ES, R (on the application of) v London Borough of Barking and Dagenham [2013] EWHC 691 (Admin)

Case No CO/12322/2012

[2013] EWHC 691 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

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

Date 27 March 2013

Before

MR ROBIN PURCHAS QC

(Sitting as a deputy judge of the High Court)

Between

THE QUEEN (on the application of ES)Claimant

The LONDON BOROUGH OF BARKING and DAGENHAMDefendant

Azeem Suterwalla (instructed by Wilsons Solicitors ) for Claimant

Kelvin Rutledge (instructed by the Borough Solicitor) for Defendant

Hearing Hearing dates: 19 th March 2013

Judgment

Mr Robin Purchas QC:

Introduction

[1]The Claimant seeks judicial review of the Defendant’s failure to assess her son’s needs for the purposes of providing accommodation and support under section 17 of the Children Act 1989 (“the 1989 Act”). While the case is specific to its particular facts, it raises the question of the extent to which the Defendant could rely upon the Secretary of State’s power to provide facilities for accommodation under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”) in deciding whether or not to carry out an assessment of need.

The Facts

[2]The Claimant is an Albanian, who arrived in this country on the 27th June 2009 and claimed asylum and humanitarian protection because of her fear of domestic violence if she returned to her country of origin. She stated that she had been raped and had become pregnant. Her son was born on the 18th February 2010. Her claim for asylum and humanitarian protection was rejected on the 22nd September 2009, on grounds including that there was no reason for her not to return to Albania where there was sufficient protection under the law. In July 2012 she sought support for her son from the Defendant under section 17 of the 1989 Act. At the time the Claimant and her son were staying with a family friend on a temporary basis.

[3]The Defendant carried out an initial assessment of need, which was completed by the 7th September 2012. The assessment considered the child’s health, emotional and behavioural needs and concluded that there was no concern regarding the Claimant’s ability to respond to the child’s needs appropriately in that respect. The assessment concluded:

“At the moment the family are staying with a close friend, this is helping them achieve some sense of stability and mother should be able to access support and services from Children Centre. Mother is not in a relationship and is hoping to resolve her outstanding immigration through the support of Shpresa Programme.”

I should explain that the Shpresa Programme (“the Project”) was a charitable organisation for the support of refugees from Albania and Kosovo. The assessment went on to conclude:

“From 2009 to date (the Claimant) appears to have been supported by a network of friends and relatives as well as taking up part time work as a cleaner. At the moment (the Claimant) does have accommodation ... (the Claimant and her son) have their own bedroom to sleep in and the room is furnished to meet their needs – their clothes and soft furnishings are in the room and there is nothing to suggest that their occupation of this room is temporary or even recent. (The Claimant) may be struggling financially but she is being helped by charities as well as (the family friend). ... This assessment concludes that (the son’s) developmental needs, including, health, education and emotional and behavioural can be met through universal services. (The Claimant) has identified that she does need to focus on (the son’s) emotional and behavioural development, she has acknowledged that his exposure to (domestic violence) between 2011 and early 2012 has affected his social and emotional development. She needs to engage with the health visiting and multi-agency network to address his distress. (The son) does not like meeting new people, he does not like visitors and mother has said she is not going out. (The Claimant) will have to prioritise this issue by engaging with the Children’s Centre services set up to offer support and activities. This need can be met appropriately in the community within universal service provision such as health visiting and Children Centre, the (social worker) will provide written information on local provision as well as make a referral to the health visiting team on this need. Decision on provision of section 17 support The UKBA have informed us on two separate occasions that mother remains a failed asylum seeker who has no legal basis to be in the UK. It was also confirmed that no application for leave to remain has been lodged to date (5.9.12). Therefore this assessment concludes that mother’s immigration status remains that of a failed asylum seeker, without a current application lodged with the UKBA this means that the local authority is excluded from supporting under s 54 and schedule 3 of the NIAA 2002. Our support would be limited to assisting (the Claimant) with help with cost of return flights to Albania or offering to place (the son) in local authority foster care, she is to continue to make her own arrangements with accommodation. The Claimant is aware that the only way she can regularise her insecure immigration status in the UK is by lodging a fresh application, she can then access s 95 support with accommodation and subsistence from NASS. Practice manager’s comment (The Claimant) has failed in two asylum applications and is currently without any application lodged with the Home Office. I see no information contained in the report that would pose a barrier to (the Claimant) and her child returning to Albania. The son’s care with his mother is good enough and there is nothing about (the Claimant’s) parenting that raises concerns thus the son is not in need of section 17 support from Children’s Social Care. Given that the existing legislation is clear regarding the level of support that may be provided the local authority, following assessment, is closing this case.”

Decision on provision of section 17 support

Practice manager’s comment

[4]By letter dated the 27th September 2012 the Defendant wrote to the Claimant explaining that the application based on the Claimant’s destitution “has been addressed in the assessment in that we conclude that based on your current immigration status the local authority will only help with the cost of return flights to Albania. At the moment your status is that of a failed asylum seeker with no current application lodged with the UKBA to regularise your insecure immigration status. If you have made an application to the UKBA in the meantime then please bring in documentary evidence to the office by Tuesday the 25th September 2012 so that I can amend the assessment to reach a further view on whether Children’s Services can lawfully provide support under section 17 of the Children’s Act.”

[5]I should comment at this stage, for reasons set out later in this judgment, the conclusion that the Defendant was unable to provide support under section 17 was incorrect in law in that by virtue of paragraphs 2 and 3 of Schedule 3 to the Nationality, Immigration & Asylum Act 2002 (“the 2002 Act”), there was no prohibition on the provision of support under section 17 to a child or to the extent necessary to avoid a breach of Convention rights.

[6]On the 28th September 2012 the Claimant attended the UKBA Reporting Centre to make further submissions in support of her asylum claim, as confirmed in the letter from the UKBA of that date. On the 2nd November 2012 further representations were made to the UKBA by other solicitors acting on behalf of the Claimant in support of the asylum claim and asking that it be treated as a fresh claim. No decision has been made on that application, which has not accordingly been accepted as a fresh claim.

[7]On the 1st November 2012 the family friend, who had been providing accommodation for the Claimant and her son, asked her to leave on the 2nd November 2012 because the accommodation would no longer be available. The Claimant and her son then moved temporarily to share a room with a friend but that arrangement could only continue until 12th November.

