THE QUEEN On the application of J v LONDON BOROUGH OF ENFIELD - and - [2002] EWHC 432 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINSTRATIVE COURT

AT SWANSEA CROWN COURT

[2002] EWHC 432 (Admin)

Case No Case No: 5054/2001

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

THE QUEEN On the application of JClaimant

LONDON BOROUGH OF ENFIELD - and -Defendant

SECRETARY OF STATE FOR HEALTHIntervener

Before

THE HONOURABLE MR. JUSTICE ELIAS

Ms. Kate Markus (instructed by Bindman & Partners) for the Claimant

Mr. Bryan McGuire (instructed by London Borough of Enfield) for the Defendant

Mr. Philip Sales for Secretary of State for Health

Date 4 March 2002

[1]Mr. Justice Elias: This application for judicial review is concerned with two decisions of the defendant authority made pursuant to section 21 of the National Assistance Act 1948 (“NAA”) and section 17 of the Children’s Act 1989 respectively. The claimant maintains that she should be provided with accommodation under the former statutory provision; alternatively that she and her two year-old daughter should be provided with such financial assistance as would enable them to secure accommodation under the latter provision. She further maintains that the failure to help her to obtain accommodation, whether directly or through financial assistance, involves a breach by the authority of her rights under

Article 8 of the European Convention on Human Rights

and Fundamental Freedoms, which confers on everyone a right to respect for the home and family life. Accordingly she submits that if necessary the statutory provisions should be read so as to give effect to those rights, as required by section 3 of the Human Rights Act 1998 (HRA). If they cannot be so construed, then it is suggested that the court should make a declaration of incompatibility pursuant to section 4 of the 1998 Act.

[2]The local authority contends that it has no power in the circumstances to exercise either power in her favour. It accepts, however, that the failure to provide any assistance does infringe the claimant’s Article 8 rights. However, it contends that it is not possible to construe the legislation in accordance with those rights even given the wide interpretative power conferred by section 3 of the HRA. There is a gap in the legislation which prevents the authority from lawfully giving effect to the claimant’s rights. The authority suggests that the appropriate relief might be to make a declaration of incompatibility pursuant to section 4 of the HRA.

[3]In view of this stance, it seemed to me at an early stage in the hearing that there was a realistic possibility that I might have to consider making such a declaration of incompatibility. Accordingly, I adjourned the proceedings in order to permit the Secretary of State to be joined as a party pursuant to RSC Part 19.4A. The Secretary of State chose to take up that opportunity and I have had helpful assistance from Mr. Sales. He has widened the debate by contending that the authority has a power under section 2 of the Local Government Act 2000 (“LGA”) to provide financial assistance to assist the claimant to secure accommodation for herself and her daughter. The significance of this submission, if correct, is that even if the authority’s submissions on the scope of section 21 of the NAA and section 17 of the Children Act are right, there is still no gap in the legislation preventing it from giving effect to the claimant’s human rights. Accordingly, submits Mr.. Sales, neither sections 3 nor 4 of the HRA need to be invoked at all.

[4]The claimant came to the United Kingdom from Ghana in February 1995. She has over-stayed the period permitted on her visa for her to remain in the United Kingdom. She made an application to the Home Office for leave to remain in July 2000. That application has not yet been determined Prior to that application being made, her daughter F was born on the 26 February 2000. During her ante-natal care, the claimant was diagnosed with HIV. Her daughter has been regularly screened for the virus and has fortunately not yet tested positive; it is thought unlikely that she will now be affected by it.

[5]Virtually since coming to the United Kingdom in 1995, the claimant has been living in premises in Enfield in a 3-bedroom house owned by a Ms. Anim. Initially the claimant had a small income and was able to pay some rent and support herself, but after the birth of her daughter the claimant was ill and in hospital for some three months and was not thereafter able to make any contribution towards household expenses. She was, however, allowed to stay, her accommodation and food being provided in return for the claimant cooking and cleaning the premises. In addition, she has been receiving some financial and other support from various charities, including in particular assistance from the church which she attends. There is some dispute as to whether she receives any money from her daughter’s father; I return to that issue later.

[6]Since last July 2001, Ms Anim has not lived in the premises. She has rented out the property to tenants. At about the same time Ms Anim asked the claimant to leave the house but has generously not as yet forced the issue because of the claimant’s ill health. However, there are real difficulties resulting from the claimant remaining there. In particular, when Ms Anim moved out, her son moved into the house and he sleeps in the living room with the claimant and her daughter. The claimant says that there is nowhere she can go.

[7]The claimant has been seeking the assistance of the local authority in obtaining accommodation since the early summer of 2001. I set out in some detail below the chronology of events. Initially judicial review proceedings were initiated on the assumption that the authority was refusing to carry out any assessment of needs either for the claimant under section 47 of the National Health Service and Community Care Act 1990 or for her daughter (whose needs assessment is made under both that provision and paragraph 3 of Schedule 2 to the Children Act). Subsequently it became clear that these assessments had in fact been carried out but for some reason the results were not received by the claimant, although the authority says that they were sent to her. The defendant assessed the claimant as being at low risk and requiring minimal care and support, and the daughter was found not to require any immediate assistance. Following this information, further medical evidence was submitted by the claimant, but this has not caused the authority to change its stance. In the light of these developments, the judicial review application has been amended to challenge both the initial assessments and the decision to maintain them in the light of the medical evidence.

[8]Permission to take judicial review proceedings was granted by Newman J. on the 21 December 2001. He also ordered interim relief which required the defendant authority, if necessary, to provide accommodation for the claimant and her daughter. The reason for this was that it was expected at that time that Ms Anim would be returning in time for Christmas and was requiring the claimant and her daughter to leave the premises. In fact Ms Anim has been in Ghana and for certain reasons her return had been delayed; indeed, she still had not returned to this country by the date of the judicial review hearing on the 11 February 2002. Accordingly it has not been necessary for the authority to provide the accommodation, though they have very properly and fairly agreed that the interim order should stay in place until the outcome of the determination of this case.

[9]In order to understand why the claimant is seeking to rely upon these particular statutory provisions, it is necessary to understand certain aspects of her position. First, because of her immigration status as an overstayer she is not entitled to any state benefits save for child benefit in respect of her daughter. This means that even if she were able to find accommodation, she would not be in a position to maintain the rent through housing benefit and would have to raise money in some other way. However, she is only seeking financial assistance to enable her to secure accommodation. More specifically, she is asking for the deposit and the first month’s rent on appropriate premises and assistance with the rent thereafter. She would apparently be content with this if no accommodation could be provided. In normal circumstances she would be eligible to claim that she should be housed by the local housing authority pursuant to Part VII of the Housing Act 1996 which deals with homeless applications. She would be entitled to priority need by virtue of the obligation to look after her young daughter. However, she is expressly excluded from the scope of those provisions by section 185 of the Act. This renders ineligible for the benefits conferred by Part VII persons from abroad who are not eligible for housing assistance. Those subject to immigration control are not so eligible unless they have been expressly made eligible by statutory regulations. No regulations have been made for overstayers like the claimant.

