C, T, M & U, R (On the Application Of) v London Borough of Southwark [2014] EWHC 3983 (Admin)

[2014] EWHC 3983 (Admin)Case No CO/13715/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 November 2014
Before
BOBBIE CHEEMA Q.C.Sitting as a Deputy High Court Judge
THE QUEENon the application of
Between
C, T, M & UClaimantLONDON BOROUGH OF SOUTHWARKDefendant
James Presland (instructed by Shelter Legal Services) for ClaimantsSian Davies (instructed by London Borough of Southwark) for DefendantHearing Hearing date: 19 th November 2014
JudgmentBobbie Cheema Q.C.:Introduction
[1]This claim for judicial review is brought with the permission of Robin Purchas Q.C. granted at a permission hearing on 14th February 2014. The Claimants are Nigerian nationals. The first Claimant is an over-stayer. She is the mother of the second, third and fourth Claimants, all of whom (together with a baby, E born in October 2013) are dependent children born in the United Kingdom. At the time the claim was issued the Claimants were all awaiting the resolution of the first Claimant’s immigration application for leave to remain on humanitarian grounds sent by letter on 26th June 2012 and acknowledged by the Secretary of State for the Home Department on 7th December 2012. That application has since been refused by the Secretary of State and they now await the outcome of an appeal which The First Tier Tribunal is due to hear on 3rd February 2015.[2]The court has ordered that the minor Claimants have the protection of s.39 Children and Young Persons Act 1933 and the Claimants will be referred to as C, T, M and U to protect the children’s anonymity.[3]The claim challenges the lawfulness of the type of accommodation and level of support provided to the family by the Defendant, a local authority in London, pursuant to s.17 Children Act 1989 and the Human Rights Act 1989.[4]In their amended claim as set out in their Supplementary Grounds (further amended in light of subsequent developments) and argued at the hearing the Claimants seek the following relief: i) An order quashing the Defendant’s assessments of the needs of the second, third and fourth Claimants as children in need carried out on 21st May 2012, 4th September 2012, 21st January 2013 and 20th February 2014 and a declaration that the financial support provided by the Defendant has at all material times been unlawful and has discriminated against them by reason of their mother’s (the first Claimant’s) immigration status. ii) A declaration that the Defendant’s proposal that the family should be accommodated outside the area where they had an established family and private life was unlawful in the absence of an assessment of its impact on the children. iii) An order quashing the Defendant’s decision not to continue to support the Claimants’ travel arrangements during the school holidays. iv) A declaration that the bed and breakfast accommodation provided to the family from June 2012 to January 2013 was unlawful for all or part of that period. v) A mandatory order requiring the Defendant to undertake a fresh assessment of the Claimants’ proper needs within 21 days and to ensure adequate support which meets (but is not restricted to) their essential living needs, their needs for clothing and shoes and their necessary domestic travel arrangements. This to include an assessment of the first Claimant (and her partner F, who is also the father of the remaining Claimants) in accordance with the Human Rights Act 1989. vi) A direction for the assessment of damages for breach of Convention rights as a result of the Defendant’s failures as found.