[8]On the 5th November 2012 the Claimant’s solicitors emailed the Defendant, setting out the position as described above, including reference to the further asylum representations, concluding:

“In view of this information we request that you urgently reconsider your decision regarding (the son’s) section 17 application. The Claimant cannot return to Albania as she fears persecution there. She and her young son are shortly to be made street homeless as the friend who is accommodating them can only do so until the 12th November 2012.”

[9]On the 6th November 2012, with the help of the Red Cross, the Claimant made an application to the UKBA seeking support under section 4 of the 1999 Act on the grounds that she was destitute and that the provision of accommodation was necessary for the purposes of avoiding a breach of her Convention rights.

[10]On the 8th November 2012 the solicitors sent a further email to the Defendant that the Claimant was due to be made homeless on the 12th November and that the son had been “very unwell and is awaiting an operation”. On the same day, the Defendant’s solicitor responded by email:

“As discussed, your client is entitled to NASS support, the local authority are prevented through statutory provisions from (providing) support to such families where this support is available. We understand that your client has made an application for NASS. The Border Agency have an absolute duty to provide emergency accommodation to those that they owe a duty to as is the case here, and whilst they consider their application. We are happy to progress this on her behalf if the British Red Cross are not able to. It will be a matter of referral and acceptance only and we have no power to influence placement. This will be something the British Red Cross will have to take up. We are however unable to provide any support, for reasons we have provided above. We trust this clarifies matters and assures you that judicial review will be a total inappropriate remedy, for the reasons stated above.”

[11]It appears from that email and subsequent emails that the Defendant’s solicitor was of the view that it had no power to provide section 17 support on the ground that the Claimant was an asylum seeker for the purposes of section 95 of the 1999 Act and therefore excluded from section 17 support by section 122 of that Act. As again will appear later in this judgment, that was incorrect.

[12]On the 12th November 2012 the Claimant’s solicitors emailed a letter (dated the 9th November 2012) asking that the Defendant reconsider their decision to refuse support under section 17 of the 1989 Act. The letter explained that the Claimant was only eligible for section 4 support under the 1999 Act and “as such the local authority continues to have a duty to assess (the son)”. The letter pointed out that the Claimant had been asked to leave her accommodation that day and so would imminently be homeless. It set out the background to the case, including the health problems of the son. It enclosed supporting evidence and referred to the decision of the Divisional Court in R (oao VC) v. Newcastle City Council2011 EWHC 2673, to which I refer further below.

[13]That received a response on the same day from the Defendant’s solicitor including the following:

“As discussed, our decision remains that she is entitled to section 95 support. She has made a fresh/submissions application as confirmed in letter dated 28 September 2012 from the Border Agency. We are happy to review our decision only and only if you provide us with written confirmation from the Border Agency confirming that she is ineligible for section 95 support. It could be that they are mistaken even with this confirmation. But as a starting point we need this confirmation. You will also need to in addition to the above provide us with statutory provisions on which you rely on and why she is not entitled to s 95 despite having made fresh submissions. As we stated, we do not need the Border Agency guidance, which will be of very little use, we need a decision from the decision maker, as this could be challengeable. We trust this clarifies our position and we will look forward to hearing from you.”

Later on the same day the Defendant’s solicitor emailed that they had been notified by the Border Agency that the Claimant was eligible for section 95 support and she needs to apply for this. “This reconfirms our position. They have also advised that the British Red Cross can provide emergency accommodation to her and assist in her making the section 95 application. Your client has presented to our client offices with her belongings and has been advised to contact you urgently so that you can refer her to the correct source for assistance/support. Our client will not be providing any support to her.”

[14]On the night of the 12/13th the Claimant and her son were accommodated out of charity by a member of staff from the Project.

[15]On the 13th November 2012 the Claimant contacted the Refugee Council, who confirmed that she could only seek section 4 support but in the light of the email from the Defendant an application was made to the UKBA for emergency accommodation under sections 95 and 98. This was rejected by the UKBA on the same day on the grounds that the “applicant’s further submission claim on 28th September 2012 has been recorded but no decision has been granted.”.

[16]This was reported to the Defendant’s solicitor who responded:

“We never said that she could have emergency section 4 accommodation so we are unclear why you say this, in fact we would advise you that she has been refused section 4. Also more importantly, the British Red Cross ... confirmed today to our client that they were not aware she could make a section 95 application, they also spoke to the Border Agency who confirmed that your client needed to make a s 95 application not s 4. Perhaps you need to get in touch with them. We remain of the view that the support to your client is through section 95 and again we ask that you forward a copy of the Border Agency refusal letter to us as we believe they are mistaken if indeed they make this decision. We are rather disappointed that there is a total misunderstanding of what support she can and cannot access through the Border Agency, from the various advisers she has engaged to pursue her case. Unnecessary time and resource is being wasted by the local authority explaining what she can and cannot access, this is not our remit or role. We trust this clarifies the position of the local authority.”

[17]The Claimant’s solicitor responded that the application had been refused on the ground that she was not entitled to section 95 support and that:

“We believe our client is in fact eligible for section 4 NASS support, however UKBA have incorrectly refused section 4 support.”

The email stated that the Claimant was homeless, that she had been accommodated on a one off basis by a staff member from the Project and that she had nowhere else to stay that night. It concluded pointing out that the Defendant “have a duty to the child as a child in need. We ask you urgently to arrange accommodation and support for this family”. The Claimant’s solicitors emailed a further letter that day to similar effect and setting out the relevant statutory provisions, including the availability of the section 17 powers, and asking that they urgently reconsider their decision not to provide section 17 support to the son.

[18]The Red Cross also emailed the Defendant, confirming that the Claimant was homeless, which received a response from the Defendant:

“Mother will have to stay another night at her friends and we will try tomorrow regarding s 95 support. That is all I can suggest tonight. But we will continue liaising with UKBA on this.”

That was followed by further emails to the Defendant, explaining that the Claimant had nowhere to stay that night and required immediate accommodation. In reply the Defendant emailed:

“I am unable to make a decision regarding support. (The Claimant) will have to approach the out of hours service if she is unable to secure support from within her support network tonight. We intend to continue our efforts with UKBA tomorrow to establish why the family were not provided with the s 95 support that we were informed that (the son) was entitled to.”

[19]That was followed by a further email: “I think that if mother is street homeless tonight, she will have to go to a police station to say she is homeless without any other form of support and they will contact the out of hours team. ... My advice is that mother should continue to seek support from her network of friends and come to our offices in the morning”.