[10]Were the claimant an asylum seeker, she would be able to apply for support, including accommodation, to the National Asylum Support Service (NASS) under the Immigration and Asylum Act 1999 (“IAA”) section 95. Moreover, section 94 provides that the concept of an asylum seeker under that Act includes someone who is claiming the right to remain not only on the grounds that the Geneva Convention is applicable, but also on the grounds that he is claiming that to return him to the home country would infringe his human rights. I mention this because I am informed that it is the intention of the claimant to seek to remain in the United Kingdom on the grounds that it would be a breach of Article 3 to return her to Ghana because they do not have the medical facilities to deal with her AIDS disease. I am told that the only reason this claim has not already been made is that the claimant has switched solicitors and her original solicitors have failed, despite repeated requests, to give her new solicitors the relevant file. (For reasons I touch on below, I should add that even if she had made this claim, she would in any event say that her claim for accommodation should be met under section 21 of the NAA and not the 1999 IAA)

[11]Because these various provisions are for one reason or another inapplicable, it has been necessary for the claimant to seek to bring herself within some other statutory provision. Hence her reliance on section 21 of the NAA and (through her daughter) section 17 of the Children Act. The defendant authority believes that neither provision gives it the power in the circumstances of this case to provide the assistance sought. They plainly have the power take the child into care under section 20 of the Children Act, but that will of course involve mother and child being separated. As I have said, the Council accepts that in the particular circumstances of this case that would involve a breach of the Article 8 rights of both mother and child. However, it submits that it is not possible properly to construe either statutory provision in a manner compatible with Article 8. It also disputes Mr.. Sales’ contention that section 2 of the LGA 2000 confers any statutory power upon it to provide the financial support sought by the claimant. The legal framework

[12]In order to consider the strength of these contending arguments, it is necessary to set out the relevant statutory provisions.

[13]The starting point is the duty of the local authority to carry out an assessment of needs. Section 47(1) of the National Health Service and Community Care Act 1990 provides:

“..where it appears to a local authority that any person from whom they may provide or arrange for the provision of community care services may be in need of such services, the authority – (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of the assessment, shall then decide whether his needs call for the provision by them of any such services.”

[14]The concept of Community Care Services is found in section 46(3) of the Act and includes services as provided under Part 3 of the National Assistance Act 1948. That in turn includes section 21, one of the provisions in issue in this case. That section is as follows:

“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing- (a) residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them;” “(2) In making any such arrangements, a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions to such persons as are mentioned in the last foregoing subsection.” “(5) Reference in this Act to accommodation provided under this part thereof shall be construed as references to accommodation provided in accordance with this and the five next following sections, and as including references to board and other services, amenities and requisites provided in connection with the accommodation except where in the opinion of the authority managing the premises their provisions is unnecessary.”

[15]A relevant direction has been issued pursuant to section 21(1) by the Department of Health Circular No LAC (93) 10 appendix 1. This obliges local authorities to make arrangements in terms of the subsection for, amongst others, those ordinarily resident in their area. It is accepted that the claimant falls into that category. However, by section 116 of the Immigration and Asylum Act 1999, a new subsection 1A was inserted into section 21. The immediate cause of this provision was a decision of the Court of Appeal in which it held that destitute asylum seekers could, at least in certain circumstances, fall under the terms of section 21: see R v Westminster City Council ex p. M,P,A and X . [1997] Q.B.1 CCLR 86 (1997) (“the M case”). The precise effect of the amendment is a matter of some dispute, but it is plainly to deny the benefit of that section at least to some of those who had been thought in the M case to be eligible for the benefits. The new subsection is as follows:

“A person to whom section 115 of the Immigration and Asylum Act 1999 (exclusion from benefits) applies may not be provided with residential accommodation under subsection (1)(a) if his need for care and attention has arisen solely- (a) because he is destitute; or (b) because of the physical effects, or anticipated physical effects, of his being destitute.”

The definition of destitution is given by Section 95(3) of the 1999 Act, which provides as follows:

“a person is destitute if- (a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or (b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.”

[16]It is common ground that the claimant, as an overstayer, is a person to whom section 115 of the 1999 Act applies. It follows that the claimant is somebody to whom section 21(1A) is capable of taking effect. Whether it does so depends upon whether the conditions specified in that section apply in the particular circumstances. This in turn depends upon whether the applicant is someone who is in need of care and attention solely for the reasons spelt out in the section. If she is not, then subsection 1A does not operate so as to take her outside the scope of section 21(1).

[17]The second provision relied upon by the claimant is section 17 of the Children Act 1989. The relevant parts of that section are as follows:

“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)- (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. (2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2. (3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare. (5) Every local authority – (a) shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section; and (b) may make such arrangements as the see fit for any person to act on their behalf in the provision of such service. (6) The services provided by a local authority in the exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash. (10) For the purpose 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. (11) in this Part – “development” means physical, intellectual, emotional, social or behavioural development; and “health” means physical or mental health.”

[18]It is not disputed that the child is a child in need. Moreover, until the decision of the Court of Appeal in R (on the application of A) v Lambeth LBC

[2001] EWCA Civ 1624

it was assumed that the local authority could provide accommodation for a child under this provision, and house her family at the same time under section 17(3). Indeed, I am informed that intentionally homeless families were regularly housed under this provision, thereby both avoiding a break-up of the family and saving the authority the cost of taking children into care. The claimant accepts that that is no longer possible, at least absent a claim that her human rights have been adversely affected. However she submits that the decision does not prevent the authority from providing financial assistance to enable her to secure accommodation for them both on the grounds that it promotes the welfare of the child. Moreover, she submits that even if that is not a proper construction of section 17 absent human rights considerations, the section ought to be construed in that way in this case or otherwise her Article 8 rights would be infringed. I shall deal with the two claims in turn. The claim based on section 21 of the NAA.

[19]The first question is whether the applicant is entitled to accommodation under section 21 of the NAA. As the arguments developed, it seemed to me that the legal principles relating to the exercise of this power are not in dispute (although counsel for the authority and the claimant expressed them in slightly different ways). I will briefly summarise what I understand to be the relevant principles without examining in any detail the relevant authorities from which they are derived.(1) Section 21 enables a local authority to make arrangements for the provision of residential accommodation, but only to those in need of care and attention by reason of age, illness, disability or some other circumstance falling within the section. Accordingly, it is not lawful for an authority to provide accommodation under this section simply because someone is homeless; an able-bodied person who is homeless is in need of accommodation but he is not in need of care and attention. There must be a prior need for care and attention which is met by the provision of accommodation. That provision is not the end or purpose of the authority’s action; rather it is the means whereby care and attention can be provided or facilitated.

(2) Section 21 involves the provision of what is termed “residential accommodation”. In practice this will generally be accommodation which is in some way particularly suited to, or made available specifically for the benefit of, those in need, such as sheltered housing, or a residential or nursing home where board and services are provided. However, it also appears to extend to providing what might be termed “usual” housing accommodation. By this I mean that in an appropriate case it can justify the grant of accommodation which has no particular features and no consequential services which make it particularly suited to the old, ill or disabled, and which would in principle be the kind of accommodation made available by the housing authority to those whose only need was for housing: see e.g. the decision of Scott-Baker J. in R v Bristol County Council ex.p.Penfold

(1998) 1 CCLR 315

. Although Stanley Burnton J. expressed some doubts about this construction in R (on the application of Abdul Wahid) v Tower Hamlets LBC

[2001] EWHC Admin 641

, he felt constrained to accept it because of Penfold and other decisions. It has been conceded before me that in principle the authority can use the section for that purpose, and in my view the M case supports that analysis. In any event, I make this decision on the premise that the concession correctly states the law. If it does not, then it is accepted that section 21 cannot assist the claimant.