Factual Background

[5]The first Claimant first entered the United Kingdom in April 2003 on a visitor’s visa valid for six months. She then obtained a two year visa. Subsequently she remained in the UK unknown to the authorities, in breach of immigration controls. She is now the mother of four children aged 10, 6, 5 and 1. The first Claimant and her partner F (who is similarly present in the UK in breach of immigration rules), have no recourse to public funds by reason of their immigration status and the effect of s.54 and Schedule 3 to the Nationality, Immigration and Asylum Act 2002. However support may be provided to them to the extent necessary to prevent a breach of Convention rights. There is however no restriction on the provision of support to their dependent children.[6]It is necessary to set out the history of support sought and provided between the Claimants and the Defendant in a little detail. The family lived together in a flat in Fenham Road, London SE15 until late 2011 or early 2012, when F left. While they were together he had supported them although it is not clear how he did so. He spent a period in immigration detention but was then released. He did not immediately return to live with his family. The first Claimant later told a social worker that she had asked him to leave because they were arguing and it was affecting their children. The Claimants faced eviction due to rent arrears and the prospect of imminent destitution so the first Claimant approached the Defendant’s Children’s Services on 21st May 2012.[7]An assessment of the children’s needs was begun that day. It is a thorough and detailed piece of work (hereafter ‘1st Assessment’) which gathered information including from the family’s general practitioner as well as the children’s Child Health Books. A search was done for any referral to the Children Services department or Southwark Integrated Child Support Service ICSS/Education Welfare Service. The children had some health issues eg they suffered with periodic eczema and asthma. Their mother also had some moderate health difficulties. The assessment summarises information under the following further topics: i) Education information – including confirmation that the children had been at nursery and school and no concerns had been expressed about their attendance, punctuality, appearance, interaction, progress or behaviour. ii) Identity, family and social relationships – the family were very active members of a Nigerian Catholic Community at a church in Peckham, kept in contact with their Nigerian roots, were known to voluntary organisations and received financial support from Southwark Asylum Seekers Day Centre and Kids Company (by way of £30 Tesco food vouchers). The family had an extensive support network of friends. F saw his children at least twice a week. iii) Social presentation and self care skills – all three children were described as happy and confident. They were well-behaved on an assessment visit, ate dinner together at the table and were seen playing in the flat and also in an external play area. iv) Wishes and feelings of the children – the eldest child said she wanted her family to have their own place to live and to be able to continue going to her school v) Parenting Capacity – There were no signs of neglect. The first Claimant said she was shrewd with the Kid’s Company vouchers, was able to access food banks and obtained free hot food and occasional take away food parcels from the Day Centre. She provided stimulation to the children after school by playing and drawing with them. vi) Issues impacting on parent’s ability to meet the children’s needs – unsettled immigration status and uncertain accommodation were the most important concerns with the family having lived in three previous locations in the Peckham area. The children had developed resilience and adaptability. vii) Parent’s views – the first Claimant unsurprisingly expressed her wish for leave to remain in the UK and accommodation. She did not request any financial or subsistence support. F refused to meet the social worker but told her over the telephone that he was not supporting the family. viii) Family and environmental factors – the first Claimant had been educated in Nigeria and had worked as a teacher for four years. According to her she and her children had been supported by F who did work despite having no legal right to do so. The Claimants’ current home was a privately rented flat from which the Claimants expected to be evicted on 13th June 2012 for rent arrears. The first Claimant had about £600 savings. The Claimants had made an application for leave to remain (with F being the main applicant) but this had been refused most recently in 2011. The first Claimant did not have any outstanding application in May 2012 but said she was planning to make one with the assistance of new solicitors although it was observed that the only change in circumstances was the departure of F.[8]Thereafter the 1st Assessment contains a section called ‘Analysis and Plan’. The option of returning to Nigeria was discussed with the first Claimant who was not willing to consider voluntary return and claimed she had nowhere to return to. She also feared she may not be able to access and afford suitable healthcare and her children would not gain the education they would have available in the UK. The social worker did research into the provision for primary school education in the area of Nigeria which was the first Claimant’s home, Obodoukwu town, and found that there is both educational and medical provision in the area. The social worker also assessed that the children’s best interests were for them to remain in the care of their mother and travel to Nigeria with the necessary assistance in terms of flights, travel documents etc which could be obtained for them. The action recommended as a result of this assessment noted that the option of voluntary return to Nigeria was available to the Claimants; alternatively, an application for further consideration of leave to remain should be made by the Claimants having taken legal advice. Should the eviction proceed and the children be at risk of street homelessness then the Defendant may consider providing interim emergency accommodation but only until either arrangements were made for travel to Nigeria or another Article 3 European Convention of Human Rights application was made.