[20]Ultimately the Claimant and her son were accommodated by another member of staff of the Project. That was reported to the Defendant by email on the morning of the 14th November 2012, again pressing the Defendant to take action. The Defendant’s solicitor responded:

“… We understand that your client has arranged to come and see our client today, we will update you as soon as we are able. We also understand that the British Red Cross have been notified by the Border Agency that her s 4 support decision is withdrawn. This is currently being reconsidered.”

[21]The solicitors responded:

“Because our client was facing street homelessness yesterday evening ... the Project Director agreed that (the Claimant) could stay at her home. The Director felt that she was put in a very difficult position but she felt she had no choice as (the Claimant) would otherwise be street homeless. … The Project Director says that she cannot continue to offer accommodation to (the Claimant) and her son as it is well beyond her duties as Project Director of the charity….It is clear that our client and her son are in fact destitute and homeless. You state that the section 4 decision has been withdrawn and is being reconsidered. We refer you to our representations dated the 9th November 2012 setting out the law in this matter. The local authority continue to have a section 17 duty to the family even if UKBA agree to grant section 4. Section 4 is acknowledged as an austere regime which is very unlikely to meet the needs of a child in need. … We would also be grateful if you could confirm your position in respect to section 95 NASS. Do the local authority accept that our client is not eligible for this type of support? We again request that you arrange urgent accommodation and support for our client and her son.”

[22]The Defendant’s solicitor responded by email:

“Our client’s instructions are that the child will no longer be a ‘child in need’ if accommodation and subsistence was met through the provision of s 4. The child has been assessed to have no other needs. If you can provide us with detailed reasons as to what other needs you feel the child has then please do let us have this information so that our client can consider these.”

[23]In their response the Claimant’s solicitors referred back to their representations of the 9th November 2012 why the son was a child in need and why his current needs would not be met by section 4 subsistence support. They referred to the decision in VC. They stated that the Defendant needed to fully assess the allocated section 4 accommodation to ensure that it met the child’s current needs prior to transferring the Claimant and her son to the accommodation and that the Defendant should provide accommodation and support in the interim. It was pointed out that the child had needs beyond basic accommodation and subsistence support, particularly in respect of his ill health and his emotional needs caused by the past domestic difficulties. The letter also raised a concern about dispersal out of London.

[24]At this point on the afternoon of the 14th November, a letter was faxed by the UKBA to the Red Cross with its decision that the Claimant would be offered section 4 support. It said that the accommodation would not be provided in the London area unless there were exceptional circumstances to justify it. It gave 14 days to contact the accommodation booking team to arrange a convenient time to move into the section 4 accommodation. It also explained that the Claimant may be required to share a room in shared accommodation.

[25]The Defendant’s solicitors then responded by email to the Claimant’s solicitor saying that there was no assessed need and that, as the Secretary of State had accepted her under section 4, the Claimant would not therefore be destitute. It also stated that the Defendant was satisfied that the support provided through section 4 was sufficient to meet the accommodation requirements of the mother and child.

[26]The Claimant’s solicitors replied later that afternoon that they understood from speaking to the Red Cross that it would potentially take 2 to 3 weeks before she would be provided with an actual address, following acceptance of the section 4 accommodation offer. They reiterated that the Claimant and her son were homeless and that there was no one in the Albanian community to help her. They requested that the Defendant at least provide her and her son with temporary accommodation whilst she waited for a section 4 address. The Defendant’s solicitor responded that:

“Your client needs to accept s 4 and they will provide accommodation. … Regarding accommodation for your client tonight and until she accesses s 4 support, she can make her own accommodation arrangements as she has done so in the past. When she has lived at the address in (the Defendant’s area) and our client has visited her, … she has been assessed to be settled, her baby had a cot and wardrobe. Until you secure s 4 accommodation she can look to her community contacts and friends for interim accommodation as she has done so in the past. Her resourcefulness in doing this has been assessed. Furthermore her seeking support from her network of the contacts she has will be for a short time only. ... We are convinced her friends/family and community will not turn her away. The arguments you provide around her having nowhere to go to have already been explored and assessed. This is not new information. The assessment is clear of its findings and all has been explored through the assessment process and by an experienced social worker. The local authority is not a stop gap whilst s 4 is processed, we have no agreement or legislative powers to do this. Our client is not persuaded to believe your client has nowhere and all this has been assessed. Your client has a cousin/cousin’s wife to whom she can access support. Further with all the needs you have presented her having as an adult, surely you will want her to be in the company of her friends and community. The local authority will not provide accommodation for reasons it has already provided above and in its assessment.”

[27]I would comment at this stage, as will be clear later in this judgment, that at that time the authority did retain powers under section 17 to provide support and accommodation if the child was assessed to be in need. The only assessment that had been made which has been produced was that in September when the Claimant and her son were accommodated in circumstances which were assessed as sufficient to provide for her needs and those of the child. That accommodation had not been available from the 2nd November 2012, following which the arrangements had initially been made by a friend sharing a room with the Claimant and her son and from the 12th November through the charity of staff at the Project, which had been terminated on the 14th November. There is no evidence of any further assessment of need having been carried out on behalf of the Defendant in that respect.

[28]On the 15th November the Claimant’s solicitors wrote to the UKBA accepting the offer of section 4 support and asking for allocation of accommodation as soon as possible and that this be located in the London area. On the same day the solicitors again requested that the Defendant carry out an assessment of the child’s needs under section 17 and provide accommodation until suitable accommodation was secured. The Defendant’s solicitor responded, refusing the request on the ground that the Claimant had been granted priority accommodation under section 4 so that the Claimant would be accommodated the following day. The email continued “We suggest your client stays with her friend tonight for one more night and she will be accommodated tomorrow through section 4. Should your client require accommodation for one night tonight then we must warn you that the only available vacancy we have is in Blackburn. Your client will be required to travel to Blackburn tonight and return to be picked up at a venue of her choice in London ... please confirm by 3.30 the latest regarding accommodation arrangements tonight so that our client can provide a travel warrant to confirm her booking in Blackburn.”