(3) In determining whether that need exists, the authority should not simply focus on the question whether there is an immediate need, but should also decide what provision is required to meet a need which is imminent, albeit not yet established: see the Penfold case and the decision of the Court of Appeal in the M case. It is not necessary, in other words, to wait until the care and attention is actually required before providing assistance. In the M case, (which in fact concerned an asylum seeker) Lord Woolf M.R. expressed the position as follows (

(1997) 1 CCLR 86

at 95) “…the authorities can anticipate the deterioration which would otherwise take place in the asylum seeker’s condition by providing assistance under the section. They do not need to wait until the health of the asylum seeker has been damaged.” Although the effect of that decision has since been altered by legislation, those words remain relevant to the general application of the section.

(4) Section 21(1A) excludes from the scope of section 21 only those who will require care and attention by virtue of the fact that they are homeless, or (put broadly) because of the physical consequences of being homeless. The section does not exclude those who have an additional need for accommodation because they require care and attention because they are suffering from illness, disability or old age: see R v London Borough of Wandsworth ex p.O [2000]1 WLR 2539. (5). Section 21 is very much a longstop provision, as the Wandsworth case makes plain. It only applies where care and attention is not otherwise available. However, the Court of Appeal has held that where the requisite assistance otherwise available is from the NASS, this does not remove the obligation for authorities to continue to provide support under section 21 for destitute asylum seekers who are also in need of community care services: R (Westminster City Council ) v Secretary of State for the Home Department

[2001] EWCA Civ 512 (2001)

33 HLR 938. It is for this reason that the claimant submits that she would be entitled to accommodation pursuant to this provision even if she had already made an application to remain on human rights grounds.

[20]The fourth principle requires further elucidation. In Wandsworth Simon Brown LJ, with whose judgment Hale and Kay L.JJ.

(a) and his conclusions in the following terms:

“The local authorities contend that the approach should be this. First ask if the applicant has (a) somewhere to live (“adequate accommodation”) and (b) means of support (the means to “meet his other essential living needs”): see section 95(3) of the Act of 1999. Assuming that the answer is “No” to each of those questions, ask next whether, but for those answers, he would need section 21 assistance. If not, he does not qualify. In other words, it is only if an applicant would still need assistance even without being destitute that he is entitled to it. The applicants contend for an altogether different approach. They submit that if an applicant’s need of care and attention is to any material extent made more acute by some circumstance other than mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, old age, illness and disability, all of which are expressly mentioned in section 21 itself. If, for example, an immigrant as well as being destitute is old, ill or disabled, he is likely to be yet more vulnerable and less able to survive than if he were merely destitute. Given that both constructions are tenable, I have not the least hesitation in preferring the latter. The word “solely” in the new section is a strong one and its purpose there seems to me evident. Assistance under the Act of 1948 is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars in the streets, then let them at least not be the old, ill or disabled.”

[21]On the former analysis, rejected by the Court, there would be no entitlement to any support if what was required was merely ordinary accommodation, irrespective of the reason why the accommodation was required. On the latter view, which the Court accepted, there could be such an entitlement even if only ordinary accommodation were needed provided the need for that accommodation did not simply result from the fact of being homeless but also as a consequence of some other circumstance falling within the terms of the section. As

Lady Justice Hale put it in her judgment:

“Parliament ….chose to limit that denial [of services] to those whose need arose “solely” from destitution. This must leave it open to those whose need arises also from other causes to seek such assistance.”

(p.2557).

[22]I observe that it is the need that is made more acute as a result of destitution for those who fall within the scope of section 21; it is not the illness itself which has to be made more acute.

[23]The difference between those two approaches considered in the Wandsworth case is highlighted in this case. On the approach rejected by their Lordships, the claimant would be excluded by subsection 1A. But for the lack of accommodation (or more accurately the anticipated lack), she would not need assistance. That is the only assistance she requires. However, she claims that the reason she needs the accommodation will be not merely to counter the fact of destitution, but also the fact of her illness which means that she is in imminent need of care and attention.

[24]In this particular case the illness derives from the fact that the claimant is HIV positive. But as the claimant properly accepts, the implications of this argument are that anyone with an illness that makes the need for the accommodation important for reasons over and above the mere fact of destitution, such as someone with a heart condition, or asthma, or perhaps an arthritic condition, would also be entitled to the benefit of section 21.

[25]The question as far as this aspect of the case is concerned is whether, on the facts, there has been a failure by the authority properly to exercise its powers under section 21. More specifically, the issue in dispute is this: could the authority properly conclude that there was not any threat to health which was sufficiently imminent to require accommodation to be provided? If it could, then section 21(1)(A) would exclude the claimant from the scope of section 21(1). Logically, such a decision could be reached either on the grounds that the risk of homelessness itself was not sufficiently imminent, or on the grounds that the adverse consequences to health consequent upon such homelessness were not established. However, the Council did not find against the claimant on the first ground; as Mr. McGuire made clear to the court, it accepts that the loss of accommodation is imminent.

[26]I turn then to consider the way in which the authority approached its tasks under section 21 when determining whether, given the imminent loss of accommodation, there was an imminent need for care and attention. That was a decision for the authority and Ms. Markus accepts that it can only successfully be challenged on Wednesbury criteria. Assessing that challenge requires a fuller analysis of the events as they unfolded chronologically. The assessments.

[27]An initial outline assessment under section 47 of the NHSCCA was made in June, and a fuller comprehensive assessment in August. In June a decision was reached by the Children and Families division of the Social Services Department that the daughter was being well cared for and that it was not at this stage necessary to provide any services. Consideration had in fact been given to providing the airfare for J and her daughter back to Ghana, but it was decided that the services available for treating HIV were inadequate. Similarly an initial assessment on J found that she was well and had food and shelter provided by her friend. Although this was temporary, the view was taken that there was no imminent danger of homelessness. The authority was told that J occasionally received money from the daughter’s father. Also at that time J was reluctant to permit the authority to approach her GP. She said that she was well and not on medication.

[28]Following this assessment, a comprehensive assessment was requested by the claimant’s solicitors. This was carried out by Ms. Adonis a social worker in the authority’s Social Services Department. In essence her conclusions did not alter the initial outline assessment. The assessment form itself contains a number of observations about the claimant’s condition. They can broadly be summarised as making the following findings: J was fit and well and could support herself and her daughter. She needed no special requirements and was not at that time on medication; she was able to live safely, to cook and look after herself, and to travel without difficulty. She is alleged to have said that she only wanted help with being rehoused. At that stage however, she was saying that child benefit was her only source of income and that she received no assistance from the father of her child. However, in a witness statement before me, Ms. Adonis said that the claimant was representing that she just wanted housing and not financial assistance. In the light of these various considerations, the conclusion was that she needed only occasional or minimal level of support.