[9]A letter before action was sent to the Defendant on 7th June 2012 because an eviction warrant had been obtained and was to be enforced on 13th June. Consistent with the content of the 1st Assessment the Defendant then accepted a duty to provide accommodation and to support the minor Claimants pursuant to s.17 of the Children Act 1989. They were provided with bed and breakfast accommodation in West Norwood overnight on 13th June and then moved to more bed and breakfast accommodation above a public house in Walworth Road London SE17 which was in the area of Peckham in which they wished to remain due to local ties including to school. The accommodation provided at that time was modest: the family which then consisted of mother and three children had one bedroom and had to share kitchen and bathroom facilities with others housed in the same building. Subsequently the property was found to be over-crowded, suffering infestation with rodents and its location over a public house was noisy.[10]In due course a review of the Claimants’ situation was requested by the first Claimant who expressed concerns about the accommodation and the level of subsistence support. The Claimant’s doctor had written a letter dated 14th August 2012 in which he recorded the fact that the children were suffering from respiratory tract infection and that the accommodation was having a deleterious impact on their health. This (2nd Assessment) was started on 4th September 2012. It followed the pattern and content of the 1st Assessment with updates added. The children were able to continue to attend school. They were able to play in their room or in the room of the next door family with children but the children were restless and unhappy in the temporary accommodation which lacked space and stimulation. This had also had an impact on how some of them presented at school, one was tearful and upset at the limited space and her inability to find what she wanted in the room. However, they remained well looked after and the room was clean and ordered. The first Claimant expressed a wish to move to alternative accommodation still closer to the school. She was told that a move could be made to a larger but still temporary room elsewhere but she said she preferred to wait for private rented accommodation although she was told that finding it may take time and it might not be near the school. The social worker expressed the view that the first Claimant’s rejection of alternative accommodation demonstrated that the current accommodation was adequate although plainly far from ideal. Specific concerns about the accommodation raised by the Claimants’ solicitor in correspondence with the Defendant were examined in a visit by the social worker and the practice manager. Although over-crowded, leading to the possibility of cross-infection and with humble facilities, the room was assessed as providing basic care needs for the family during a period of temporary accommodation.[11]An assessment of the need for financial support had been carried out on 17th July 2012 a month after the Defendant first accepted responsibility under s.17. The first Claimant had exhausted her savings, she produced receipts for the items she purchased using the charity vouchers from Kid’s Club and gave the social worker a list of further items of expenditure which she requested that the Defendant meet. Weekly bus passes to access school and children’s activities were included. The total she sought was between £45.50 and £51.50 a week. This represented her own list of essential needs for her family. She also asked about any available subsistence for herself (although there was no suggestion that the food and other items she had listed were not to be consumed by her too.) She was told that the support generally provided by the Defendant in such a situation was equivalent to the £30 food vouchers the family was already in receipt of from the charity. From 20th July £47.10 per week was provided as adequate to meet the basic subsistence needs of the family based on the list the first Claimant provided.[12]By December 2012 moving to larger accommodation which may be available was discussed. This was in other parts of South London but away from the family’s preferred Peckham area. The first Claimant was concerned to avoid disruption to the children’s schooling. There is no evidence that any particular property was offered.[13]Judicial review proceedings and application for interim relief were filed on 19th December. In the detailed Grounds of Claim the Claimants referred to, and provided, an addendum assessment by an environmental health consultant which had not previously been given to the Defendant. His finding was that the rodent infestation in the property represented a Category 1 hazard under the Housing Health and Safety Rating system. The Claimants asserted that the Defendant had acted unlawfully both in the accommodation provided and the level of the weekly subsistence.[14]Mr Justice Burton ordered the Defendant to respond to the application by 5pm the following day. The Defendant wrote to the Claimants on 20th December 2012 and offered a three bed-roomed property in Thornton Heath pending a further assessment by 14th January 2013 as well as an increased level of subsistence to a weekly sum of £86.00 with immediate effect again, pending further assessment.[15]On 2nd January 2013 the Claimants were moved into the rented accommodation in Thornton Heath with all their utility bills paid at a cost of £1450 per month. A further assessment (3rd Assessment) was completed on 21st January (the social worker had been ill for a week hence the delay). This assessment had begun on 20th December 2012 and followed the pattern of the previous two being a detailed evidence based document setting out the views of the first Claimant and others including the family’s doctor. A finance Assessment was carried out on 9th January 2013 by a senior social worker who followed the process of obtaining a list of shopping from the first Claimant. This included food, toiletries, nappies and washing powder. A total proposed budget of over £110 was not accepted by the Defendant. It was decided that as the first Claimant was not able to provide evidence of receipts for the amount she said she was spending and following consideration of the Defendant’s experience of supporting families in similar situations the subsistence payment was to revert to £47.10 per week. An additional travel payment of £19.60 was to continue and the family still received the £30 vouchers from charity.[16]Although newly decorated and in acceptable cosmetic condition this property was quickly found to be damp and unsuitable and on 12th February 2013 the Claimants moved to Crystal Palace, a property with two bedrooms, also provided by the Defendant and with all bills paid at a cost of £1550 per month. This was still temporary accommodation under s.17 Children Act 1989 pending a decision on the first Claimant’s application for leave to remain.