[29]In the event later that evening accommodation was made available under section 4 in Barking. On the following day, the Claimant’s solicitors emailed a letter to the UKBA and to the Defendant’s solicitors as to the inadequacy of the accommodation that had been provided and seeking support from the Defendant. The email enclosed a witness statement made 16th November 2012 from Penny Brownbridge, a trainee solicitor with the Claimant’s solicitors. It explained that the accommodation that had been provided was in a bedroom shared with six other people, four women and two children, with the Claimant and her son sharing a double bed. It described how the child had been confused that night and had been left screaming and crying. The son remained unsettled, lying on the floor kicking and crying.

[30]Proceedings for judicial review were issued the same day and on the 23rd November 2012 Philip Mott QC sitting as Deputy High Court Judge, made an interim order that the Defendant provide the Claimant and her son with suitable accommodation and support forthwith, pending the determination of the Claimant’s application for permission to apply for judicial review or further order. Permission was granted to apply for judicial review on the 22nd January 2013. The Defendant has continued to provide accommodation and support for the Claimant and her son.

Legal framework

[31]By section 17 of the 1989 Act:

“(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 I 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. ... (6) The services provided by a local authority in the exercise of functions confirmed on them by this section may include providing accommodation and giving assistance in kind or ... in cash. ... (10) For the purposes of this part a child shall be taken to be in need if (a) he is unlikely to achieve or maintain or 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 ....”

[32]By Schedule 2 Paragraph 1 to the 1989 Act:

“(1) Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.”

[33]Paragraph 8 of Schedule 2 provides for a wide range of services which can be made available with respect to children in need.

[34]So far as relevant, section 4 of the 1999 Act provides:

“... (2) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if (a) he was (but is no longer) an asylum-seeker; and (b) his claim for asylum was rejected. (3) The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a dependant of a person for whom facilities may be provided under sub-section 2.”

[35]By Regulation 3 of the Immigration & Asylum (Provision of Accommodation to Failed Asylum Seekers) Regulations 2005:

“(1) ... the criteria to be used in determining the matters referred to in paragraphs (a) and (b) of section 4(5) of the 1999 Act ... are (a) that he appears to the Secretary of State to be destitute; and (b) that one or more of the conditions set out in paragraph 2 are satisfied in relation to him. (2) Those conditions are that ... (e) The provision of accommodation is necessary for the purpose of avoiding a breach of a person’s Convention rights within the meaning of the Human Rights Act 1998.”

By paragraph 2 of the 2005 Regulations:

“ “Destitute” is to be construed in accordance with section 95(3) of the 1999 Act.”

[36]By section 95 of the 1999 Act:

“(1) The Secretary of State may provide or arrange for the provision of support for (a) asylum-seekers; or (b) dependants of asylum-seekers who appear to the Secretary of State to be destitute or to be likely to become destitute within such period as may be prescribed. ... (3) For the purposes of this section 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.”

[37]By section 94(1):

“(1) Asylum-seeker means a person who is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but which has not been determined; ... (5) If an asylum-seeker’s household includes a child who is under 18 and a dependant of his, he is to be treated for the purposes of this part as continuing to be an asylum-seeker while (a) the child is under 18; and (b) he and the child remain in the United Kingdom.”

[38]I should comment at this point that the effect of section 94 is that where there is a claim for asylum which has been “recorded” by the Secretary of State but not determined, and the applicant’s household includes a child under 18, then even if the application is in due course refused, he continues to be an asylum-seeker while the child is under 18 and he and the child remain in the United Kingdom. However in the present case, it is accepted by both parties that, while further representations were made by and on behalf of the Claimant in respect of her asylum claim, they had not been “recorded” by the Secretary of State for the purpose of these provisions.

[39]Section 96 provides ways in which support can be provided under section 95. Section 122 provides in respect of an application for support under section 95 where the person’s household includes a dependant under age 18 including:

“(3) If it appears to the Secretary of State that adequate accommodation is not being provided for the child, he must exercise his powers under section 95 by offering, and if his offer is accepted, by providing or arranging for the provision of adequate accommodation for the child as part of the eligible person’s household”

Section 122(4) makes similar provision in respect of essential living needs of the child. By section 122(5):

“No local authority may provide assistance under any of the child welfare provisions with respect to a dependant under the age of 18 or any member of the family at any time when (a) the Secretary of State is complying with this section in relation to him; or (b) there are reasonable grounds for believing that: (i) the person concerned is a person for whom support may be provided under section 95; and (ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95; ...” (i) the person concerned is a person for whom support may be provided under section 95; and (ii) the Secretary of State would be required to comply with this section if that person had made an application under section 95; ...”

[40]By the Asylum Support Regulations 2000 (“the 2000 Regulations”) regulation 6(4) in deciding whether a person is destitute for the purposes of section 95 the Secretary of State “must take into account … (b) any other support which is available to the principal or any dependant of his or might reasonably be expected to be so available in that period ….”

[41]I have referred above to the exclusions under section 54 of and Schedule3 to the 2002 Act so far as section 17 of the 1989 Act is concerned and that by paragraph 2(1)(b) that exclusion does not prevent the provision of support or assistance to a child or by paragraph 3 does not prevent the exercise of a power or performance of a duty if and to the extent that its exercise or performance is necessary for the purposes of avoiding a breach of a person’s Convention rights.

[42]By section 55 of the Borders, Citizenship and Immigration Act 2009:

“55(1) The Secretary of State must make arrangements for ensuring that (a) the functions mentioned in sub-section 2 are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom ... (2) The functions referred to in sub-section (1) are: (a) any function of the Secretary of State in relation to immigration, asylum or nationality.”

[43]The Secretary of State has issued guidance in the “Framework for the Assessment of Children In Need and their Families” (“the Framework”) under the 1989 Act. The Framework provides for assessment in a comprehensive fashion relating to the developmental needs of children, the capacities of parents to respond appropriately to those needs and the impact of wider family and environmental factors on parenting capacity and children.

[44]In R (G) v Barnet LBC2004 2 AC 208 the House of Lords considered the nature of the duty to provide support to children under section 17 of the 1989 Act. While in that case the children had been assessed as being in need, the speeches also considered the duty of the authority so far as a needs assessment was concerned. At paragraph 32 Lord Nicholls said:

“The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child’s need for those services. It is implicit in section 17(1) that the local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need. Failure to carry out this duty may attract a mandatory order in an appropriate case, as occurred in R (AB and SB) v Nottinghamshire County Council2001 4 CCLR 295. Richards J ordered a local authority to carry out a full assessment of a child’s needs in accordance with the guidance given by the Secretary of State in (the Framework).”