[29]In October, following this assessment, the claimant provided the Social Services Department with a medical report. This was followed up by a report from the claimant’s consultant, Dr. Wood. His report is very important in the context of this aspect of the case. He confirmed that the claimant regularly attends the HIV unit and has a very weakened immune system leaving her very vulnerable to potential complications of HIV/AIDS. He noted that she would need to restart medication in a few months. The key element of his report is as follows:

“Clearly when she does need to restart medication, which is likely to be in the next few months, it is very important that she has proper stable accommodation to provide a solid base from which to organise her medication. The main reason whey HIV medication does not work is that people do not take them regularly and living arrangements are an extremely important determinate of this. I understand that Ms A is homeless and, from what I understand, is in imminent danger of being turned out onto the streets. I am extremely concerned that this situation has arise and it would clearly be a complete disaster where Ms A and her young child F (dob 26.2.00) were to be left on the streets with no access to food of shelter. This would clearly have a major impact on her physical and psychological health and I am very concerned that physical stresses could make her immune system deteriorate more quickly making her more increasingly vulnerable to potential complications of HIV infection. There is also evidence that stress is a serious determinate of weakening of the immune system and I am very concerned that homelessness would seriously impact upon this woman’s mental and physical health. The affects of this deterioration could make themselves evident in days or weeks and continue homelessness or uncertainty in her housing situation is likely to delay her recommencing anti-HIV therapy for longer. In summary, it is remarkable that this HIV positive woman with a young child should find herself at risk of being turned onto the streets. Homelessness per se is very detrimental to health even in otherwise healthy people but in a young woman with HIV it is particularly damaging both to her current health and future health. I would be concerned that she would be a very serious risk of deterioration of her health perhaps developing serious of life threatening complications as a consequence of this.”

[30]These proceedings were commenced on the 11 December 2001. Following that action, the Solicitor to the local authority sent a letter to the Claimant’s solicitors on the 17 December. In that letter it was confirmed that the NAA assessment had in fact been concluded in August and sent to the claimant on the 13 September. The letter sets out in some detail a summary of the council’s conclusions following that assessment. They are broadly along the lines I have outlined above. However, it is pertinent to note that it is stated that the “desired outcome” of the assessment is to help with rehousing. Nothing is said about the financial position of the claimant or whether she can afford housing, but the assumption seems to be that she can. There is no reference in that letter to Dr. Wood’s report, although that is not perhaps surprising since it had been received only shortly before the letter was sent. At that stage his evidence does not appear to have been taken into account.

[31]After setting out the conclusions reached in the assessment, the Solicitor said that the claimant was found to fall within the terms of section 21(1)(a). The authority had found that she had a need for housing simpliciter and not as a function of meeting a care need.

[32]I think it is pertinent to note that although the authority had formed the view that the claimant had some financial support, this was not the reason given for refusing her section 21 claim. The principal reason appears to have been that the claimant was not in need of care and attention as a result of her illness.

[33]The medical evidence was subsequently considered after the litigation had commenced. In the course of these proceedings a witness statement has been lodged by Ms Adonis. She says that since the original assessment she has further considered the matter and has taken into account the consultant’s report. It is agreed that I should treat the reasons given in the witness statement as the reasons now relied upon, in the light of the medical report, for maintaining the original decision. The relevant explanation is as follows:

“I have seen the medical evidence and contentions of the Claimant produced in support of the application for accommodation under the National Assistance Act 1948. The decision letter dated 17 December contains my assessment of the situation. In particular, I repeat and stand by the view I expressed through Solicitors items (c) and (d) of that letter. In my view her need was for housing only. She did not require money on her own account and the requirement for a house was not to be provided as a function of meeting any care need. Turning to the medical evidence, I do not accept that it makes good a case for 1948 Act provision. The practice here is to look carefully at the facts of each individual case. The medical evidence is in rather more general terms. On reading of that evidence, it could be argued that all HIV sufferers are at risk of developing Aids and because stress or lack of accommodation may cause HIV to develop into Aids, all HIV positive applicants should automatically be provided for under 1948 Act. I disagree with this approach, I believe that I am fully entitled as the Authority to have regard to all we know and have learnt of the applicant in assessing the nature and extent of any risk to which the terms of Section 21 and whether any need for care and attention has been made materially more acute by some other condition within the meaning of the ex-parte O decision.”

[34]Ms. Markus challenges this analysis. She contends that it demonstrates a woefully inadequate consideration of the medical evidence. She says that at the very least if it was going to be ignored then it was incumbent upon the authority to give reasons why they thought it right to reject its conclusions. Moreover, since there was no contrary medical evidence obtained by the Council to set against the claimant’s report, in the circumstances the conclusion could only be described as perverse.

[35]Mr. McGuire says that the conclusion was manifestly one which the applicants were entitled to reach. On the claimant’s own evidence she was not suffering any adverse consequences of her illness; moreover, even on the doctor’s report she was not going to be taking medication for some months. There was some evidence that being homeless would put stress on the claimant but the authority had to weigh that fact against the other matters to which I have made reference. It could not be said, he claimed, that the only proper determination was one which found that there was an imminent need for care and attention

[36]In my judgment the assessment made in July, given that there was no medical evidence nor even the right of access to the G.P., was a determination which the authority could properly reach. I therefore reject the claimant’s challenge to the original assessment. But the medical evidence casts a very different light on matters; in my view it does provide a very strong case indeed for saying that the Claimant will imminently be in need of care and attention once she loses her accommodation. The premise of Ms. Adonis’ analysis appears to be that the inference from the medical report is that all HIV sufferers are in need of care and attention and that the authority is entitled to reject that assumption and look at each case on its merits. I do not think that does justice to the specific problems identified by Dr. Wood nor to the trenchant way in which his conclusions are expressed. I have that clear impression that insufficient consideration has been given to this fresh and powerful medical evidence – perhaps because it has been considered in the context of ongoing litigation. Moreover, faced with this report alone, and in the absence of any medical evidence expressing a different view, I do not consider that it was open to the authority to conclude that the risk to health was not imminent. Dr. Wood said in terms that there could be deterioration in days.

[37]However, even if section 21 were the only available source of power to assist the claimant, I would not be prepared in the circumstances to grant a mandatory order requiring the authority to provide accommodation. This is because the authority ought to have the opportunity to decide whether it wishes to obtain a medical opinion of its own. In any event, there seems to be some continuing uncertainty about whether the authority accepts that the claimant has no resort to any finances other than child benefit. It should be entitled to explore this issue more fully. The Children Act.

[38]Although the original assessment was that there were no needs requiring the child to be accommodated at that time, it is not now disputed that given the imminence of homelessness, the child does have a need for accommodation. The question with respect to this aspect of the case is essentially one of vires; it is whether the authority is able to assist the child in the way sought

[39]There are essentially four issues which arise here. First, does section 17, properly construed, entitle the local authority to provide financial assistance to enable the claimant to secure accommodation even although it does not enable the authority to provide the accommodation itself? Second, if the answer to that question is “no”, will the failure to provide such accommodation or relevant financial assistance constitute, in the circumstances of this case, a breach of

Article 8 of the Convention

? Third, if it will, is it possible for the court to construe the section so as to make it compatible with the claimant’s Article 8 rights? Finally, if not, is this a case in which a declaration of incompatibility should be granted under section 4 of The HRA? As will be clear, the third and fourth questions arise only if there is potentially an infringement of Article 8 because of a limitation on the powers conferred by section 17. Even then, Mr. Sales submits that those questions do not arise for consideration if section 2 of the LGA is applicable. Accordingly, I shall consider that question after analysing the first two issues which arise in connection with the section 17 argument. Does Section 17 entitle the local authority to provide assistance?