[17]During the course of the year F was sent to prison for a fraud offence but by June 2013 he had moved back in with the Claimants and was sharing the Claimants’ accommodation. In October 2013 the first Claimant had another baby by him.[18]In July 2013 Her Honour Judge Karen Walden-Smith made no order on the claim but allowed 21 days for the claim to be amended if it were still contended that accommodation and support for the Claimants was not appropriate to their needs. On 1st August 2013 Supplementary Grounds were filed. The claim continued to challenge the adequacy of the provision and extended the complaint to the fact that as an expectant mother the first Claimant had additional needs which were not allowed for and had not been assessed, to the detriment of the whole family and her unborn child. In addition a suggestion made to the Claimants that more suitable accommodation might be found away from London such as in Nottingham was not welcomed and it was pointed out that the proposal was made without an assessment of the impact of such a move on the children’s welfare.[19]The first Claimant’s immigration application was refused on 11th August and in its Summary of Grounds in Response document dated 19th August the Defendant noted that the Home Office expected the first Claimant to make voluntary arrangements to return to Nigeria with her children taking advantage of support available to assist them in that endeavour.[20]Permission in this application for judicial review was considered and refused on the papers by Mr Justice Walker on 3rd October 2013. Permission was granted at the hearing of the renewed application on 14th February 2014. In that month the subsistence payments to the Claimants were increased to £60.50 a week, together with a bus-pass and the Claimants were still in receipt of food vouchers from the charity.[21]A further assessment (4th Assessment) started on 20th February 2014 acknowledged F’s return to the family and its positive impact on the Claimants. The children were thriving. In light of the addition of F to the family the subsistence level was increased to £80.70 per week and it was to be kept under review (not including the charity food vouchers and money for travel). In particular the Claimants were told that if any one-off expenditure was required such as new winter coats, or summer clothing they should approach the Defendant again. The social worker also recommended that the family consider a move to Manchester where they could live in a larger privately rented property. The social worker was also considering the Claimants’ longer term prospects in that if the family was to be successful in its appeal against the immigration decision it would be much more likely to obtain a fair sized property on Housing Benefit rates outside London rather than within London.[22]From 30th May the subsistence payment was increased to £140 weekly with effect from 23rd May 2014.[23]The Claimants had been offered a move to Manchester in November 2013 but the first Claimant was not happy about the move of school for her children and leaving the church with which they were all happy. However, by June 2014 the first Claimant did consent and accepted that the likelihood of finding suitable property in London for the family to live in was very low.[24]The family was moved to temporary accommodation in Catford, SE6 on 19th June 2014. As a result of the move the third Claimant missed an appointment with an educational psychologist. This was re-arranged for 12th August and the resulting report dated 3rd October stated that he has been seen because of perceived behavioural and learning difficulties. A number of recommendations are made. Happily, in the circumstances, there is no suggestion that his difficulties will be exacerbated by a move away from London.[25]On 1st September 2014, the Claimants moved again to a three bedroomed house in Rochdale. There was a delay in finding schools for the children but they are now settled in two different schools. There are additional expenses in the new location so a further assessment (6th Assessment) by way of review was carried out on 6th November 2014. A detailed list of weekly expenditure was prepared by the first Claimant which was almost entirely accepted by the Defendant. Snacks were not approved at the rate sought by the Claimants nor were some of the non-essential toiletries listed agreed. The Kid’s Company food vouchers were no longer available because the family was now outside London. Higher travel costs have been allowed for given that the free travel enjoyed by the children in London is not available in Rochdale. As a result the total subsistence currently paid is £216.92 per week. As was the case for all previous assessments this does not include instances of additional one off expenditure and the Claimants can still seek this on an ad hoc basis. At the end of this last assessment the writer noted that the Defendant is reviewing is policy for calculating subsistence payments for destitute families seeking support pursuant to s.17 Children Act 1989. The payments continue to be based on an assessment of the family’s essential needs however, “By way of a benchmark, the level of support offered to the family has been cross referenced to the levels of support provided to families entitled to section 4 NASS IAA 1999 support…. ”[26]Against this benchmark the subsistence reached in the 6th November assessment is just slightly higher than the correlating s.4 level would be. In addition one off payments amounting to a total of £264.66 (some of which are backdated sums for baby food) has been made.[27]The trigger for the re-consideration of the Defendant’s Children’s Services approach to financial support is explained in the witness statement of April Bald, the Head of Assessment and Intervention Services. She states that the review is being undertaken following the guidance provided in judgments in the R (PO & others) v London Borough of Newham [2014] EWHC 2561 (Admin) and R (Refugee Action) v SSHD [2014] EWHC 1033 (Admin) cases. While the review is underway social workers are continuing to provide case by case assessments based on the essential needs of such children but, from September 2014, in addition they have been cross checking their conclusions against the rates provided to failed asylum seekers under s. 4 Immigration and Asylum Act 1999 (with ad hoc requests also considered on top as before).[28]The first Claimant has made witness statements which set out her concern that the provision made for her family was and remains inadequate.

