This is case that highlights the benchmark for seeking an injunction for accommodation on a judicial review claim
R (on the application of Bates) v Barking & Dagenham LBC (2012) QBD (Admin) 17 August 2012 [Note of extempore judgment on Lawtel]
Ms B had obtained an ex parte interim order that Barking provide temporary accommodation for her and her two children. This was the continuation hearing.
It appears that MS B had sought a Social Services assessment on being evicted from temporary accommodation provided by another local authority in Barking’s area (apparently following a fining of intentional homelessness). She was seeking accommodation and support under s.17 Children Act.
Barking’s assessment concluded that Ms B was intentionally making herself homeless, having failed to co-operate with other local authorities or accept an offer of accommodation. She hadn’t taken appropriate actions to stop becoming homeless, although she had been professionally advised. Unless Ms B changed her approach, s.20 Children Act accommodation could be provided to the children alone as a last resort. S.17 accommodation was not appropriate as Ms B was wholly reliant on the local authority, had not sought a crisis loan or support from friends and family, despite a support network being in place through her church. Ms B was the ‘author of her own misfortune’.
Ms B applied for judicial review of this decision, with an urgent ex parte application for a mandatory order for accommodation to be provided pending the judicial review. This was granted on the papers. Barking opposed the order at the continuation hearing.
Held:
The interim order was made in the absence of any grant of permission for judicial review. It would therefore be inappropriate to grant the mandatory order if the court was of the view that permission would not be given.
Permission in this case would depend on consideration of R (on the application of G) v Barnet LBC [2003] UKHL 57, [2004] 2 A.C. 208. R(G) made clear that there was no mandatory duty under s.17 and that it was lawful for the local authority to have a policy, such as the present one, aimed “at the very least to provide a strong prompt to the parent, particularly the parent considered to be intentionally homeless, to organise themself better”. The policy did not prevent an assessment taking place, which would have been unlawful, and did not prevent s.20 duties arising.
The hurdle the claimant in this case had to clear was therefore high, as Ms B would have to show irrationality or impropriety in the decision, or some misunderstanding of law. It was hard to see that any of these actually arose in this case. The grant of permission therefore appeared to be unlikely.
Before granting mandatory relief, it was necessary to consider whether there was a real prospect of success at trial, the balance of convenience between the parties and the wider public interest.
Here, there was no real prospect of success for the reasons given above. While Ms B and her children were in difficult circumstances, it was proper for Barking’s assessment to have considered Ms B’s circumstances, finances, the other options open to her and her previous refusal of an offer of accommodation. It was not appropriate to grant a mandatory order.
This case as reported here does not appear to tell us what we did not already know which was that interim injunctions will generally only be granted where the applicant has a good prospect of success at the final hearing.
I tend to find that there are three stages to the response of a Children’s Services Department to a request for assistance in obtaining accommodation for a family where a parent has been found to be intentionally homeless.
The first stage is where the social workers initially argue that their department is not able to help with housing. This leads to assessments reports which concluded that the file should be closed without assistance being provided because the children are not in need or anything other than help with housing. It is usually possible to move on from this stage by threatening to issue Judicial Review proceedings which leads to a manager or the Legal Department getting involved and withdrawing the suggestion that no help can be given.
The second stage is where the council carry out a (sometimes second) assessment which then contains findings to the effect that all of the problems facing the family are due to the failure of the parent or parents to act in a responsible manner or to engage properly with the council. Accusations of dishonesty are often made at this stage.
The third stage is for the council to provide interim accommodation and to assist in obtaining private sector accommodation for the longer term. This third stage often follows the issue of Judicial Review proceedings and the making of an interim injunction.
It would appear that Ms Bate’s case was a the second stage in the process. It sounds to me like she should have had a good prospect of success and i would like to know why the injunction was not extended. I can only assume that that the Judge was persuaded that the financial circumstances and the support network referred to meant that there was actually accommodation available to the family and the refusal of the council to provide accommodation under the Children Act was appropriate.
I maintain that where an intentionally homeless family which includes children is facing actual homelessness the council have to either house the family (albeit temporarily) together or house the child only under the Children Act 1989. A refusal to take either step should be open to challenge as irrational. Equally a decision to house a child on their own because the parent did not have the resources to house them should also be open to challenge. This is very different from simply having a policy that provides that children may be housed on their own.
I have yet to come across a case where a Court in proceedings such as this has upheld a decision to limit the assistance to housing the child on their own under Section 20. If anyone out there knows of any please post details. Meanwhile I would suggest that the lesson of this case is that injunctions should only be applied for where the family have no accommodation or money to provide accommodation and that those assisting families in this situation should be not be deterred by the “author of her own misfortune” mud which the council will throw. It may often be that a parent is open to criticism but there has to be more than bad housekeeping to justify taking children into care or leaving them to sleep on the street.
Will, it is frustrating only have the short Lawtel note to go on. But the LA was not refusing s. 20 accommodation for the children, that much is clear. What was refused was s.17 support. It seems that it was that decision under challenge, not, for example, a refusal to accommodate the mother with the children under s.20. (Though Barking seem to have been clear this would not happen).
There are also indications that this wasn’t just a usual intentionally homeless decision, refusal of an offer of accommodation is mentioned.
The Court clearly had the prospects of success test in mind. So the question is the application of R(G) v Barnet on the facts. And there isn’t enough detail in the note to assess that.
I would guess that if permission is granted, the application for a mandatory order would be renewed.
“I maintain that where an intentionally homeless family which includes children is facing actual homelessness the council have to either house the family (albeit temporarily) together or house the child only under the Children Act 1989. A refusal to take either step should be open to challenge as irrational. Equally a decision to house a child on their own because the parent did not have the resources to house them should also be open to challenge. This is very different from simply having a policy that provides that children may be housed on their own.”
I’m not sure that is consistent with what the House of Lords said in G v Barnet. Section 17 is not a duty and authorities can plead resources to avoid accommodating a family together.
Thats not to say that I don’t think we couldn’t have another go at G. It was pre the Children Act 2004 and I’d like to see what the Supreme Court have to say about ZH Tanzania and s.17. I would have thought it can’t be in a child’s best interests to put into care rather than housed with their parents.
Having said that, it doesn’t appear that ZH Tanzania was cited to the court and the reasoning behind the decision isn’t irrational.