[40]The answer to this question turns on the correct analysis of the decision of the Court of Appeal in R (on the Application of A) v Lambeth LBC

[2001] EWCA Civ 1624

; 4 CCLR 488 (hereinafter the “ Lambeth ” case). The facts of that case were far removed from this one. In that case the appellant lived with three children, two of whom were autistic and had severe learning disabilities. Her own health had started to deteriorate. The family lived in a two-bedroom ground floor flat with no garden or outside play area. The respondent assessed the children under the Children Act as needing re-housing on the grounds that the current accommodation severely impaired their health and well-being. Although the family were on the council’s waiting list for a transfer of accommodation there was little prospect of that occurring, partly because the area where the Appellant was choosing to reside was very popular.

[41]The principal issue in that case was the legal quality of the duty arising under section 17: once a child’s needs have been assessed pursuant to that provision, was the local authority under a duty to provide those needs which was enforceable in judicial review proceedings at the suit of the individual child. The Court of Appeal (Laws, Otten and Chadwick LJJ) unanimously held that it was not. However, the majority of the court (Otten and Chadwick L.JJ) also held that in any event section 17 did not enable a local authority to provide a child with accommodation in which it could live with the rest of its family. They held that the only basis for providing a child with accommodation was to take it into care pursuant to section 20 of the Children Act. Lord Justice Laws, without actually deciding the matter, was inclined to disagree on this point. He thought that the better view was that accommodation could be provided, particularly given the reference in section 17(6) to “assistance in kind.”

[42]The reasoning of the majority is set out in the opinion Chadwick LJ especially at paragraphs. 50 to 55. The key parts of his analysis were as follows:

“…..I am led to the conclusion that section 17 of the Children Act 1989 is not, itself, directed to the provision of accommodation. I am not persuaded that Parliament intended that a local authority could be required to provide residential accommodation in circumstances in which they would not otherwise be required to do so either under the subsequent provisions in Part III of the Act itself, or (more generally) under the provisions of the Housing Acts….. In my view it would be an extraordinary result- and one which, in the absence of clear words, I cannot hold to reflect the intention of Parliament- if the carefully structured provisions of the housing legislation, which are plainly intended to provide a fair allocation of resources amongst those with housing needs, were to be overridden, in specific cases, by recourse to section 17(1) of the Children Act 1989.”

[43]Mr. McGuire submits that there are two interrelated reasons expressed here as to why it is not possible to construe section 17 so as to enable the provision of accommodation. First, the Court of Appeal has determined that there is a comprehensive code in place: families in need are dealt with under the housing legislation; children in need by Part III of the Children Act. Second, the general power to provide accommodation pursuant to section 17 would undermine that clear division of responsibility and would interfere with the proper allocation of resources to those with housing needs. Mr. McGuire submits that the provision of financing accommodation would inevitably also be covered by this analysis; a local authority has no power to do it even if it wants to. He further submits that the provision of housing is a function of the authority; that by section 17(6) finance can only be provided in the exercise of its functions; and that accordingly it cannot be made available for the purpose of providing accommodation since that is not a lawful function. In this context it is pertinent to note that “functions” is defined as including powers and duties: Children Act section 105.

[44]Ms. Markus for the claimant challenges this analysis. She submits – and this is not in dispute – that in very many circumstances, including this case, the provision of financial assistance would not undermine the operation of the Housing Act at all. What is sought here- or at least what would be acceptable to the claimant- is the deposit on a property and the first month’s rent: and thereafter the shortfall between any contribution that the claimant could make and the rent due. The provision of such finance will not in any way affect priorities on the housing list, nor will it impact adversely on those who are seeking to be housed as homeless persons under part VII of the Housing Legislation. She also points out that there are other cases where the courts have recognised that financial assistance can be provided pursuant to section 17. For example, in R (Gulleed) v Barnet London Borough Council

(2001) 4 CCLR 128

the Court of Appeal held that it was appropriate for a local authority to provide cash so as to enable a child and her family to return to her home country. This in turn relied upon the decision of the Court of Appeal in Attorney General, ex rel Tilley v Wandsworth LBC

[1981] 1 WLR 854

where Templeman LJ, as he then was, thought that there was a power under a statutory predecessor to section 17 (section 1 of the Children and Young Persons Act 1963) to provide accommodation; it fell within the concept of “assistance”. Mr. McGuire submits that the instant case can be distinguished from Gulleed since that case merely recognises that returning someone to their country of origin may be a proper way of promoting the child’s interests; it does not meet the point that such assistance cannot be provided where its effect is to achieve what the Court of Appeal in Lambeth held was unlawful, namely securing accommodation. As for the Tilley case, he submits that the observations of Templeman LJ were merely obiter, and that in any event it is not open to this court to ignore the clear rationale of the Lambeth case even if the court were of the view that it does not sit happily with the earlier authority.

[45]I have reached the view that Mr. McGuire is correct and that there is no power to provide this financial assistance pursuant to section 17. It seems to me that the thrust of the majority decision in Lambeth , by which of course I am bound, is that accommodation for children can be provided only in accordance with the provisions in Part III of that Act. It does not sit happily with the rationale of that decision to conclude that the authority can nonetheless provide financial support for accommodation for the family. Chadwick LJ emphasised that the primary responsibility for providing accommodation for children is the parents; where they are unable to do so the authority’s powers are limited, so far as protecting the interests of children are concerned, to those conferred in Part III. I accept Ms. Markus’ argument that in fact the provision of finance for housing would not necessarily undercut the functions of the housing authority. For example, in this case it need not involve any reduction in the accommodation available to the authority for its housing needs. To that extent, I do not consider that the second reason relied upon by Mr. McGuire (the undermining of the housing legislation) has as much force as the first reason (the structure of the relevant legislation). I also recognise that the Lambeth case itself was determined in the context of transfers of accommodation. Nonetheless in my opinion the better view is that it is difficult to infer that Parliament would have intended unambiguously to prohibit the provision of accommodation directly but to permit it indirectly through financial assistance. This conclusion is reinforced by the fact that the financial assistance is in any event only envisaged as something to be given exceptionally.

[46]I do not, however, accept Mr. McGuire’s submission that section 17(6) only confers a power to give financial support in the exercise of its functions, and that since the direct provision of accommodation is not a lawful function, no cash can be provided. The premise of this argument is that the provision of accommodation under the Act involves the exercise of a relevant power, and hence is a function. In my view providing accommodation is better seen as the provision of a service in pursuance of a function, namely protection of the welfare of the child, rather than as a function in its own right. This is supported by section 17(2) which identifies specific powers and duties as those found in Part 1 of Schedule 2 to the Act. In any event, in my view there would be nothing intrinsically inconsistent with section 17(6) in treating the function as being the general duty to promote the welfare of the child, and the provision of financial assistance as the service provided in the exercise of that function. However, for the reasons given, I consider that a proper analysis of Lambeth , absent any human rights considerations, excludes the provision of financial assistance for accommodation. Is there a breach of Article 8?

[47]It is necessary to make the important preliminary observation here that even if section 17 does not provide a route whereby an infringement of Article 8 can be avoided, that will not matter provided there is some other legislative provision which will secure the claimant’s Article 8 rights. The Secretary of State says that section 2 of the LGA 2000 falls into that category. However, it is not necessary to explore that question unless and until it is established that Article 8 would indeed be infringed if the defendant authority were not able, one way or another, to secure that mother and child were kept together. That is the issue I now consider.

