may be an extensive and time consuming process. The Supreme Court does not seem to have been concerned with the administrative consequences for the court of this. The judgments of Baroness Hale of Richmond JSC and Lord Hope of Craighead DPSC are expressed in terms which appear sanguine about this – see for example Baroness Hale at paragraph 33 and Lord Hope at paragraph 54. The Administrative Court does not habitually decide in orthodox judicial review proceedings questions of fact upon oral evidence, although it has power to do so in appropriate individual cases. It stretches the court’s resources to have to do so more than occasionally. Yet there were, on 12th January 2011, 64 age assessment cases in the Administrative Court’s list at various stages of progress.

Accordingly, the Court of Appeal has given further guidance on the procedure to be followed in age assessment judicial review claims. If an age assessment judicial review claim is started in the Administrative Court, that court will normally decide whether permission should be granted before considering whether to transfer the claim to the Upper Tribunal [31]. The expectation appears to be that these claims will now normally be dealt with in the Upper Tribunal, unless some jurisdictional reason prevents such a transfer [32].

But, on a more serious note, ascertaining the age of persons applying for assistance to a local social services authority is an important issue. As Chief has previously explained, being under 18 (and, hence, a child) opens the door to the grotto of goodies that is the Children Act 1989. Being over 18 leads to the doom and despair of adult social services. In many, if not most cases, it shouldn’t be difficult to find out the age of a person. The difficult cases tend to be those involving unaccompanied asylum seeking “children.”

In R (A) v Croydon the Supreme Court held that whether someone was over or under 18 was a fact capable of objective determination by the court; so, if the authority determined you were 21 and you disagreed, you were entitled to issue proceedings in the Admin Ct to have this point resolved by a Judge, after hearing any relevant evidence. What A left open was who would bear the burden of proof?

In R (CJ) v Cardiff County Council [2011] EWHC 23 (Admin), Mr Justice Ouseley had to resolve this question. The facts aren’t that important – basically, the issue is whether CJ was 15, 21, or some other age at the relevant time – what matters is how the Judge approached the question of burden of proof.

The evidence was finely balanced and neither side had established their primary cases (CJ couldn’t prove he was 15 and Cardiff couldn’t prove he was 21). Given that it was CJ who was seeking to establish that the authority were acting unlawfully by not supporting him under the 1989 Act, the burden fell on him to establish this. That, in turn, meant that the burden of proof as to the age of CJ rested with him.

As Ousley J recognised, this is unlikely to be a major issue in many cases; since in many cases it will be enough to establish that the claimant is in a particular age band (say, 17-19), at which stage he is likely to be given the benefit of the doubt. But, for those borderline cases, it comes back to “he who asserts must prove”.

I’m a bit slow in getting to this one (and the rest of our backlog). We’re all more than a little busy. My apologies.

This is the Court of Appeal hearing of a case that first surfaced as a more than surprising result in a Judicial Review decision – [2010] EWHC 634 (Admin) [which we unaccountably missed at the time] – in which the court found that a Local Authority could derive no power to provide accommodation for a ‘formerly relevant child’ under s.23C(4)(c) Children Act 1989, although the primary issue at JR had been whether the LA or NASS had a duty to accommodate a formerly relevant child who was also an asylum seeker.

Unsurprisingly, the JR went to the Court of Appeal. The Court of Appeal noted that this was a complex issue, as evidenced by the actions of the Secretary of State for the Home Department, who, having been joined, took the view that there was no power to accommodate under s.23C(4)(c) and in any event, that the LA was entitled to rely on accommodation being provided by NASS. That was until a week before the hearing, at which the SoS argued precisely the opposite. The Children’s Society also applied to be joined as intervener.

The background was that SO had applied for asylum in 2007 as an Eritrean child. The LA had assessed him as being 17. The SoS had refused his asylum claim on the basis that he was a 20 year old Saudi who had applied for entry as a visitor. That case went to appeal and was dismissed and a fresh claim was refused. Meanwhile, SO had been accommodated as a child under s.20 Children Act by the LA, which had not revisited it’s own assessment of SO’s age. The LA continued to accommodate SO until June 2009 when support was terminated, in part because accommodation was available from NASS under s.4 Immigration and Asylum Act 1999. This decision was challenged in the present proceedings.

The Court of Appeal was asked to consider the case on the basis that:
a) SO was an asylum seeker, rather than a failed asylum seeker
b) SO was now 20, rather than 23 as thr AIT had found – the AIT’s decision not being conclusive (R(A) v Croydon LBC: R(M) v Lambeth LBC [2009] 1 WLR 2557 )
c) The Court was to ignore the fact that SO was receiving education and training as set out in his pathway plan.

Reluctantly, the Court did so, on the basis that this was of wider application than SO’s possibly academic case.

Issue 1. Does a local authority enjoy a power to accommodate a former relevant child under s.23C(4)(c) of the Children Act 1989?

The Court held that it does, solely on the basis that the language in s.23C(4)(c) mirrors that of s.17(6). That latter section had been held to confer a power to provide accommodation in R(W) v Lambeth LBC [2002] 2 All ER 901, even before the insertion of a specific reference to accommodation made by Adoption and Children Act 2002. So, on the basis that there was no redundancy in the subsections of s.23(4), and that the purpose of the amendment to s.17 by the Adoption and Children Act was to put that section’s purpose beyond doubt, not to change it, the same words in s.23C(4)(c) must be held to convey the same power to provide accommodation.

The High Court decision overturned on this issue.

Issue 2. Can the council look to NASS support when considering whether a former relevant child’s welfare requires that he be accommodated by it?

If SO was to be taken as an asylum seeker, there was the possibility of support under s.95 Immigration and Asylum Act 1999. Was a Local Authority entitled to take that into account in considering whether it had a duty to provide accommodation. Equally, can the Secretary of State take the possibility of local authority assistance into account in deciding on support via NASS.

Following the principles in R(Westminster City Council) v NASS [2002] 1 WLR 2956 on the amendments of s.21 National Assistance Act 1948 by Immigration and Asylum Act 1999, the Court held that:

since the powers under s.95 (and s.4) of the Immigration and Asylum Act 1999 are residual, and cannot be exercised if the asylum seeker (or failed asylum seeker) is entitled to accommodation under some other provision, a local authority is not entitled, when considering whether a former relevant child’s welfare requires that he be accommodated by it, to take into account the possibility of support from NASS.

The High Court overturned on this point also.

The case was remitted to the High Court for determination of SO’s age.

This is a welcome decision. The High Court decision had caused considerable difficulties, most particularly in the finding that there was no power to provide accommodation for the formerly looked after child to age 21 (or 24 if in full time education). Now that is clarified, and any confusion/buck passing between the Local Authority and NASS sorted out.

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.

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.

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.

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.