[45]At paragraph 64 Lord Steyn agreed with that opinion. At paragraph 65 Lord Hope adopted Lord Nicholls’ description of the relevant provisions and at paragraph 106 Lord Millett agreed with the opinion of Lord Hope. At paragraph 117 Lord Scott said:

“Part 1 of Schedule 2 to the Act, as section 17(2) has led one to expect, imposes specific duties and confers specific powers on local authorities. Paragraph 1(1) says that “Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area”

This obligation is not expressed in absolute terms. The local authority will have discharged its mandatory duty if it has taken “reasonable steps”. Having identified a child “in need” it will often be necessary for the local authority to assess the actual needs of the child. ...” Lord Scott then referred to paragraph 3 of the Schedule and concluded:

“It is, I think, implicit in this provision that the local authority will assess the actual needs of a child in need whenever it appears necessary to do so.” “Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area”

[46]While in Barnet the House of Lords concluded that there was no specific duty, as opposed to power, to provide services for a child, it is apparent from the speeches that the House of Lords concluded that there was a duty to take reasonable steps to assess the needs of a particular child in an appropriate case.

[47]The relationship between section 17 of the 1989 Act and section 4 of the 1999 Act was considered by the Divisional Court in R (oao VC) v. Newcastle City Council

2012 PTSR 546

. In that case the children had been assessed as in need and the authority had been providing support and accommodation under section 17. The authority sought to discontinue that support, relying upon the power of the Secretary of State to provide facilities for accommodation under section 4 of the 1999 Act.

[48]In paragraph 59 Lord Justice Munby, giving the judgment of the court, referred to the speech of Lord Hoffman in R (Westminster City Council) v. NASS

2002 1 WLR 2956

where at paragraph 38 he explained that the power under 95 is “residual and cannot be exercised if the asylum seeker is entitled to accommodation under some other provision. In such a case he or she is deemed not to be destitute.” Having referred to the 2000 Regulations and its requirement that the Secretary of State take into account any other support which is available to the applicant, Lord Hoffman added at paragraph 41:

“The clear purpose of the 1999 Act was to take away an area of responsibility from the local authorities and give it to the Secretary of State. It did not intend to create overlapping responsibilities. Westminster complains that Parliament should have taken away the whole of the additional burden which fell upon the local authorities as a result of the 1996 Act. It should not have confined itself to the able bodied destitute. But it seems to me inescapable that this is what the new section 21(1A) of the 1948 Act has done. As Simon Brown LJ said in the Court of Appeal ... what was the point of section 21(1A) if not to draw the line between the responsibility of the local authorities and those of the Secretary of State?”

[49]At paragraph 42 Lord Justice Munby noted that by virtue of paragraph 2 of the 2005 Regulations the determination of destitution for the purposes of section 4 of the 1999 Act required the same approach under Regulation 6 of the 2000 Regulations.

[50]Having reviewed the authorities, at paragraph 70

Lord Justice Munby identified the question for determination as:

“…which public authority must take responsibility for providing accommodation and support to children in need within migrant families who are not entitled to support under section 95 of the 1999 Act.”

[51]At paragraph 86

Lord Justice Munby continued:

“86. There are in my judgment a number of what Ms Rhee calls key legislative indicators which together points to the conclusion to which I have come, that, in contrast to section 17, section 4 is a residuary power and that the mere fact that support is or may be available under section 4 does not of itself exonerate a local authority of what would otherwise be its powers and duties under section 17. 87. First, there is the contrast not merely between the level of support available under section 17 and section 4 but also between the very different purposes of the two statutory schemes. Ms Rhee accurately describes section 4 as providing “an austere regime, effectively of a last resort, which is made available to a failed asylum-seekers as to provide a minimum level of humanitarian support”

. Section 17 in contrast is capable of providing a significantly more advantageous source of support, its purpose being to promote the welfare and best interests of children in need. As she says, section 4 support is intended to provide the minimum support necessary to avoid breach of a person’s Convention rights; section 17 support is to be provided by reference to the assessed needs of the child. In short, as she puts it, section 4 and section 17 establish two discrete regimes established for different purposes. 88. Second, there is the striking fact that, in contrast to the position under section 95, Parliament has not excluded families who are or may be eligible for support under section 4 from local authority support under section 17. 89. Third, there is the careful exclusion of children from the ambit of the provisions of Schedule 3 to the 2002 Act removing various asylum seekers or failed asylum seekers from eligibility for support under section 17. As Ms Rhee says, this is of central importance, being a clear legislative indication that even children of failed asylum seekers should be entitled to access section 17 support. Accordingly, as she points out, any exclusion from section 17 support for dependant children of failed asylum seekers must, if it exists, be found elsewhere. Yet, as we have seen, in contrast to the position of dependant children of asylum seekers, there is no such exclusion in place in respect of dependant children of failed asylum seekers. If a child is being provided with support under section 95, the legislative scheme gives priority to the provision of section 95 support over section 17 support: section 122(3) and (5). Not so in relation to support under section 4. So, it is be inferred that the legislative intent is that where section 4 and section 17 are both theoretically engaged, the more advantageous support regime under section 17 is to apply. 90. This conclusion is in entirely consistent with, even if it is not mandated by, the case law to which I have referred. 91. It is convenient first to consider the situation where a failed asylum seeker, who is therefore not eligible for section 95 support, seeks support under section 17 on the ground that her child is “in need”. The local authority has a duty to assess the child. The result of that assessment is either a determination the child is, indeed, “in need” or that he is not. In the latter event, absent her success for judicial review, cadit quastio, If on the other hand the child is assessed as being “in need”, then the local authority must decide whether or not to provide the assessed services in support. Can it decline to do so on the basis that the section 4 support is or may be available? Consistent with what I have already said, it will not be able to justify the non provision of assessed services and support under section 17 on the grounds that section 4 support is available unless it can be shown first that the Secretary of State is actually able and willing (or if not willing can be compelled) to provide section 4 support and second that section 4 support will suffice to meet the child’s assessed needs. Given the residual nature of the Secretary of State’s functions under section 4, a local authority may well have difficulty in establishing the first. Given the very significant difference between what is provided under section 4 and what is very likely to be assessed is required for the purposes of section 17, the local authority is unlikely to be able to establish the second. 92. In practical terms, whatever the theoretical possibilities, the local authority faced with a child who is assessed as being “in need” is, I suspect, very unlikely in the general run of such cases to be able to justify non-intervention by reliance upon section 4. 93. I turn to the case where, as here, the local authority has not merely assessed the child as being “in need” but is actually providing services and support on that basis under section 17. Can it decide to discontinue such provision, on the basis that section 4 support is or may be available? In principle, the answer must be the same. It can do so if it can be shown, first, that the Secretary of State is actually able and willing (or if not willing can be compelled) to provide section 4 support and, second, that section 4 support will suffice to meet the child’s assessed needs. The task facing the local authority here is, if anything, even more difficult than in the previous situation, for the Secretary of State, as we have seen, cannot provide support under section 4 unless the family is “destitute” and it is difficult to envisage that being so if the local authority is actually providing services and support under section 17. 94. Again, in practical terms, and whatever the theoretical possibilities, a local authority supporting a child who is assessed as being “in need” is very unlikely in the general run of such cases to be able to justify the discontinuance of such support by reliance upon section 4.”