[48]It is common ground amongst all the parties that the separation of mother and child in these circumstances would constitute an infringement with the right to family life under Article 8.(1). The basis of this analysis is essentially as follows. It is accepted that Article 8 does not of itself require the provision of accommodation for a family (see Chapman v United Kingdom 33 EHRR 18 .) But taking the child away from the mother and putting it into care against the wishes of the mother would amount to such an infringement. It interferes with the mutual enjoyment between parent and child of each other’s company: see e.g. Olsson v Sweden (1988) 11 E.H.R.R.259 and R v United Kingdom [1988] 2 F.L.R. 455. Moreover, as the Secretary of State realistically accepts, even if the mother only consents reluctantly because it is the only way to protect the child, or because a compulsory care order would inevitably be made in any event, that is not true consent. Accordingly, Article 8(1) is engaged and the question then is whether Article 8(2) can provide a justification. The local authority does not submit that it can. It agrees that if all the other possible routes to providing accommodation or financial support are inapplicable, then it would not be able to justify taking the child into care because of difficulties in acquiring accommodation as a justification for separating mother and child. That seems to me to be a realistic concession. Typically it will be cheaper to provide accommodation (or the finance to acquire it) for the family than to take the child into care, and moreover that step will keep the family together. In addition, in this case the provision of the deposit and the payment towards the rent would not appear to prejudice the interests of others in the housing queue. Moreover, no one is suggesting that the claimant in this case is anything other than a good mother. In those circumstances it is difficult to see what the justification for taking the child away from the mother could be.

[49]Accordingly, in this case, unless there is some other way in which the relevant assistance can be provided, the rights of the claimant and her daughter will be infringed unless it is possible, using section 3 of the HRA, to construe the section compatibly with the claimant’s Article 8 rights. Before considering that issue, I shall consider whether the authority has the power to provide this assistance pursuant to section 2 of the LGA as the Secretary of State contends. Section 2 of the LGA 2000.

[50]Mr. Sales submits that the local authority had power to provide either accommodation or finance to secure such accommodation pursuant to section 2 of the Local Government Act 2000. The relevant provisions of section 2 are as follows.(1) Every local authority are to have power to do anything which they consider is likely to achieve any one or more of the following- (a) the promotion or improvement of the economic well-being of their area: (b) The promotion or improvement of the social well-being of their area, and (c) the promotion or improvement of the environmental well-being of their area.

(2) The power under subsection (1) may be exercised in relation to or for the benefit of- (a) the whole or any part of a local authority’s area, or (b) all or any persons resident or present in a local authority’s area.

(3) In determining whether or how to exercise the power under subsection (1), a local authority must have regard to their strategy under section 4.

(4) The power under subsection (1) includes power for a local authority to- (a) incur expenditure, (b) give financial assistance to any person, (c) enter into arrangements or agreements with any person (d) co-operate with, or facilitate or co-ordinate the activities of, any person, (e) exercise on behalf of any person any functions of that person, and (f) provide staff, goods, services or accommodation to any person.

(5) The power under subsection (1) includes power for a local authority to do anything in relation to, or for the benefit of, any person or area situated outside their area if the consider that it is likely to achieve any one or more of the objects in that subsection.

(6) Nothing in subsection (4) or (5) affects the generality of the power under subsection (1) Section 3 then sets certain limits to the power conferred upon the authority under section 2. The relevant provisions are as follows: (1)The power under section 2(1) does not enable a local authority to do anything which they are unable to do by virtue of any prohibition, restriction or limitation on their powers which is contained in any enactment (whenever passed or made). (2) The power under section 2(1) does not enable a local authority to raise money (whether by precepts, borrowing or otherwise. Subsection 3 provides for the Secretary of State to made an order preventing local authorities from doing certain specified things; and subsection 5 empowers him to issue guidance about the exercise of that power which, when issued, the local authority must have regard to in the exercise of its section 2 power.

[51]Mr. Sales submits that this is an extremely wide power which is perfectly capable of embracing, at the very least, the provision of financial assistance for accommodation such as the claimant is seeking in this case. He points out that the power under subsection 4(b) specifically covers the provision of financial assistance, and that section 2(2) in terms provides that the power can be exercised to the benefit of any persons resident or present in the local authority’s area.

[52]He submits that it would be open to the local authority to conclude, in the circumstances of this case, that the provision of financial assistance for the purpose of acquiring accommodation would be capable of promoting the social well-being of their area by benefiting two persons resident there. Mr. Sales referred me to the Explanatory Notes to the Local Government Act 2000. As Lord Hope indicated in RvA at para.82, it is legitimate to have regard to these when construing legislation. Paragraph 15 is as follows:

“Together, these sections allow local authorities to undertake a wide range of activities for the benefit of their local area and to improve the quality of life of local residents, businesses and those who commute to or visit the area. This is intended to clear up much of the uncertainty which currently exists about what authorities can do. Sections 2 and 3 allow authorities to take any action, unless it is subject to statutory prohibitions, restrictions or limitations specifically set out in legislation. The intention is to broaden the scope for local authority action while reducing the scope for challenge on the grounds that local authorities lack specific powers.”

Mr. Sales submits that this confirms that the power of this legislation is to confer very broad and general powers upon local authorities to be able to respond to the needs of local residents and businesses. He also relied upon certain paragraphs in the Guidance issued by the Secretary of State. This is entitled “Power to Improve or Promote Economic, Social, or Environmental Well-Being.” Paragraph 7 states that “the new power is wide ranging and enables the local authorities to improve the quality of life, opportunity and health of their local communities.” Paragraph 10 states:

“the breadth of the power is such that councils can regard it as a “power of first resort”

. Rather than searching for a specific power elsewhere in statute in order to take a particular action, councils can instead look to the well-being power in the first instance…”

[53]The power conferred by section 2 is in my judgment capable of extending to the grant of financial assistance for acquiring accommodation. The question is whether there is any “prohibition, restriction or limitation” on that power which is contained in any other enactment. Initially, Mr. Sales submitted that there was no such restriction even in relation to the provision of accommodation itself. However, he has resiled from that position and has recognised that there are certain statutory provisions which are to be found both in the Housing Act 1996 and in the Immigration and Asylum Act 1999 which would constitute limitations on the power on the authority to grant accommodation to the Claimant because she is an overstayer: see Housing Act section 159 to 161 and IAA section 118. The former provide that a local authority shall allocate housing accommodation only to those who are qualified to be allocated it; and the latter prevents accommodation being provided to those subject to immigration control save in special circumstances not applicable here. In addition, in my view section 185 of the Housing Act falls into the same category, (which I have considered in paragraph 9 above.) However, Mr. Sales contends that there is no “prohibition, restriction or limitation” on the power of an authority to give financial assistance for the purpose of acquiring accommodation, either in these provisions or any other. He draws a distinction between, on the one hand, a case where a statute merely confers a power in a specific field so that any limitation arises simply because the power cannot be exercised outside the specified field; and, on the other, a case where the legislation in terms imposes an express restriction or limitation on the exercise of the power. Even in the latter situation, he says that it will be necessary in each case to scrutinise the legislation carefully to see whether, properly analysed, it is intended to provide a bar to its exercise at all, or whether it is merely intended to prevent the power being exercised under the particular legislation in which the restriction is to be found.

