McDonagh & Anor, R (on the application of) v London Borough of Hounslow [2004] EWHC 511 (Admin)

Case No CO/5292/2003[2004] EWHC 511 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 2 March 2004
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF MR and MRS MARTIN MCDONAGHClaimant-v-
Between
LONDON BOROUGH OF HOUNSLOWDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR A PANTON (instructed by Lovell Chohan, Middlesex, TW3 3EB) appeared for CLAIMANTMS A CAFFERKEY (instructed by Borough Solicitor Department, The Civic Centre, Lampton Road, Hounslow)appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of a decision by the defendant council in late September early October 2003 that it would not provide accommodation for the claimants' family in Hounslow but would instead provide the family with air tickets to enable them to return to Ireland.[2]The background of the case is somewhat unusual. The family had originally lived in Isleworth. They were evicted from their home there and decided to go with their children to Dublin. When they left for Dublin they had seven children; they now have nine children.[3]The family arrived in Dublin in early September 2001 and were provided with accommodation by Dublin City Council. Initially they were housed in bed and breakfast accommodation, but after that they were housed, temporarily, in a private rented house and then they were allocated a 4 bedroom house in Ballyfermot, Dublin in October 2002.[4]The family returned to London on 2nd July 2003. The following day they presented themselves to the defendant's Homeless Persons Unit. They explained that they had left their accommodation in Dublin because they and their children had suffered racial abuse and harassment whilst living there. In all other respects they accepted that the accommodation itself was suitable for their needs.[5]The defendant council's housing department provided the family with temporary bed and breakfast accommodation whilst it carried out its inquiries under the Housing Act 1996. In a detailed letter dated 14th August 2003 the housing department explained that it had concluded that although the claimants and their family were homeless and in priority need and did have a local connection with Hounslow, they had made themselves intentionally homeless. The reasons are set out in some detail in the letter dated 14th August 2003 but, in summary, the council concluded that it was not reasonable for the family to have vacated their settled accommodation in Dublin and to have moved to the United Kingdom without having made any suitable arrangements to provide settled accommodation in the United Kingdom.[6]The allegations of harassment were considered and it was noted that the claimants had not pursued the remedies that were open to them in Dublin. Thus, the council concluded that the claimants were intentionally homeless. "This is due to you having left your accommodation in Dublin which was available to you and which was reasonable for you and your family to continue to occupy."[7]The letter stated that accommodation would continue to be provided by the council until Friday, 19th September 2003.[8]That decision by the council's housing department has never been challenged. There was a request made by the claimants' solicitors for a review out of time. That request was refused on the basis that the request had been made late. There has been no challenge to that decision.[9]The defendant's Social Services Department became involved. The background to the Social Services Department's decision to offer the family air tickets to return to Dublin is as follows. The Social Services Department assessed the family's needs. It had an assessment that had been carried out by the West London Mental Health NHS Trust of Mr McDonagh. In that assessment Mr McDonagh was noted as saying that he came "from a large Irish travelling family" and that he had been "born and reared in Ireland, travelled around a lot, alternating between houses and caravans". The Social Services Department in Hounslow also had a letter from a social worker at the travellers' section in Dublin City Council which explained the circumstances in which the McDonagh family had been housed in Upper Ballyfermot from Dublin's City Council's housing list in Autumn 2002. It also explained the family's perception of the problems that they had suffered in Upper Ballyfermot. The letter said in part that it was hoped that the family would not be treated on a simple "return to local authority origin basis" because the case was clearly more complex than a voluntary homeless situation.[10]The assessment of the defendant council's Social Services Department, set out in an initial assessment record, provides a family tree that would indicate that Mrs McDonagh's parents were either born in or had been settled in Manchester and that Mr McDonagh's mother was either born in or settled in Cranford. Otherwise no information is given as to where Mr and Mrs McDonagh were born or indeed where the children were born.[11]The assessment says under Family History and Function:
"Mr and Mrs McDonagh are from a large Irish Travelling family. Social Services records indicate a dysfunctional family history."
[12]There is then a discussion of the family's reasons for returning to England from Dublin which includes the following. "Francis Griffen -- Travellers Social Worker in Dublin, who worked with the family, was unable to confirm that families allegation of racism. She stated that the family told her they wanted to return to England as they had a large network of family and friends and they felt it was unfair they had been evicted from their previous address (47 Old Pound Close Isleworth). There were no complaints or concerns about the family as tenants in Ireland. All of the family's difficulties are as a result of their current housing situation. The children's health and educational needs are neglected due to their lack of stability and this is a direct consequence of the family making themselves intentionally homeless."[13]The recommendations of the social worker were:
"In the light of the investigation and following discussions with my manager the best option for the family is to return to Ireland. Through discussion and reports from other agencies there have been no specific concerns for the children and the allegations of the parents have been unsubstantiated."
[14]There was then a discussion of possible difficulties about travelling back to Ireland and mention was made of the fact that Mrs McDonagh would be able to fly back to Dublin because she was less than 28 weeks pregnant. Past that threshold a medical certificate would have been required. The recommendations concluded:
"We have considered the needs of all the children and in the absence of any evidence with regard to any specific health needs the local authority have no concerns. However, the children are not attending school and do not appear to be registered with a G.P. This situation is due in principle to the parents not providing stability of accommodation to enable the parents to meet these specific needs. The local authority purchased airline tickets for the whole family (non-refundable) at a significant cost which given the limited resources can ill afford to do. These resources would best be targeted towards local need."
[15]It was noted that the parents did not agree with that recommendation.[16]When the social workers told the claimants of their decision it is clear that they protested. Their solicitors wrote a number of letters to the council. On 22nd September 2003 the council was told that consideration was being given to challenging the homeless persons decision but the point was made that the immediate concern was for the children. In response, on 24th September, the borough solicitor said:
"Your clients were informed on 14th August of the Local Authority's Homeless Person's decision and have chosen not to lodge their appeal within the time stated. This will be taken into account by Social Services together with the fact that your client has accommodation in Dublin which is available and which was reasonable which was reasonable for her and the children to occupy."
[17]Further letters of protest were written. On 25th September the claimants' solicitors said that Mrs McDonagh had told the social worker that the lives of her children would be in danger if she returned to Dublin, and she refused the offer to return. That letter returned to the homeless persons decision letter dated 14th August and said that a request to extend time had been lodged. "Although the respective department has declined to extend time as the request was lodged out of time. It is in this regard that we are instructed to take issue with the Homeless Persons Department. In any event there is a change in our client's circumstances and in this regard our client will be entitled to make a fresh application to the Homeless Persons Unit."[18]As I have mentioned, there was no challenge to the refusal to extend time and no fresh application has been made to the council's Homeless Persons Unit.[19]The borough solicitor responded:
"We are instructed that following enquiries with Dublin Social Services it was not reasonable for your client to have vacated her accommodation in Dublin and to arrive in the UK without making suitable arrangements to provide settled accommodation for herself and her family. Social Services have satisfied themselves that they have made appropriate enquiries with the Dublin Social Services and given the circumstances of your client's departure from Dublin the Local Authority is prepared to fund the relevant return travel fares."
[20]A witness statement of Ms Fagan, a social worker employed by the council, explains:
"I had discussed with Francis Griffin the recommendation that the Social Services would be funding the family's return to Dublin. Ms Griffin stated that on the Claimants return to Dublin they would be found Bed and Breakfast accommodation temporarily until suitable permanent accommodation could be found. She confirmed that Dublin City Council would be able to provide the family with accommodation on their return."
[21]The claimants' solicitors wrote on 26th September referring to the fact that inquiries had been made and asking for an explanation of the basis on which the council had come to such "an unfair conclusion", that is to say the conclusion that it was not reasonable for the claimants to have left their accommodation in Dublin.[22]Yet another letter of the same date says:
"Mr McDonagh states that your client department are not listening to what he has to say, and he states that he does not wish to return to Dublin for the reason that his family will suffer harm."
[23]On 1st October Ms Fagan says that she spoke with Mrs McDonagh. She says:
"I explained that the London Borough of Hounslow's Social Services Department were awaiting confirmation of the details of the family's travel and that the rail travel and flights were being booked for 02/10/03. Mrs McDonagh was very angry about this and stated she would refuse to go. Mrs McDonagh was aware that if the family refused this assistance that the London Borough of Hounslow's Social Services Department would no longer be able to assist with providing accommodation to the whole family, but if necessary would consider their obligation to the children of the family under s20 of the Children's Act 1989."
[24]On the same day a letter was written by the claimant's solicitors referring to a telephone discussion between the claimant and a social worker and the letter said:
"Our client states that she categorically informed your client department that she cannot and will not return to Dublin because of the continuing problems, for she has had to flee in preservation of her family's safety."
[25]The upshot of it all was although the tickets were delivered to the claimants' address they refused to travel back to Dublin on 2nd October.[26]In a letter of that date the claimants' solicitors wrote to the London Borough of Hounslow Social Services saying:
"In the circumstances, Mr McDonagh has attended our offices this morning and informed us the children are petrified of flying and say they will refuse to board the flight. Mr McDonagh further states his children are scared to return to Dublin. He has further concerns with regards to his wife's pregnancy ... The whole arrangement cannot have taken into consideration the welfare of the children and the family as a whole."
[27]In the event the court granted interim relief and since that time the family has been accommodated in bed and breakfast accommodation by the defendant council.[28]On behalf of the claimants Mr Panton challenged the decision taken at the end of September and the beginning of October not to accommodate the family in Hounslow but to offer them tickets to fly back to Dublin. One of the principal points raised in his skeleton argument was that Mr and Mrs McDonagh and their children are British. A second witness statement by Mrs McDonagh explains that she was born in Glasgow and her husband was born in Halifax. She also gives details about where her children were born. Most of them were born in this country. Two of the children were born in Dublin.[29]The submission made by Mr Panton is that since the claimants were born in the United Kingdom prior to 1981 they are British citizens and their children are therefore British citizens and what the council was proposing to do was to require a British family to travel to a foreign country. He submits that that was unreasonable. I would have accepted that submission had the council been aware of the fact that the family was British rather than a family of Irish travellers. It is important to remind oneself that this is not an appeal against the council's decision in October 2003; it is an application for judicial review. The claimant has to persuade this court that the council's decision taken at the end of September and the beginning of October 2003 was unlawful on the grounds of unreasonableness. Plainly the reasonableness of the decision has to be assessed upon the basis of the information that was available to the council at that time.[30]At that time the council knew that Mr McDonagh was saying that he had been born and bred in Ireland and came from a large Irish travelling family. That information was to an extent corroborated by the fact that the family had recently arrived in June 2003 from Dublin where they had been living since September 2001. Moreover, they had been accommodated by Dublin City Council. Although there is a flurry of correspondence from the claimants' solicitors explaining why the claimants did not want to return to Dublin, at no time was it suggested to the council that, contrary to the view recorded in the Social Services assessment form, this family was a British family rather than an Irish travelling family. In principle, it would not be in the least unreasonable to make arrangements for an Irish travelling family which had been provided with accommodation in Dublin to travel back to Ireland, particularly if the social workers had ascertained from their opposite numbers in Ireland that accommodation would again be made available for the family in Ireland.[31]Mr Panton submitted that it was incumbent upon the council to make inquiries to ascertain the nationality of the claimants. I do not accept that submission. As matters stood at the beginning of October 2003 there was nothing to put the council on notice that the claimants might be British. All the information in the possession of the council was consistent with the proposition that the claimants were Irish travellers and that they had left Dublin unreasonably. That was the unchallenged conclusion of the Homelessness Unit.[32]Against that background, it was not in the least unreasonable in principle, the claimants having unreasonably left Dublin, to make arrangements to enable them to return since the children's only apparent need was for settled accommodation. Mr Panton further criticised the reasonableness of the decision upon the basis that the council was simply providing air tickets to the airport, which could not possibly be said to be proper accommodation for the children. There was therefore a failure to discharge the council's duties under section 20 of the Children Act. I do not accept that submission. It does not accord with the reality of the position. The social workers in Hounslow had discussed the position with their opposite numbers in Dublin and as a result of those discussions they were reasonably entitled to be satisfied that if the family were assisted to travel back to Dublin then accommodation would be made available to them there by Dublin City Council.[33]Mr Panton made the point that there was no identified accommodation in Dublin. That is of no consequence. The family were temporarily accommodated in bed and breakfast accommodation in Hounslow. The proposal was they would return to Dublin where Dublin Council's Social Services would provide them with similar bed and breakfast accommodation until such time as more permanent suitable accommodation could be provided.[34]It is further submitted on the claimants' behalf that they have made it quite plain that they were not prepared to return to Dublin. In response to that submission Ms Cafferkey on behalf of the council referred me to the decision of Mr Justice Moses in R (Ali) v Birmingham City Council [2002] H.L.R. 51. In that case the claimant was a Dutch national of Somali origin and the mother of young children who came to the United Kingdom from the Netherlands. The children's fathers remained in the Netherlands. In due course the Social Services Department of the defendant local authority conducted an assessment and concluded that the children were in need of accommodation and financial support. Following discussion with the Social Services Departments in the Netherlands it was concluded that those needs would best be met by a return to the Netherlands where support for the whole family was available. The council so informed the claimant.[35]Dealing with the question of the claimant's unwillingness to return to the Netherlands, Mr