[52]I also note the decision of Sir Michael Harrison in R (oao AW (Kenya)) v. SSHD

2006 EWHC 3147

(Admin), where the Court held that, notwithstanding the broad interpretation of facilities for accommodation, the Secretary of State was not able to provide clothing under section 4 as part of the provision of facilities for accommodation.

[53]I should also refer to the witness statement of Simon Bentley, an Assistant Director with the UKBA, who deals with the accommodation that was provided under section 4 to the Claimant on the 15th November 2012 and explains that in practice the accommodation provided by the UKBA pursuant to section 4 and section 95 is to a similar standard.

Submissions

[54]Mr Azeem Suterwalla, who appears for the Claimant, accepts that the facts in the present case are different from those considered in VC in that there was no assessment that the Claimant’s son was in need and that in September 2012 there had been an initial assessment that he was not in need. He also accepts that there has been no challenge to that assessment as being unlawful. However he submits that the assessment in September 2012 crucially relied upon the finding as to the settled accommodation that was then provided for the Claimant and her son, which enabled provision to be secured for the son’s other needs including those relating to his emotional and behavioural requirements. Moreover the conclusion in that assessment was based on a mistaken view of the law that by virtue of the 2002 Act, the Defendant’s powers were limited to assisting with travel arrangements for the Claimant to return to Albania.

[55]Next he referred to the letter from the Claimant’s solicitors dated 5th November 2012 which set out the changed position as to the Claimant’s accommodation position and that they would become homeless on the 12th November 2012 as well as the fresh representations made to the UKBA. Mr Suterwalla submits that at that point the Defendant was plainly under a duty to reassess the needs of the child in the light of the impending homelessness, having regard to the overall findings of the original assessment.

[56]Moreover, the reasons given for not carrying out an assessment were plainly wrong in law and/or on the facts. The Claimant did not fall within the scope of section 95 and the Defendant retained its power under section 17 to provide support and accommodation. Effectively that position persisted right up until the offer under section 4 of accommodation on the afternoon of the 14th November 2012.

[57]Mr Suterwallasubmits that as a matter of record up to 13th November 2012 the Defendant did not purport to rely on the UKBA’s power under section 4 of the 1990 Act, asserting that there was a duty on the UKBA to provide accommodation under section 95. There has been no form of reassessment or in the circumstances lawful decision made by the Defendant whether to carry out a reassessment of the child’s needs given the fundamental misdirection in law and on the facts.

[58]Moreover, having regard to the residual nature of the section 4 power, as explained by Lord Hoffman in the Westminstercase and Lord Justice Munby in VC and the absence of any commitment on the part of the Secretary of State to provide accommodation under section 4, even if the Defendant had relied upon the exercise of that power over this period, it would have acted unlawfully.

[59]The emergency accommodation provided out of goodwill by staff of the Project on the nights of the 12th, 13th and the 14th November could not properly be relied upon as obviating the need for reassessment of the child’s needs, at least without an initial assessment as to what was proposed and its implications.

[60]Further, Mr Suterwalla submits that, following the offer under section 4 on 14th November, there remained the duty to assess the needs of the child in the interim before that accommodation was made available. Even when it was made available on the 15th November, the duty remained on the Defendant to assess whether the accommodation provided was suitable to meet the needs of the child. Having regard to the information that was supplied to the Defendant in the witness statement of Penny Brownbridge on the 16th November 2011, it was plain that the accommodation provided was not adequate to provide for the needs of the child, at least without a further assessment, having regard to what was there described and the other surrounding circumstances. Thus he submits that the Defendant acted unlawfully in persisting in its failure to carry out the reassessment of the child’s needs and the Claimant should be entitled to relief.

[61]In respect of relief, Mr Suterwalla submits that the scope of support and accommodation under section 17 is potentially wider and more comprehensive than the provision of facilities for accommodation under section 4 and thus in principle the Court should order the Defendant to comply with its duty under the 1989 Act to take reasonable steps to identify the needs of the child, which would require reassessment. If the child was entitled to that reassessment at the time of the unlawfulness, he should not be disentitled by the residual provision of support under section 4 of the 1999 Act, particularly given the absence of any relevant assessment as to the child’s needs in the new circumstances. The September report clearly set out a range of potential needs which made the child vulnerable. It is not possible to conclude that, if such an assessment is carried out, the conclusion would inevitably be that there was no need that was not fully addressed by the provision of the section 4 accommodation.

[62]Mr Kelvin Rutledge QC, who appears for the Defendant, submits that in this case the Defendant had discharged its duty to take reasonable steps to assess the needs of the child in September 2012. That assessment had unequivocally concluded that there was no need. There had been no challenge to the assessment, which was on any view thorough and fully complied with the Framework.

[63]In that respect the case is to be distinguished from the position considered in VC, where the children had been assessed as being in need. As Lord Justice Munby pointed out, in the absence of a finding of need there was no case to answer. The comments in the assessment report about the Claimant’s immigration status did not affect its core findings that there were no concerns regarding the Claimant’s ability to respond to the child’s needs or that “the (child’s) care with his mother is good enough and there is nothing about the (Claimant’s) parenting that raises concerns thus the child is not in need of s 17 support from Children’s Social Care”.

[64]Contrary to the assertions made on behalf of the Claimant, she did not in fact become homeless at any point. Accommodation was provided for her and her child up to and including the 15th November, following which she was accommodated under section 4 of the 1999 Act. It is established in VC that the Defendant was entitled to rely upon the actual provision of accommodation by the Secretary of State under section 4 of the 1999 Act and in principle that should include the prospect that it would be provided.