The Relevant Law

[29]It is agreed that the minor Claimants (and indeed E) are all children in need. The relevant powers and duties of the Defendant in relation to the provision of support for children are set out in sections 17 and 20 of the 1989 Act. Section 17 (1) provides that it is the general duty of every local authority:
"(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."

by providing a range and level of services appropriate to those children's needs."

[30]Section 17(3) states that any service provided by a local authority in the exercise of functions conferred on them by section 17 "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." By section 17(6), the services provided may include providing accommodation and giving assistance in kind or in cash. The relevant provisions of the 1989 Act are concerned with the provision by social services authorities of services for the purpose of safeguarding and promoting the welfare of children while they are ‘in need’ which is to be a temporary situation until the needs are met in a more permanent way by State provision or otherwise.[31]In section 17(10), a child is defined as being "in need" if: " a)he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part; b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or c) he is disabled, and ‘family’ in relation to such a child includes any person who has parental responsibility for the child and any other person with whom he has been living."

and

[32]Paragraph 1 of Schedule 2 to the 1989 Act requires every local authority to take reasonable steps to identify the extent to which there are children in need within its area. Paragraph 3 of Schedule 2 provides that, where it appears to a local authority that a child within its area is in need, the authority may assess his/her needs for the purposes of the 1989 Act at the same time as any assessment of the child's needs is made under any other Act.[33]In the case of R v London Borough of Barnet ex parte G [2003] WLR 1194, the House of Lords held that there is a duty on a local authority (in its capacity as the local social services authority) to take reasonable steps to assess, for the purposes of the 1989 Act, the needs of any child in its area who appears to be in need. However, the Court said that section 17 did not impose a mandatory duty on a local authority to provide accommodation or any other service to meet the assessed needs of any individual child.[34]The fact that the type of support and amount of any monetary payments lie within the broad discretion of the local authority concerned has recently been confirmed in R (PO) v London Borough of Newham (supra.) [15]. Although not directly relevant to this case I note that a particular method used by Salford County Council to determine the provision to be made in circumstances of destitution such as those presently being considered, namely taking s. 4 Immigration and Asylum Act 1999 rates as a base rate which could them be departed from, was recently held to be a rational approach and lawful by Mr

Justice Lewis in R (Mensah and Bello) v Salford County Council [2014] EWHC 3537 (Admin) [48]:

"The local authority has the expertise, and the awareness of the claims upon its resources, to make the necessary judgments. The function of the court is to review the lawfulness of the local authority’s decision not to substitute its view for that of the local authority as to the appropriate level of assistance to be provided."
[35]Until 15th April 2013, the procedures for carrying out an assessment under the 1989 Act were set out in the "Framework for the Assessment of Children in Need and their Families", which was statutory guidance issued under the provisions of section 7 of the Local Authority Social Services Act 1970 and had to be followed by the Defendant unless there was good reason not to do so. That guidance has now been replaced by the guidance contained in a document entitled "Working Together to Safeguard Children" which has the same status.[36]A Local Authority Circular LAC (2003) 13 dated 2nd June 2003 was sent to all county and borough councils in England. It describes itself as ‘Guidance on accommodating children in need and their families.’ It states that it will remain in force until further notice. It does not state that it is statutory guidance or that it is issued under the provisions of s.7 Local Authority Social Services Act 1970. It is three and a half sides of guidance which makes reference to some case law and touches on a few topics. One topic is the suitability of accommodation and reference is made within it to the Homelessness Code of Guidance for Local Authorities issued in July 2002. LAC (2003) 13 states, "Social services departments might find it helpful to refer in particular to Chapter 12 of the Code, which deals with suitability of accommodation, and to work closely with Housing Departments in putting it into practice."[37]The relevant part of the Homelessness Code of Guidance states, in summary, that bed and breakfast accommodation is not suitable for families and must be used only as a last resort and even then for no more than six weeks in all.

