AT & Ors v London Borough Of Islington [2013] EWCA Civ 1505

We are a bit late with this one, but while we are on the interrelation of duties to children and housing duties, this was an an application for permission to appeal a judicial review decision on the interrelation of s.17 Children Act 1989, s.11 Children Act 2004 and the Housing Act 1996 parts 6 and 7.

AT and her husband have two sons, aged 5 and 2, both of whom have disabilities. One son has serious autistic spectrum disorder and the other Down’s syndrome. They live in a one bedroom flat on the second floor of a block with no lift. The flat is damp and suffers from a mouse infestation.

Both children are recognised to be ‘Children in need’ under s.17 by Islington.

What was at issue (amongst other matters initially raised in the JR claim) was the adequacy of Islington’s assessment of need, as it related to housing need. The relevant passage of the assessment read:

“A key contributing fact to the family’s difficulty and stressful circumstances is the current housing, which is severely overcrowded, with inappropriate conditions of damp and mice infestation and with significant safety concerns. With 446 points they are entitled to rehousing and can bid for a suitable property.”

AT’s argument was that the assessment failed to identify the specific time-frame for rehousing the family. At first instance there had been other issues, such as failure to recognise the difficulty in dealing with stairs.

The Admin Court had found the criticisms of the assessment to be unreasonable and unrealistic, commenting:

“At the heart of the criticism of the latest assessments is the complaint, almost amounting to anger, that the defendant has failed to provide the family with suitable permanent accommodation. That is not a result which can be guaranteed by a proper discharge of the duties I am considering at this stage.”

The argument on the need for a specific time-frame for rehousing was raised in the permission hearing. AT argued that this was necessary for the assessment to fulfil the requirements of statutory guidance:

“The relevant statutory guidance required that following assessment of the needs of children ‘in need’ there should be-
An analysis of the needs of the child;
Identification of whether and, if so, where intervention will be required to secure the wellbeing of the child;
A realistic plan of action (including services to be provided) detailing who has responsibility for action, a timetable and process for review.”

This amounted to a requirement for ‘a detailed operational plan’.

Lord Justice McCombe did not accept this. Quoting Munby J (as he was) in R(B) v Lambeth LBC [2006] EWHC 639 (Admin)

“1. The primary decision-maker is the local authority and not the court. The court’s function is one of review, not to come to its own assessment of what is in the child’s best interests.
2. It is for the local authority not the court to make the initial and core assessments of the children.
3. The Administrative Court exists to adjudicate upon specific challenges to discrete decisions. It does not exist to monitor and regulate the performance of public authorities.
4. As counsel for the local authority put it, core assessment should not be subjected to a line by line comparison with the Framework. Core assessments are intended to assist local authorities to discharge their duties to children. The purpose of the process is not to enable claimants’ lawyers to carry out such a comparison in order to find some trivial difference with a view to fashioning that trivial difference into a ground for judicial review.”

Further, on the issue of whether the assessment contained sufficient detail on housing need to amount to a suitable plan, it clearly did.

The assessor could not accurately assess that which it was not within his power to assess. He or she was not able to predict with accuracy what could be achieved or what might be achieved in housing terms. The housing problem was clearly identified. The assessment identified the need for rehousing and the authority’s need to liaise with the housing officials to secure what was required. However, the Children’s Service officers could not produce by magic housing which was not in their gift. That depended upon the housing duties of the Council.

Clearly there needed to be continuing action, but “the failure to achieve suitable permanent accommodation was not a result which could be guaranteed by discharge of the duties being considered by the court at this stage of the judicial review.”

Permission to appeal refused.