[65]It is to be borne in mind that the Claimant elected to apply for that support on 6th November 2012, an application which was accepted by the Secretary of State on 14th November with the offer of facilities for accommodation. That decision must have taken into account the availability of any other potential support as part of the consideration of destitution. That was again to be distinguished from the facts in VC, where the Secretary of State had in the relevant case refused to provide section 4 support. It cannot reasonably be said that that decision by the Secretary of State is to be ignored or is irrelevant to the question of need.

[66]Importantly, it was only the position as to accommodation which had changed from the assessment in September. That assessment had expressly dealt with the other matters raised on behalf of the Claimant by her solicitors in the email of the 14th November 2012, such as the health of the child and the fact that the child was emotionally vulnerable as a result of the domestic violence. The concern over dispersal under section 4 did not in the event arise because accommodation was provided under section 4 in Barking and without any delay, just as the Claimant had sought in her application.

[67]The duty on the Defendant was only to take steps that were reasonable to identify children in need in its area including the Claimant’s son. That was very much for the Defendant to decide, particularly having regard to the fact that it had carried out a comprehensive assessment some two months earlier which had firmly concluded that there was no need. In the circumstances set out above the Claimant continued to have accommodation, albeit on a temporary basis, and had the expectation of the provision of more secure accommodation under section 4. Any initiation of a formal reassessment in these circumstances would have been disproportionate and an unreasonable use of scarce resource, particularly having regard to the imminence of provision under section 4.

[68]That there was a degree of muddle initially in respect of the immigration status of the Claimant had no bearing upon that particular issue or any requirement for reassessment under the Act. In any event, even if it were held, contrary to the Defendant’s submissions, that there was any error in that respect, any order for assessment relating the early part of November 2012 would be academic and inappropriate. On any view there was no ground for reassessment of need following the actual provision of accommodation under section 4. In terms of the provision of accommodation there was no identified difference between accommodation provided under s 17 of the 1989 Act and section 4 of the 1999 Act. As explained above, that was the only relevant change as to any need to be provided so far as concerned the September needs assessment.

[69]In these circumstances there is no basis for ordering a needs assessment based on any failing earlier in November in that the position had been effectively overtaken by the decision of the Secretary of State to provide facilities for accommodation under section 4. Compliance with the interim Court order cannot be held to have affected that position. There is no reason to think that the Secretary of State would withdraw that support at this stage and she has not suggested that it would be. Accordingly in any event relief should be refused as a matter of discretion and the application dismissed.

Consideration

[70]The duty owed by the Defendant to the Claimant’s son was “to take reasonable steps to identify the extent which ...” the child was a child in need. Thus the fundamental question is whether the Defendant took reasonable steps in that respect from the time the matter was drawn to its attention by the Claimant’s solicitors in their email dated 5th November 2012. It is clear from the email exchanges that the Defendant’s position up to and including the 13th November 2012 was that this was a case where the Claimant was entitled to support and accommodation under section 95 of the 1999 Act and that as a result by section 122 the Defendant had no power to provide support and accommodation under section 17 of the 1989 Act.

[71]Although that is described as a result of a “muddle” by Mr Rutledge, in my judgment it was at the heart of the Defendant’s decision as to what would be reasonable at that stage to assess the needs of the child. If the Defendant’s solicitor had been correct in her understanding of the law and the facts, the Defendant would have been precluded from exercising its section 17 powers and so there would have been little point in carrying out any reassessment since it would have been likely to lead nowhere. The solicitor was plainly convinced that she was correct and there is no indication that the Defendant looked at it on any other basis over that period.

[72]The Defendant’s solicitor is accepted by both parties to have been wrong, just as had been clearly explained in the letters and emails from the Claimant’s solicitors. Far from being excluded from exercise of its section 17 powers, the Defendant continued to be under a positive duty to take reasonable steps to assess the needs of the Claimant’s child, once the change in circumstances had been brought to its attention on 5th November 2012. However, that error on the part of the Defendant will only be material if, in the circumstances, reasonable steps would have included a re-assessment or other similar steps to have been taken.

[73]I accept that, as Mr Rutledge submits, the starting point has to be the assessment on behalf of the Defendant in September 2012, which concluded that the Claimant’s son was not a child in need for the purposes of section 17 of the 1989 Act. However, in that respect regard should be had to its overall findings, including those relating to the health, emotional and behavioural development of the child and the extent to which the family’s accommodation at that time helped achieve “some sense of stability” and support in that respect. Moreover it is of note that the justification for the conclusion that there was no need included the misunderstanding that the Defendant did not have power to provide support and accommodation under section 17 of the 1990 Act because of the Claimant’s immigration status.

[74]In those circumstances, in the light of the letter of the 5th November 2012 and the repeated requests by the Claimant’s solicitors for reassessment given the Claimant’s impending or actual homelessness, the question is whether the Defendant’s duty to take reasonable steps to identify the extent of the child’s need was compatible with a refusal to carry out any sort of reassessment or update given the initial assessment in September 2012. In this respect it is important to focus on the question of assessment rather than what actually occurred. As Lord Nicholls explained in Barnet, it is the assessment which provides the basis for the decision as to what, if any, support is to be provided.

[75]It does not seem to me that the fact that on each night following their becoming homeless on 12th November the family were eventually out of charity provided with a bed for the night by various members of the Project staff exonerates the Defendant from any duty to take reasonable steps to assess or reassess the child’s needs – especially when the matter had been drawn to its attention, not merely as to the provision of accommodation but also its nature and the other relevant circumstances affecting the child’s needs.

[76]From 5th November 2012 the Defendant had been repeatedly told that the Claimant would become homeless from 12th November. There was no alternative accommodation that had been identified. From 2nd until 12th November the Claimant and her child had been sharing a room with a friend on a temporary basis. So far as appears on the documents, the Defendant did nothing to reassess the situation either as to the potential need for accommodation or its adequacy or the effect on the needs of the child if it was not provided. The reason that nothing was done is equally clear in that it was the firm and strongly expressed (but incorrect) view of the Defendant’s solicitor that the Secretary of State was under a duty to provide that accommodation and that the Defendant had no power to do so.