Justice Moses said this in paragraph 55:

"The Council accepted that there was a possibility that the offers would not be accepted. It was that possibility which led the council to consider making offers to accommodate the children separately. But the Council is empowered to meet its duty to these children by funding the return of the family to the Netherlands, as the decision of the Court of Appeal in G teaches. So to do fulfils a fundamental objective of the 1989 Act, namely to keep the family together. The use of section 20 was only the Council's position of last resort. The necessity to do so only arose if the preferred means of meeting that duty was rejected ... The Council has wide powers from which it can choose how to meet a child's needs. It does not seem to me that a permissible offer to fund the return of the family to meet the needs of the children becomes impermissible because the offer is rejected."
[36]It seems to me that those observations apply with even more force to the present case, given the circumstances as they presented themselves to the council at the end of September and the beginning of October 2003. Whilst it was plain that the claimants were most unhappy about returning to Dublin, it was by no means certain that they would positively refuse to do so when push came to shove. Thus the letter dated 26th September from the claimants' solicitors said that Mr McDonagh does not "wish" to return to Dublin for the reason his family will suffer harm.[37]In considering the council's response to these expressions of view from the claimants it has to be borne in mind that the council was considering them against the background of the housing department's unchallenged rejection of the claimants' reasons for having left their accommodation in Dublin. Against this background the mere fact that the claimants had said that they were unwilling to return to Dublin did not mean that the council was prevented from putting that forward as a solution to the problem of providing assistance for the family. As things have turned out, it is now clear that the family are resolute in their decision not to return to Dublin but, as I say, their resolution was by no means as obvious at the beginning of October 2003 as it is now.[38]As formulated the claim appeared to suggest that there was a duty upon the defendant to accommodate the claimants' family under section 20 of the Children Act 1989. In the light of the House of Lords' decision in R (G) v Barnet LBC [2003] 3 WLR, 1194, the parties are agreed that the defendant was not under a duty to accommodate the entire family but that it had a power to do so. Mr Panton submitted that it was simply unreasonable for the council to refuse to accommodate the entire family and it was unreasonable for the council to provide the airline tickets effectively on a "take it or leave it" basis, saying that if the tickets were not accepted then assistance would be withdrawn. He relied upon the decision in R v Hammersmith & Fulham LBC e.p. Damoah, 31 HLR, 786, a decision of Mr Justice Maurice Kay (as he then was).[39]In that case the claimant was born in Ghana and was the mother of two children. She had married a Swedish national and lived with her husband in Sweden for some years but they separated because of domestic violence. In due course she left Sweden with her children and came to the United Kingdom. She intended to settle here. She was a qualified nurse and hoped to obtain employment. She sought assistance from the council's Social Services Department. After carrying out investigations the Social Services department said that it had decided that it was in the best interests of the children for them to return to Sweden. The department was willing to pay for the claimant to return to Sweden. However, it was not prepared to give any further financial assistance if she remained in the country after a certain date. In considering the lawfulness of that approach Mr

Justice Kay summarises the council's submissions as follows:

"An offer was, therefore, made that would, if accepted, have the effect of bringing about that which the respondent had assessed as being in the best interests of the children and the making of that offer could not be said to be wholly unjustifiable in the Wednesbury sense. The respondent recognised that if the mother decided not to accept the offer that it would have a continuing duty to the children and would have in those circumstances to reassess the position in the light of what would then be changed circumstances. The provision that would then be required could not be predicted and the respondent would have to consider the use of the wide range of powers that it then had available to it."
[40]He continued on page 791:
"If that was a proper reflection of that which the respondent had done, then subject to any arguments that the statute prohibits the respondent from acting in the way that is suggested, the argument is one that would be likely to succeed."
[41]He then went on to consider the precise terms of the letters that had been written by the local authority in that case. It was clear from the terms of those letters that the authority had said, "We are prepared to finance your flight back to Sweden but we are not prepared to do anything more, in particular nothing more would be done to assist the children". On that basis Mr Justice Kay concluded that the council's decision was unlawful and that there should be a further review. The further review would have to take account of the current position which included the fact that: "... there is no realistic prospect that at this stage the applicant is going to return to Sweden with her children".[42]On page 793

the judge summarised his general conclusions as follows:

"A local authority may in the discharge of its duties under Part III of the Act make an offer to the parent of the child it determines to be in need to give financial assistance for the family to return to a country from where they have come and where it believes the needs of the child will be best met. It is wrong, however, for the local authority to decide to withdraw all further assistance for the child in the event that the parent declines to accept the offer and it must clearly follow that it is wrong for it to threaten such a course of action even if it has made no such decision."
[43]It follows that it was lawful in principle for the council in the present case to give financial assistance to the McDonagh family to enable them to return to Dublin from whence they had come and where it believed the needs of the children of the family would best be met.[44]In the present case the council did not fall into the error of threatening that it would not assist the children if the flight tickets were not accepted. It is plain from the passage in Ms Fagan's witness statement (above) that Mrs McDonagh was told that while the Social Services Department would no longer be able to assist with providing accommodation for the whole family it would, if necessary, consider its obligation to the children of the family under section 20 of the Children's Act 1989. In my judgment, that was an entirely proper course for the council to take and it cannot be said to have been in any way unreasonable.[45]That leaves the final point raised by Mr Panton in his submissions which is the bold submission that given the size of the family now, nine children -- at the time of the decision under challenge eight children -- no reasonable Social Services Department could have reached any conclusion other than that it was appropriate to provide accommodation for the whole of the family. I do not accept that submission. The council has a very broad discretion under section 20. It has a range of powers available to it. In any event, its principal response to the dilemma faced by the family at the end of September 2003 was to make available financial assistance to enable them to return whence they had come. For the reasons that I have given, far from being unreasonable that was a readily understandable decision upon the basis of the information available at that time. The council kept in reserve its powers under section 20 and made it plain that it was prepared to use them if need be.[46]On behalf of the council Ms Cafferkey has made it plain that all the council seeks to do in these proceeding is to defend the lawfulness of its decision at the end of September and the beginning of October 2003. It accepts that the children's needs will have to be reviewed in the light of current information. That information includes the material provided by the claimants as to their and their children's nationality. It includes the lapse of time since the claimants have left Dublin and therefore the weakening of their connection with that city. It also includes the fact that when push came to shove the claimants were not prepared to go back to Dublin. These are all factors which the defendant Social Services Department will have to consider. It will also have to consider the fact that there has been a further addition to the family. It would not be appropriate for this court to try to second-guess what the Social Services Department's decision might be.[47]Given the breadth of the discretion conferred by section 20 of the 1999 Act, the fact that it requires an exercise of specialised judgment and a detailed analysis of all the facts, I am not prepared to accede to the submission made by Mr Panton that the only possible decision that can be made in this case is that the family must be offered accommodation. Whether that would be the only appropriate response to the children's needs must be a matter for the council's Social Services Department. Its decision will be subject to judicial review on normal Wednesbury grounds. This claim is simply concerned with the lawfulness of the decision that was taken at the beginning of October 2003. For the reasons set out above that decision was an entirely lawful and reasonable response to the claimants' problems as they appeared to be at that time.[48]MS CAFFERKEY: May I invite you to dismiss the claim and I make an application for our costs subject to --[49]MR JUSTICE SULLIVAN: Yes, the claim is dismissed. I assume that the claimants are legally aided, are they not?[50]MR PANTON: They are.

MR JUSTICE SULLIVAN: I am sorry, did you ask for the normal legal aid order?

[52]MS CAFFERKEY: I did, yes.[53]MR PANTON: My Lord, the only thing I would say on that is that it was not until today orally that we were told that this was an entirely academic review and that the position had now changed and there was no danger of them being sent back to Dublin. It is not even mentioned in my learned friend's skeleton argument that the position has now changed. If we had known that this was purely of academic interest only, obviously as the claimant is legally funded it would not have been run.[54]MR JUSTICE SULLIVAN: Yes. It is possibly a pity that the parties did not get their heads together at a little earlier stage but, in any event, the order is likely to be of academic interest in any event, not at least on the facts(?) It seems to me that the proper order is, the claim having been dismissed, that the claimant should pay the council's costs but since the claimants are legally aided there will be the normal order, that is to say not to be enforced without the consent of the court and there should also be detailed assessment for community legal services funding purposes.[55]MR PANTON: I am grateful, my Lord.