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TG, R (on the application of) v London Borough of Lambeth (Shelter Intervening) [2011] EWCA Civ 526

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.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

14 Comments

  1. Alex

    The article 8 point here raises an interesting issue. Usually where an alleged positive duty is at stake, the question is whether it is proportionate to impose the duty. Here, however, it appears the failure to provide support was not ‘in accordance with the law’, so, strictly speaking, the question of proportionality should not arise. Had the applicant been able to show that the right to respect for his private/family life or home had been restricted at all, he presumably would have to succeed.

    Reply
    • NL

      Ooops, that should have been in there. My bad. Link added.

      Reply
  2. kjetilniki

    the interesting comparison is the result and comments in TG with the results and comments in R v Sutton ex parte S [2007]EWHC admin 1136 and []200] EWCA Civ 790
    Admittedly S predated M and was commented on in M para 39

    Reply
  3. S

    Alex – I’m not sure I follow. Art.8 was never engaged here, so there was no interferance.

    Reply
    • Alex

      My point is that had article 8 been engaged, the court would have had to have found a violation, without consideration of proportionality, because the local authority’s omission to provide assistance was not ‘in accordance with the law’.

      Reply
      • Alex

        I’ve just read the decision and I don’t think the court has grasped this point. Wilson LJ states:

        ‘The duties are not manifestations of the state’s obligation to satisfy the rights of its citizens under Article 8; or, to put the same point in another way, a member state of the Council of Europe which failed to make analogous provisions would not thereby infringe the rights of its citizens thereunder.’

        This utterly ignores the fact that any interference with art 8 that is not in accordance with the law amounts to a violation of the Convention, even if it would be perfectly proportionate for the law of the member state to validate such an interference.

        Reply
        • NL

          Alex, I’m with S. Where was the Art 8 engagement? Without that, whatever you are putting forward is deeply hypothetical at best…

          If there was breach of art 8 and the LA had acted unlawfully in that breach, then of course proportionality wouldn’t be an issue, but that just has no relevance to the issue of art 8 damages here.

        • Alex

          I don’t disagree, the court was perfectly entitled to hold that art.8 was not engaged. But some of its reasoning (e.g. what I quote above) seems to be based on whether it would be proportionate to place such a duty on the state (irrelevant where the LA is acting unlawfully), rather than on the impact the omission to provide assistance had on the applicant’s private life (the engagement issue). I don’t think the decision’s wrong, just a bit sloppy.

          I must admit I am sometimes prone to being deeply hypothetical…

        • NL

          Alex, I think your use of ‘proportionality’ is confusing me. As I see it the proposition is as follows:

          1. There is no positive duty to provide under the Convention Art 8 (although of course there is under statute)…
          2. Save where a failure to provide under statute creates (or arguably continues) a situation which amounts to a breach of art 8 – e.g. Bernard, above.
          3. Such a failure to provide will, pretty much inevitably, be unlawful, so unjustifiable.

          I genuinely don’t see where proportionality (or the woolliness in the judgment) comes in.

  4. Stephen O'Neill

    Article 8 is not in itself a positive obligation. Article 8 is largely concerned with preventing the state from interfering with people’s rights. They are negative obligations in that they require the State to refrain from taking certain action. For example, not to evict a person from their home unless there is a reasonable relationship between a particular objective to be achieved and the means used to achieve that objective. However, there may be circumstances where State is under a positive obligation – a duty to do something in order to protect or promote ones rights, but that didn’t arise in this case.

    In deciding whether such a positive obligation exists, one must consider the balance that has to be struck between the general community interest and the interests of the individual. Because a positive obligation will require the State to take active measures or steps, it will always be much harder to argue that the State is under a positive obligation than under a negative one. In Bernard the court held that the Council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity. A failure to do so would result in a breach of Article 3. So the State had a duty to intervene. In another case, X and Y v Netherlands (1985) the ECHR held that the Netherlands should have taken steps to protect the applicants from sexual assault by their parents, as this assault was a grave breach of their right to respect for their private life.