[77]Whatever the reason, was a refusal by the Defendant to carry out any form of reassessment of the child’s needs in these changed circumstances consistent with taking reasonable steps on its part to identify the extent to which the child was in fact in need at that time? In my judgment it was not. At the very least, the Defendant should have taken steps to assess what accommodation would or could be secured and to what extent it would provide an adequate accommodation base in the context of the conclusions as to need in the September assessment.

[78]Up until the 13 November, it does not appear that the Defendant did in fact rely upon the putative exercise of the Secretary of State’s power under section 4 of the 1999 Act. However, having regard to VC, in the absence of any assurance that such accommodation would be provided, I do not consider that that would in any event have been a relevant factor on which the Defendant could rely in determining what was reasonable to assess this child’s needs in those changed circumstances. In the light of impending or actual homelessness, in my judgment it would not be reasonable for the Defendant to have taken a “wait and see” approach in that respect. It was in my judgment highly material that in the light of VC the Secretary of State would be expected to approach her discretion to apply section 4 on a residual basis in the absence of provision from other sources and in particular under section 17 of the 1989 Act.

[79]In this respect it is not necessary for the Court to determine what would have been the outcome of such an assessment, or thereafter whether as a result the Defendant would or would not have exercised its power to provide support and accommodation under section 17. In the absence of a lawful decision by the Defendant to exercise its discretion in this respect at that stage, in my judgment it is sufficient that it is not possible to rule out an assessment that this was a child in need of support and accommodation under section 17 and that in the light of that assessment the Defendant would have provided such support. Certainly the emails from the Defendant’s solicitors indicated that she considered that the UKBA should be providing support under section 95, which would imply a finding of apparent destitution.

[80]Once the Secretary of State offered to provide facilities for accommodation under section 4 on the 13th November 2012, that was in my judgment a relevant consideration in determining what would constitute reasonable steps to identify the child’s needs by way of reassessment. However it remained for the Defendant to assess any continuing needs of the child in respect of the period before the accommodation was actually provided. At the outset that period would appear to have been potentially of some length, although in the event it only continued to 15th November, when the accommodation was in fact provided. There is nothing to indicate that the Defendant took any steps to assess the child’s needs over this period, in effect leaving it to the Claimant’s own resourcefulness and the charity of others to secure accommodation, wherever and whatever that might be.

[81]Thereafter on the 16th November 2012 the Defendant was provided with the witness statement of Penny Brownbridge, which clearly indicated that the accommodation which had been provided was potentially not such as to meet the needs of the child. While proceedings were issued on the same day, the Defendant resisted any request for reassessment in that respect. In my judgment in the particular circumstances of this case, notwithstanding the provision of accommodation by the Secretary of State, the Defendant continued to have a duty to take reasonable steps to assess whether that accommodation in fact met the needs of this child, which the evidence provided to it suggested was not the case. It does not appear to have taken any steps to address that question until ordered to provide suitable accommodation and support on an interim basis by the Court.

[82]In my judgment for all the above reasons the Defendant acted unlawfully in failing to take steps to reassess the extent to which the Claimant’s child was in need in the period following 5th November 2012 up until the 16th November 2012, when the proceedings were issued.

[83]I accordingly turn to the question of relief and discretion. As I have indicated earlier in this judgment, given the mistaken view of fact and law which prevailed until the 13th November, the Defendant did not carry out any relevant reassessment of the extent to which the Claimant’s son was in need over that period. If it had carried out an initial assessment in that respect, in my judgment in the light of their imminent homelessness on the 12th November 2012, there is a real prospect that the Defendant would have concluded that there was a need for the purposes of section 17. If it identified a need, there was equally a real prospect that the Defendant would have acted on that assessment by providing support and accommodation. It would not have been acceptable to leave the family at risk of homelessness subject to ad hoc provision of shelter that might be found elsewhere in the community.

[84]For this purpose the Defendant could not at that time rely upon the possible exercise of the Secretary of State’s residual power under section 4. In any event the powers of the Defendant to provide support and accommodation are more extensive than those available to the Secretary of State under section 4. In my judgment there was real prejudice to the Claimant and her child through the Defendant’s failure to take reasonable steps to reassess the child’s needs.

[85]I recognise that, as Mr Rutledge points out, thereafter the Secretary of State in fact provided accommodation under section 4. On the evidence before the Court at least before the interim order of the court on 23rd November that accommodation was potentially inadequate to meet the needs of the child. Since that time the Defendant has provided support and accommodation. I note that on 7th December and 14th December 2012 the Defendant said that it would be updating its assessment of the child but I was told that this has not been done in the light of the continuing proceedings.

[86]Mr Bentley in his witness statement dated 14th March 2013 explains the circumstances in which the accommodation was provided on 15th November and that the UKBA “is making enquiries” about the matters detailed in the Claimant’s witness statement. It is of note that a substantial part of those matters had been set out in the witness statement of Penny Brownbridge which had been served on the UKBA on 16th November 2012. Mr Bentley states in paragraph 5 that the intention was “to identify more suitable longer term accommodation (known as “dispersal property”), but she left the property within 3 days before this could be done”. In fact according to the witness statement of the Claimant the Claimant moved into other accommodation following the interim order on 23rd November 2012. That apart, Mr Bentley does not give any indication as to what, if anything, would be proposed by way of the provision of facilities for accommodation, including for example whether the “dispersal property” if that was still the intention would be in the local area or not.

[87]In these circumstances the Court is left with a situation where there does not appear to have been any up to date assessment of this child’s needs and no clear evidence as to the proposals for his accommodation once the interim order is ended. As I have said, in my judgment there was a failure to make a further assessment of the child’s needs in November. I am not persuaded that there is anything in the events that have occurred since that makes it unreasonable for the child’s needs to be reassessed or otherwise to make it academic or irrelevant that there should be that assessment. In my judgment it is just that the Defendant should make an up to date assessment of the child’s needs in the changed circumstances. I should make it clear that the assessment should not be influenced by the effect of the interim order as such and that it can take into account the willingness or otherwise of the Secretary of State to provide accommodation under section 4, as well as the nature and location of the accommodation that is proposed. I would also be inclined to the view that the interim order for accommodation and support by the Defendant should continue until that reassessment had been completed.

[88]For the above reasons in my judgment, the Defendant should be ordered to carry out a reassessment of the needs of the Claimant’s child for the purposes of section 17 of the 1989 Act. I will hear submissions as to the form of the order and any other relief. To this extent, accordingly, the claim for judicial review is allowed.