The Nationality, Immigration and Asylum Act 2002

[38]The Nationality, Immigration and Asylum Act (the 2002 Act), and its interplay with section 17 of the 1989 Act, are also relevant. Section 54 and Schedule 3 to the 2002 Act provide for the withholding and withdrawal of support and assistance for various classes of ineligible persons. In summary, paragraphs 1 and 3 of Schedule 3 provide that an adult who is unlawfully present in the UK and who is not an asylum seeker is ineligible for support under section 17 of the 1989 Act unless, and to the extent that, its provision is necessary in order to avoid a breach of her Convention rights. The burden of proof is on the person applying for support to show that such support is necessary in order to avoid a breach of Convention rights.

The Issues

[39]It is worth emphasising that when considering this sort of claim for judicial review the question is not what the court considers to be the appropriate amount of financial support or type of accommodation. That judgment does not lie with unelected judges but is vested by Parliament in the elected government and the local authorities concerned. The decisions of the Defendant in this case can only be challenged on well recognised public law principles.

First Issue: Inadequate assessment and inadequate provision

[40]The Claimants argue that the Defendant has not properly assessed their needs since June 2012 and consequently failed to discharge its duties under s.17 of the Children Act 1989 at least up until the 6th November 2014 assessment (although it is not suggested that the relevant frameworks in paragraph 34 above have not been adhered to.) In particular: i) The 6th November 2014 assessment presents such a glaring increase on the previous levels of subsistence support that the earlier sums must have been inadequate to discharge the s.17 duty and therefore unlawful. ii) Although the support provided by the Defendant is now cross checked against what is said by the Claimants to be the lowest level of humanitarian support, namely s.4 Immigration and Asylum Act 1999 levels, all previous assessments by the Defendant must, by that measure, have been inadequate and so in breach of the Defendant’s duty. An equating of s.17 assistance to child benefit rates is wrong in principle because child benefit rates are not meant to be a basis for survival. iii) Because the Claimants are a family the assessments should have made allowance for the adult (and then adults) throughout, despite their inability to have recourse to public funds. It was necessary to make provision for a parent albeit limited to that necessary to prevent breach of a Convention right. No provision was made for F until 2014. Thereafter it will be for the Defendant to consider whether any back payments fall to be made and whether they are made. It is said this is most certainly not a claim for damages.[41]The Defendant makes no concession that any failures have occurred in assessing appropriate subsistence rates pursuant to its duties under s.17. Nor is it conceded that the Claimants have received payments pinned to child benefit rates or any other external measure. i) The Defendant’s social workers have applied a bespoke approach. The 1st Assessment with its detailed consideration of the needs of the children and the July 2012 assessment were concerned with the actual basic requirements of this particular family rather than the application of any standard, ‘one size fits all’ approach. The level of financial support provided by the Defendant was the amount actually needed by the first Claimant, taken from her rather than imposed on the basis of a notional average child’s requirements. This illustrates that any correlation in the final sum allocated with child benefit rates is purely accidental. It is essentially agreed that to simply peg subsistence provision under s.17 to child benefit rates would not constitute lawful fulfilment of the Defendant’s s.17 duties. ii) Over the relevant period the ‘shopping lists’ discussed with the first Claimant vary and where an item of expenditure is not considered suitable for provision by the social worker that item was discussed with the first Claimant. The detail of the assessments, building on the previous ones illustrates the care taken to reach a proper sum which is neither on the one hand careless of finite and stretched resources, nor on the other, ignores the real needs of the Claimants. The social workers assessed whether the children’s needs were being met, considered their environment, their presentation, spoke to them where possible and made a rounded holistic judgment.[42]My conclusion on this issue is that the Defendant sought to provide a detailed, case-sensitive assessment of the needs of the children under its s.17 duty. The reference to rates of child benefit is a red herring. Child benefit rates are not mentioned in any of the assessments and appear for the first time in Grounds of Defence drafted by counsel then acting for the Defendant. Where the Grounds of Defence include that reference it is by way of a comparison and even then only a comparison to the shopping list part of the provision rather than, for example, including the extra sum for travel expenses. More generally, the assessments are responsive to changes in circumstances, albeit not immediately so. They are periodic, and when the first Claimant sought a review it has generally been carried out. There is no specification in the Act for the period between reviews or precisely how the assessment should be carried out. Although the bare figures reached in some of the assessments in the case appear objectively low the evidence does not lead me to conclude that they were reached through any improper, unfair or irrational process. The approach of the social workers responsible for this case on behalf of the Defendant is to be contrasted with those of the Defendant borough in R (PO) v Newham (supra) in which ‘set rates’ chosen by senior management for subsistence payments to families who had no access to social welfare benefits were employed across the board irrespective of actual need.[43]Furthermore it is not any specific figure of money itself that must be the focus of the court’s attention; rather it is the process by which the Defendant discharged its duty and whether in fact the children’s needs were met. They plainly were met to a sufficient degree to discharge the duty. The Defendant took on responsibility for the Claimants as soon as they were evicted and has provided at least five different sets of accommodation since June 2012. At each the rent has been paid together with utilities and furniture has been provided, all at some considerable expense. The children were able to attend their school until the end of the academic years 2012-2013 and 2013-2014 (although for six months of that time they were housed in bed and breakfast accommodation), and are now settled in new schools near to their new family home. The Defendant has covered the costs of removals throughout and has responded to complaints about accommodation with regular visits. The greater current need (given the move to Rochdale and the loss of some London provision such as the charity contribution and free travel for the children) requires an upward adjustment which has been made. All this is set against the pressures on the Defendant’s budgets and in particular those of its Children’s Services department. There is no evidence that the children have been discriminated against because of the first Claimant’s immigration status which is soon to be resolved. There is nothing in this claim and I decline to quash the Defendant’s assessments or make the declarations sought.[44]If I am wrong and the actual financial provision was insufficient to satisfy the Claimants’ needs and fulfil the Defendant’s duty it is nonetheless the case that every assessment has been overtaken by a fresh one and each is kept under review with the ability to make one off payments in addition. In those circumstances any failure to fulfil the Defendant’s duty has subsequently been rectified and this part of the claim is academic.