[54]Mr. Sales draws an analogy from the relationship between common law and statute. He referred me to the speech of Lord Wilberforce in Shiloh Spinners v Harding

[1973] AC 691

at 725 where Lord Wilberforce said this:

“In my opinion where the courts have established a general principle of law or equity, and the legislature steps in with particular legislation in a particular area, it must, unless showing a contrary intention, be taken to have left cases outside that area where they were under the influence of the general law.”

A case where, as a matter of construction, the statute was held wholly to displace the common law is Harrison v Tew

[1990] 2 AC 523

. In the course of his judgment, Lord Lowry, with whose judgment the rest of their Lordships agreed, said this:

“One must distinguish between affirmative and negative provisions: the common law can co-exist with the statutory provision with which it is not inconsistent.”

[55]Mr. Sales says that the relationship is similar here: section 2 of the Local Government Act 2000 ought to be seen as the equivalent to the common law, and it will be capable of being relied upon where it is not inconsistent with other statutory provisions. It is only inconsistent where it contravenes a prohibition, restriction or limitation. He submits that the limitation in section 17 to the granting of financial assistance merely derives from the fact that the power does not extend that far; that is not a limitation such as is envisaged by section 3 of the LGA.

[56]Ms. Markus is content to accept that the section 2 might extend this far. Mr. McGuire, for the authority, contends otherwise. He submits that it would be inconsistent with the very structure of the Children Act to permit finance to be provided to secure accommodation, even pursuant to section 2 of the 2000 Act. Moreover, he submits that it is inconsistent with the philosophy underlying the housing legislation.

[57]In my judgment Mr. Sales is correct in his construction of this provision. It is drafted in very broad terms which provide a source of power enabling authorities to do many things which they could not hitherto have done. In my view, a “prohibition, restriction or limitation” is one which will almost always be found in an express legislative provision. I do not discount the possibility that such might arise by necessary implication, but I would have thought that would be very rare. (I note that the Guidance to which I have made reference assumes that any restriction, prohibition or limitation must be expressly spelt out in the legislation: see paras.62 and 63. However, Mr. Sales did not adopt that position, and I doubt whether it must always do so as a matter of construction of section 3.) Of course, where Parliament has conferred a positive power to do X, it will by implication have denied the right for that power to be exercised to do Y, but that is merely saying the Parliament has defined a clear boundary for marking out the scope of the power. In my view it would be inapt to describe the area where no power has been conferred as constituting a “prohibition, restriction or limitation” on the power which is contained in an enactment.

[58]Of course, the mere fact that the power exists does not mean that the local authority is obliged to exercise it in any particular case. Indeed, one might have thought that it would be a relatively exceptional case where the power would be exercised purely for the benefit of an individual; and there is not a duty enforceable by an individual. However, the issue here is whether there is a power which is available to the authority to grant financial assistance as has been requested by the claimant in this case. If there is, then it is not necessary to invoke section 3 of the HRA and construe any of the other provisions relied upon so as to be compatible with Article 8. If the refusal to exercise the section 2 powers would infringe the rights of the claimant or her daughter under Article 8, then of course the authority would be under an obligation to exercise the power in her favour. To that extent, the broad discretion conferred upon the authority under section 2 will be limited by the obligation imposed upon them properly to give effect to human rights.

[59]Since I take the view that section 2 of the LGA is wide enough to enable the authority to provide financial assistance, I do not strictly need to determine whether it is possible for section 17 to be read compatibly with Article 8; nor does any question of a declaration of incompatibility arise. I have, however, heard submissions on both these matters and accordingly I will briefly summarise my conclusions. Can section 17 be read compatibly with Article 8?

[60]In the event that I am wrong in the construction I have given to section 2 of the LGA, I need briefly to consider whether section 17 can be read compatibly with Article 8 so as to enable the authority to provide financial assistance. In my view it can. This would not of course require any recasting of the provision generally but only insofar as this was both necessary and possible to do so in order to protect Convention rights.

[61]The proper approach to the way in which section 3 should be used has been considered by the House of Lords in two cases, namely RvA , to which I have already made reference, and R v Lambert

[2001] UKHL 37

[2001] 3 WLR 206

. There is a difference in emphasis in the judgment of Lord Steyn and Lord Hope in RvA as to the extent to which it is permissible to rewrite a statutory provision so as to give effect to Convention rights. Lord Steyn takes the view that there is considerable scope to amend the legislation and that it is only if it would conflict with Parliament’s express intention that the courts should refuse to construe the statute compatibly. The declaration of incompatibility is, on his analysis, a matter of last resort. Lord Hope has adopted a more conservative approach; he has taken the view that there is a limit to the extent of judicial creativity even where Convention rights are in play. In RvA he put the position as follows:

“The rule of construction which section 3 lays down is quite unlike any previous rule of statutory construction. There is no need to identify an ambiguity or absurdity. Compatibility with Convention rights is the sole guiding principle. That is the paramount object which the rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle the judges to act as legislators. As Lord Woolf CJ said in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 , [2001]19 EGCS141, s. 3 of the 1998 Act does not entitle the court to legislate; its task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to give to make it compatible. It seems to me that the same result must follow if they do so by necessary implication, as this too is a means of identifying the plain intention of Parliament (see Lord Hoffman’s observations in R v Secretary of State for the Home Department, ex p Simms [1999] 3 All E R 400 at 412, [2000] 2 AC115 at 131).”

[62]Lord Hope reiterated this approach in the Lambert case, adding that it was necessary to be able to identify which words should be altered or added in order to make a statute Convention compliant: (paragraph 80).

[63]I confess a preference for this approach. It seems to me that it better reflects the fact that section 3 is described as an interpretative section; and in my view it also more faithfully recognises and gives effect to the careful balance between Parliamentary sovereignty and judicial the protection of human rights which the 1998 Act is designed to achieve. In any event, the majority of the Court of Appeal (Brooke LJ and David Steel J, Hale LJ dissenting) have adopted this approach in Fardous Adan v London Borough of Newham . (unrep; 14 March 2001). They refused to find that a jurisdiction given to a court on a point of law could, in order to give effect to the claimant’s human rights, properly be read as extending to a jurisdiction on law and fact. Although the majority did not in terms refer to the differences between the approaches of Lord Steyn and Lord Hope, David Steel J expressed a preference for Lord Hope’s approach and Brooke LJ relied upon the dictum of Lord Woolf in the Donoghue case (which in turn is referred to approvingly in the extract from Lord Hope’s speech which I have set out above).

[64]There can be no doubt that on the approach adopted by Lord Steyn it would be easy to construe section 17 consistently with the claimant’s Article 8 rights; in effect it would simply involve rewriting the legislation in a way which would secure the rights in issue where they would otherwise be infringed. But I consider there is no difficulty even adopting Lord Hope’s more limited approach. Although I think that the better view is that Lambeth on its proper analysis precludes the giving of finance to secure accommodation, it is not a case in my judgment where it can be said that the limitation is necessarily implied in the statute itself, although Mr. McGuire has argued to the contrary. Rather it is an inference from the structure of the legislation. In this case it would not even be necessary to add or formulate any additional words (although this could be done) since Laws LJ considered that it was lawful to provide accommodation even with the words as they stand. That seems to me, with respect, a perfectly cogent construction of the section. In my view, therefore, it is both linguistically and constitutionally possible to construe the provision so as to give effect to the claimant’s Article 8 rights, were that necessary.