    The problem in this case was identifying what the likely impact would have been. The situation might have been different if the impact on TG was obvious. The Court would essentially be asked to identify a uniform conception of community care in the domestic law of the various Member States. National authorities enjoy a wide margin of appreciation in matters of the provision of support to the vulnerable, particularly in an area such as the present which touches on the interpretation of national legislation, rather than Community law. The Court’s decision in Bernard, was not based on the state’s sovereignty, but instead, on the observed consensus within Europe that degrading an inhuman treatment is a serious violation of a family’s right to have a meaningful private and family life.

    If the UK decided that all homeless 16 and 17 year old’s should be taken into care, or locked up in some secure unit or other -whether they liked the idea or not, proportionality would be relevant, but not otherwise.

    Reply
    • NL

      Stephen, I think that is pretty much what I said (only considerably more explained). A couple of points though:

      Bernard was an Article 8 case. The Court found no breach of Article 3 (though only just). So the breach (and damages) was not on the basis of inhuman and degrading treatment.

      Secondly, at least in my view of Bernard, I think it would be difficult to extract a positive Art 8 duty to assist independently of the finding on the Authority’s failure to fulfil the statutory duty under s.21 NAA from that case. Perhaps not impossible, but I wouldn’t say that it was straightforward.

      Not sure about the locking up the homeless example – yes, proportionality would be an issue then, but it doesn’t map onto HR damages for failure to provide a positive statutory duty at all.

      Reply
  5. Alex

    At the risk of causing more confusion/boredom, I’m going to try and explain my point one more time. Where an omission to provide something or other is lawful in domestic law, establishing a violation of a positive obligation under art 8 involves two steps:

    1. Did the omission impact upon the applicant’s private/family life, home or correspondence?

    2. Bearing in mind the balance between individual rights and the general interest, and the margin of appreciation afforded to member states, is the omission justified?

    I think Stephen’s post describes very well how the second step operates. This is what I was referring to as ‘proportionality’ above, and it is the basis on which Marzari (cited by Wilson LJ in TG) was decided – the court did not say that there was no positive oblligation to provide support for Mr Marzari, it said the legislation under which the Italian authorities acted was adequate to comply with the positive obligation.

    However, where the omission is not in accordance with domestic law, it cannot be justified as ‘necessary in a democratic society’ (i.e. proportionate), and step 2 falls away. The question simply becomes whether the omission impacted upon the applicant’s private/family life, home or correspondence. Had this been the question in Marzari, I fancy that the applicant would have won. So Wilson LJ’s use of Marzari is in fact a false analogy. (Though I agree that on the facts of TG it is difficult to say that the LA’s omission had a significant impact on the applicant’s private/family life.)

    The Court of Appeal’s approach in this case is essentially to say ‘no positive duty, therefore art 8 not engaged’. This is to put the cart before the horse – whether or not there is a positive duty ought to be the conclusion, not the starting-point, of the analysis. Though I agree that cases in which states are held to breach positive duties under art 8 are (and ought to be) rare, the methodology of determining whether there has been a violation is in principle no different to the approach in the far more common negative duty cases. As the Grand Chamber said in Hatton v UK: ‘Whether the case is analysed in terms of a positive duty on the State… or in terms of an interference by a public authority… the applicable principles are broadly similar’.

    Reply
    • NL

      Alex, I think the difficulty I had, at least, was trying to see where you were going with this in relation to this case. Here there was a clear unlawful failure.

      But in any event, I’m still not sure that I agree with your analysis. Marzari arguably isn’t a proportionality case, as you suggest, because it was not about whether the ‘violation’ or omission was justified. As you say, the Italian legislation was found to be adequate to comply with a putative ‘positive’ art 8 duty. It wasn’t a ‘proportionately justified failure’, as there was no failure.

      Your 2 step process in establishing a violation is, of course, entirely right, but a positive duty is surely a precedent condition, not the conclusion. If there is no positive duty, there is no interference with Art 8 rights to then be considered under proportionality.

      The Court of Appeal here don’t say that a positive duty would be impossible. They say it would probably be rare.

      And I still suspect that proportionality wouldn’t crop up in any such case, as a failure to fulfill a positive duty would, pretty much inevitably, involve an unlawful failure to carry out statutory duties. (Unless, of course, the Coalition takes us back to the days of Govt removing any support or ability to support themselves from asylum seekers. That is possible…).

      Reply

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