Second Issue: Move to Rochdale without assessment of impact on the children

[45]The Claimants point out that no specific assessment was done to evaluate the impact on the children of a move away from London before the family was re-located to Rochdale. There is evidence that the children were anxious about moving away from their friends and that the school considered each child would be adversely affected. There is also reference in correspondence between the parties to such an assessment being prepared. In January 2014 a written version of the assessment was promised to the first Claimant, in February it was said to be being completed. No such assessment has ever been provided. It is urged upon me that there is a realistic prospect that had such a dedicated assessment been done the family may not have been moved away from their close community ties but given priority for housing in the Peckham area.[46]The Defendant responds that there is evidence the first Claimant was asked about the prospect of leaving London in November 2013; it wasn’t until June 2014 that she agreed to such relocation. Her concern was that the children should not move mid-term, an entirely appropriate position which was accommodated. The eventual move took place with the consent and cooperation of the first Claimant who has always been assessed as capable of discerning the needs of her children. She is plainly a good parent who makes decisions in the best interests of her children, by this year both she and F agreed to the move outside London. Although a separate assessment could have been done much of what it would have covered was dealt with in the 2013 assessments.[47]In my judgment it would be unnecessarily bureaucratic to require a separate assessment on this topic. The Claimants have shown no authority requiring one. More importantly, the focus of the Defendant’s periodic assessments was always the well-being and needs of the minor Claimants. It is clear that an overwhelming need was for suitably large accommodation close to suitable educational provision. It is necessary to recognise the difficulties in obtaining suitable accommodation for a family in the Claimants’ position. Although it remains temporary the home the family now has meets their needs very well and there is no evidence that the failure to do a specific assessment has failed them in any way. Accordingly no specific assessment was essential to discharge the Defendant’s duty to the minor Claimants given the first Claimant’s agreement to the relocation and the content of the periodic assessments already summarised in this judgment. It follows that the declaration sought by the Claimants is unnecessary.