[65]Mr. Sales submitted that the issue of construction in fact required only the application of well established common law techniques. He referred me to the case of Simms , referred to by Lord Hope in the extract from RvA which I have quoted above, in which the House of Lords, in a case concerning the right of prisoners to have access to the courts, held that it would require clear and unambiguous language before the courts should assume that Parliament intended to take away fundamental common law rights. Mr. Sales submitted that similarly the courts should not assume that Parliament intended to interfere with human rights in the absence of clear and unambiguous words. They are, he says, lacking in this case.

[66]As a general rule of statutory construction where Parliament is alleged to have infringed human or fundamental rights by legislation, this is surely correct, and indeed Lord Hoffmann effectively says as much in Simms : see p.131F to 132B. However, it seems to me to be less compelling where the question is whether Parliament intended to confer a power in a particular statute whose exercise may be necessary in certain limited contexts to ensure that a Convention right is not infringed. Such powers may be provided in various ways and in other pieces of legislation. I am inclined to think that the rationale for the principle adopted in Simms does not readily apply where the complaint is not that rights have been removed but rather that certain powers, only sometimes necessary to protect the relevant Convention right, have not been conferred. The declaration of incompatibility.

[67]In the circumstances it is not necessary for any declaration to be granted. Even if I had felt that there was no provision which could, even using the interpretative techniques required by section 3, be construed consistently with Article 8, I think that it would be inappropriate to grant a formal section 4 declaration. The reason is that the alleged failure here would be the fact that legislation in general does not allow in these circumstances for assistance to be given to enable the claimant to acquire accommodation to keep mother and child together. But it is not just the Children Act which, on this premise, would be failing to confer such a power. That would not matter if the power were conferred elsewhere. Strictly it is the body of legislation taken together. In these circumstances I am far from convinced that the court could properly be satisfied that any particular statutory provision is incompatible with a Convention right, as section 4(2) requires.

[68]Mr. Sales argued that the court ought to identify the provision which is most closely linked to the Convention right infringed. In this case he submits that it is the Children Act because it is pursuant to powers conferred by that Act that the daughter would be taken into care, and that there would be the corresponding disruption of family life. Mr. McGuire, on the other hand, says that the true villain of the piece is the housing legislation which denies the claimant the right to accommodation because of her immigration status. But for that, she would not face the risk of being separated from her child. It is this which causes the claimant to be on the streets and vulnerable to a care order for her child.

[69]I do not find it particularly helpful to try to answer what appears to me to be an unrealistic and somewhat arbitrary task of determining which statutory provision is most closely causatively related to a statutory omission. I would be inclined simply to state that there is a gap in the legal assistance provided which, in certain very limited and specific circumstances, may lead to a breach of a Convention right, without making a formal section 4 declaration. It would then be for the government to decide how, if at all, they think that the gap should best be bridged.

[70]I recognise, however, that the weakness of that approach is that unless a declaration of incompatibility is made, it will not be possible for the appropriate Minister to use the fast track for amending the relevant legislation pursuant to section 10 of the 1998 Act. Under that provision he can only correct the particular statutory provision which has been identified as being in breach of the Convention right. Accordingly, I recognise that Mr. Sales’ approach would have the merit of enabling the court at least to identify some statutory provision in respect of which the section 10 power could be exercised. However, notwithstanding this advantage, I doubt whether a proper analysis of section 4(2) permits the court to say that it is any particular statute which can be identified as being incompatible with the Convention right, at least in a case where the failing is the inability to take positive steps to help a claimant, and the power to take those steps could realistically be located in more than one statutory provision and be conferred upon more than one public body.

[71]Another possible solution suggested to me was to identify a number of provisions which produce the incompatibility and thereby give government a range of options through which to exercise the section 10 power (if that is what they wished to do). That would enable the government departments potentially affected to determine in respect of which particular provision the power should be exercised. I find that an even less acceptable legal solution, however, since I do not see how the court can properly conclude that a series of provisions are incompatible with a Convention right when only one of them –or indeed some entirely different statute- needs to be amended, or fresh legislation needs to be passed, to resolve the incompatibility. In the event, however, they are problems for another day.

[72]Conclusion In my judgment the authority has not properly exercised its powers under section 21 of the NAA. Its determination on that issue should be quashed and the matter should be reconsidered by it. Even if the authority concludes that it is not open to it to exercise its section 21 powers, it is able to provide the necessary financial support by way of a deposit and the payment towards the rent by invoking its powers under section 2 of the LGA 2000. If that is the only way in which it could avoid a breach of the claimant’s Article 8 rights, then in my view it would be obliged to exercise its statutory discretion in that way. In the event, it is not in my view necessary to invoke either sections 3 or 4 of the HRA. *************** MR JUSTICE ELIAS: In this matter I now hand down a judgment which is, essentially, in the terms already notified to the parties, save for certain typographical amendments. The orders that follow from this have, in large part, been agreed between the parties. There is an order as follows:

"The decision of the defendant not to provide any service to the claimant under section 21 of the National Assistance Act 1948 is hereby quashed and the defendant is required to consider the matter afresh"

. I agree that the following declarations are appropriate in the light of the judgment: "(a) The defendant has no power under section 17 of the Children Act 1989 to provide financial assistance to the claimant to enable her to secure accommodation for herself and her daughter. (b) The defendant has a power under section 2 of the Local Government Act 2000 to provide financial assistance to the claimant to enable her to secure accommodation for herself and her daughter, the power and purposes of payment of an initial deposit and of rent. (c) In circumstances where a refusal to exercise the powers under section 2 of the Local Government Act 2000 to provide such financial assistance will infringe the rights of the claimant or her daughter under

Article 8 of the European Convention on Human Rights

. The power so to act becomes a duty so to act. I then have to deal with questions of costs. There has been some dispute as to that. I have received submissions, both from the claimant and the defendant. The Secretary of State as intervenor has accepted his own costs. The position, essentially, is that the claimant that he hears has, in large part but not entirely, succeeded on the basis of the original claim. However, one of her contentions was that she was entitled to have financial assistance provided pursuant to section 17 of the Children Act 1989 and, on that ground, I have found against her. It is true, however, that, but for the power which is capable of being exercised under section 2 of the Local Government Act 2000, I would have found that in circumstances where the claimant's human rights were adversely affected, section 17 of the Children Act could, pursuant to section 3 of the Human Rights Act, be construed so as to provide the assistance which the claimant seeks. Nonetheless, the initial section 17 challenge did not succeed. Furthermore, I have found that on the complaint as initially launched in the court, the challenge under section 20 of the National Assistance Act would also have failed. It was as a result of the medical evidence which was provided to the defendant only shortly before permission to appeal was granted, that, in my view, altered the picture and was the basis on which I held that the section 21 complaint is justified. In these circumstances I do not think it appropriate that the claimant should receive all their costs and I have reached the conclusion that a fair proportion of the costs which she should recover is two-thirds. Accordingly, I make the following additional orders. The claimant do recover two-thirds of its costs from the defendant of the action and that there be a detailed assessment of the claimant's publicly funded costs.

Cited in 15 later judgments

and 6 more of the most senior