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

Case No C1/2013/0451[2013] EWCA Civ 1505
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR PHILIP MOTT QC)
Venue Royal Courts of JusticeDate Friday, 14 June 2013
Strand
London WC2A 2LL
Before
LORD JUSTICE McCOMBE
Between
AT & OTHERSApplicant--and--
Between
MAYOR AND BURGESSES, LONDON BOROUGH OF ISLINGTONRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Ian Wise QC (instructed by Hopkin Murray Beskine) appeared for Applicants for The Respondent did not appear and was not represented
JUDGMENTLord Justice McCombe:
[1]This is a renewed application for permission to appeal from the order (yet to be perfected) of 1 February 2013 of Mr Philip Mott QC, sitting as a Deputy Judge of the High Court, whereby the judge dismissed part of the applicant's claim for judicial review against the respondent, the London Borough of Islington. Permission to appeal was refused on the papers by Rafferty LJ on 24 April.[2]The applicant's judicial review claim was a wide-ranging one and challenged the respondent's alleged failures properly to assess the needs of two children as "children in need" pursuant to section 17 of the Children Act 1989 and section 11 of the Children Act 2004. The claim also challenged alleged failures properly to determine the applicant's housing applications under Parts 6 and 7 of the Housing Act 1996 and (as stated in the claim form) supposedly in breach of section 184 of that Act. As set out in the Deputy Judge's judgment, the applicant sought a number of declarations and mandatory orders, which they contended were necessary to enforce the respondent's compliance with their duties under the Children Act and the Housing Act.[3]Beneath the legalities of the matter are the tragic facts of the life circumstances of a family with two children with certain obvious disabilities. The claimant, AT, and her husband have two sons aged five and two respectively. The five-year-old has an autistic spectrum disorder of some seriousness, and the two-year-old has Down's syndrome. They have lived for some time in a one-bedroomed flat on the second floor of a block with no lift. The flat is damp and is described by the judge as suffering from mice infestation. One need say little more to comprehend the difficulties from which the family suffer from this congeries of very unfortunate circumstances.[4]The children are recognised to be “children in need” within the meaning of section 17 of the 1989 Act.[5]The claimants contend that the respondent, who had the duties under the two Acts, had failed both historically and continuingly to discharge their duties under the Acts. On 18 December 2012, because of the perceived urgency of the matter, the case was considered on the papers by Nicola Davies J, who directed a rolled-up hearing of the various applications for permission and, if granted, for judicial review, setting a date of 25 January 2013 as the latest hearing date. Under consequent directions of Edwards-Stuart J of 9 January 2013, further directions were given and the expedited hearing was directed to come on on 24 January this year. It was duly heard by Mr Mott QC on that date, when it was agreed that the Housing Act issues raised by the claimants and the historic complaints under the Children Act could not properly be determined that day, as the judge records, and the deputy judge was therefore invited to deal with the claimant's complaint that the respondent was in continuing breach of its duties under the Children Act.[6]At paragraph 18 of his judgment, which he reserved and delivered on 1 February 2013, the Deputy Judge indicated that he had only been invited to consider the respondent's most recent assessment and determine whether it met the requirements of section 17 of the 1989 Act. This was called “the general assessment”.[7]The judge summarised the contents of the relevant assessment in paragraph 36 of the judgment, and Mr Wise has this morning taken me again to the particular passages which he submits are deficient in the assessment document, but perhaps the particular feature of the assessment which is the crux of the present matter appeared at sub-paragraph (xx):
"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."
[8]At the hearing, as the judge identified, counsel for the claimant criticised the absence from the assessment of the family's difficulties in dealing with stairs, as he set out in paragraph 39 of the judgment, and the absence of any assessment of the time-frame for rehousing. It was argued that the planned steps for rehousing should have been specifically identified. The judge found the criticisms to be unreasonable and unrealistic and dealt with each of the specific complaints in turn. Perhaps his core finding can be found in paragraph 41 of the judgment, where he said this:
"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."
[9]The short ground of appeal can be seen, and only to a degree amplified, on page 9 of the bundle before me, where it said this:
"The learned judge erred in finding the Defendant had completed a lawful assessment of the second and third claimants' housing-related and other needs and produced a plan to meet those needs as required by ... [the sections are quoted]."
[10]That ground has been expanded in the skeleton argument subsequently filed, and in short it said again that the assessment under the Children Act failed to identify the specific time-frame for rehousing the family and the judge was wrong not to say that this was a failure to discharge the Children Act. It was argued that a realistic plan should have been provided.[11]In a summarising note produced for the court yesterday, Mr Wise summarises the requirements that were failed to be met by the assessment produced in paragraph 2 of the note (page 120 of the new bundle) he submits:
"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."
Mr Wise submitted to me this morning that, distilling the cases to which the judge, with respect to him, referred, what is required is "a detailed operational plan".[12]The substance of that, in my judgment, can be distilled from the four paragraphs of Munby J's decision (as he then was) in the case of 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."
[13]I have considered the arguments raised both on paper and by Mr Wise this morning, which is quite a short point: did the assessment in relation to the housing needs condescend to sufficient detail to amount to a suitable plan and assessment pursuant to the Act? With respect, I do not agree with Mr Wise's submission. The assessment, as summarised by the judge, was clearly adequate to meet the duties under the 1989 and 2004 Act. 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. As the judge held in a judgment, in my judgment, impeccably reviewing and applying the relevant law, 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.[14]In my judgment, the deputy judge's decision was not arguably erroneous for the reasons that are essentially the same as those identified by Rafferty LJ. In my judgment, the Children Act assessment met the needs of the case. Clearly there needs to be continuing action, and it is apparent from later events, though not relevant to the judge's decision, that continuing consideration of the problem is being carried out.[15]I do not consider that this proposed appeal has real prospects of success, and accordingly the application is refused.

Order

Application refused