Third Issue: Failure to support travel arrangements during holiday

[48]The Claimants seek an order quashing the Defendant’s decision not to continue the provision of travel expenses, namely a bus pass, for the first Claimant during the holiday period while the family lived in London. This was vital to her ability to travel with the children, take them to school where necessary, go to church as a family and for her to visit the charity to collect her food vouchers. I agree with the Defendant, it was within the Defendant’s discretion to withhold the extra sum for the first Claimant’s bus pass during the school holidays. The family was still able to collect its vouchers and its social contacts continued. The family had a circle of friends. Although not a large sum in itself it is a sign of a careful assessment of what the needs of the children are and withdrawing that portion of the provision temporarily is a reasonable, albeit perhaps somewhat harsh, exercise of the discretion available to the Defendant.

Fourth Issue: Bed and Breakfast accommodation was unlawful

[49]The Claimants submit that placing them in the one room in bed and breakfast accommodation in Walworth Road which they occupied from June 2012 to January 2013 was unlawful. It was objectively unsuitable for a mother with three young children. It was infested with rodents, overcrowded and the family was left there for far longer than the relevant guidance permits. The Claimants rely on a breach Homelessness Code. Although the Claimants have not been in bed and breakfast accommodation since early 2013 the failure to apply statutory guidance is a matter of importance for destitute families and it is relevant to any potential entitlement to damages for just satisfaction of breach of the Claimants’ Convention rights.[50]The Defendant responds that the LAC (2003) 13 does not purport to be statutory guidance and there is a difference between guidance given under Local Authority Social Services Act 1970 s.7 and s.7A and other general advice even if it is called ‘Guidance’. Where guidance is statutory it will generally make this explicit and the Court was taken to examples such as ‘Friends and Family care Statutory Guidance’. I agree that LAC (2003) 13 does not appear to be statutory guidance but even if I am wrong about that LAC 2003(13) says no more than social services departments might find it “helpful” to refer in particular to Chapter 12 of the Homelessness Code of Guidance. It is not mandatory.[51]I return however, to the s.17 duty which the Defendant had rightly recognised was owed to the Claimants. The accommodating of this mother with young children in a single room in bed and breakfast accommodation for anything longer that a few weeks or so, was inappropriate and bound to have some adverse impact on them. Did it have such an adverse impact that it amounted thereby to a breach of the Defendant’s duty? I have considerable sympathy with their position at that time but I must also pay heed to the fact that being accommodated together at this location facilitated their family life, in that it provided emergency accommodation in their preferred area of Peckham and enabled the children to preserve attendance at their existing school and maintain their social networks. The background to the accommodation provision was a chronic shortage of suitable rental accommodation available to the Defendant’s Children’s Services. It is also right to observe that offers of alternative accommodation were made but they were not considered ideal by the first Claimant. Either out of London (mid-school year) or away from the area or just larger but bed and breakfast accommodation nonetheless. The fact that the first Claimant preferred to stay where she was is some indication that although bad, this was the best of a difficult situation. In the circumstances I am not satisfied that the Defendant failed to follow statutory guidance and I do not consider that failure to follow non-statutory guidance was, if it occurred in this case, unlawful or unreasonable given the peculiar circumstances of the Claimants’ situation. The placing of the Claimants in the temporary bed and breakfast accommodation as part of the fulfilment of the Defendant’s duties under s.17, for so long was certainly regrettable but not in all the circumstances, unlawful.[52]In light of the conclusions I have reached in this judgment there is no proper basis upon which to order the Defendant to carry out a fresh assessment following that of 6th November 2014.[53]In respect of a claim for damages for breach of Article 8 ECHR rights I find no basis for such a claim. At all times the first Claimant’s basic needs for shelter and sustenance were absorbed in the needs of her family which the Defendant met, as I have found. I am not satisfied that there were any essential needs which were not met. Once F joined the family he took advantage of the accommodation provided to the family and inevitably he would consume some of the food but although an earlier re-assessment following his return would have led, I expect, to some increase in financial support from the Defendant there is no evidence that any of the Claimants suffered as a result or that their essential needs were no longer being met. In the circumstances the failure to immediately increase the subsistence payments to the Claimants on the return of F (or indeed on the birth of E) do not invalidate the discharge of the Defendant’s duty under s.17 and the Defendant’s approach has not been invalidated by any material public law error.

Conclusion

[54]For all the reasons set out above in respect of the issues to be determined in this claim for judicial review the claim fails.

Cited in 1 later judgment