S And J, R (On the Application Of) v The London Borough of Haringey [2016] EWHC 2692 (Admin)

[2016] EWHC 2692 (Admin)Case No CO/3034/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/10/2016
Before
NEIL CAMERON QC
Between
THE QUEEN (on the application of S and J by their litigation friend, their mother JB)ClaimantsTHE LONDON BOROUGH OF HARINGEYDefendant
Mr Azeem Suterwalla (instructed by Duncan Lewis and Co) for ClaimantsMr. Michael Paget (instructed by London Borough of Haringey Legal Services) for DefendantHearing Hearing dates: 21 st September 2016
Judgment ApprovedNeil Cameron QC :Introduction
[1]This is an application for judicial review of a decision by the London Borough of Haringey made on 22nd March 2016 and affirmed by letter dated 3rd June 2016 that the Claimants were not children in need for the purposes of Part III of the Children Act 1989 (“the 1989 Act”).[2]In order to protect the Claimants’ identity an order has been made that no information should be disclosed which identifies them. I have referred to the Claimants as S and J or the Claimants, and to their mother as JB. I have referred to other people in the case by their initials.[3]On 28th June 2016 permission to proceed with an application for judicial review was granted by Karen Steyn QC sitting as a Deputy High Court Judge. Ms Steyn also made an order for interim relief, namely that the Defendant should provide accommodation for the Claimants pending final determination of the proceedings or final order, and that the Claimants’ mother is required to make a contribution of £400 per calendar month towards the costs of that accommodation.[4]Following the hearing on 21st September 2016 further written submissions were submitted by both parties in accordance with a timetable which I set at the close of the oral hearing.[5]The Claimants relied on the following grounds of claim: a) The Defendant’s conclusion and reasoning in the March 2016 Assessment and letter of 3rd June 2016 were irrational and unreasonable. b) Denying the Claimants accommodation in their current circumstances breaches their Article 3 and Article 8 European Convention on Human Rights (“ECHR”) rights and therefore constitutes a breach of section 6(1) of the Human Rights Act 1998. c) The Defendant took into account irrelevant considerations. d) The Defendant failed to take into account relevant considerations. e) The approach adopted by the Defendant in the March 2016 Assessment and in its letter of 3rd June 2016 constitutes a breach of the Defendant’s duty under section 11 of the Children Act 2004 (“the 2004 Act”).[6]In the written submissions made on behalf of the Claimants following the oral hearing, an application is made to add an additional ground, namely:
“That the Defendant’s decision was made in a procedurally unfair manner, as in part (iv) of its letter of 3rd June 2016 it relied upon the fact that JB was unreliable without offering her a chance to answer the points upon which the finding was made. ”
[7]I will consider that application when considering Ground 3.

The facts

[8]The First Claimant, S, is a British Citizen. The Second Claimant, J, is a Ghanian national. JB is S and J’s mother; she is a Ghanian national. Both J and JB have leave to remain in the United Kingdom.[9]S and J have different fathers. JB is not in a relationship with either S’s father or J’s father.[10]S is fifteen years old. S attends Park View School in Haringey. In September 2016 she started her final GCSE year.[11]J is four years old. J attends Holy Trinity Church of England School in Haringey.[12]JB’s leave to remain in the United Kingdom is subject to a condition that she does not have recourse to public funds. JB is a person to whom section 115 of the Immigration and Asylum Act 1999 applies and she is not entitled to claim welfare benefits.[13]JB has lived in the United Kingdom since 1994. She arrived in the UK on 18th August 1994 on a visitor’s visa. She extended the visa to a working holiday visa, which was valid for two years. On 24th June 2013 she was granted leave to remain. An extension of 30 months of JB’s leave to remain was granted on 28th April 2016.

Accommodation

[14]Following her arrival in the UK in 1994, JB has lived with friends or in rented accommodation.[15]From 2007 until May 2012 JB and S lived in a rented room in a flat in Finsbury Park Avenue. In December 2011, when JB was pregnant with J, she was assaulted by her landlord. JB’s landlord was sub-letting accommodation without consent, and the housing association sought possession. JB and S had to leave the flat and so sought assistance from the Defendant’s Social Services’ department. In May 2012, the Defendant provided accommodation for JB and S. The Defendant required JB to make a contribution of £800 per month to the cost of the accommodation. J was born in July 2012. JB was unable to pay £800 a month and so was required to vacate the accommodation in October 2012.[16]Between October 2012 and October 2013 JB, S and J stayed with different friends and with her sisters who I will refer to as D and P. From October 2013 to June 2014 JB rented a flat in Edmonton for £750 a month. From June 2014 until September 2015 JB rented in a room in a house shared with others. JB, S and J had to leave the property as the landlord intended to sell it.[17]From September 2015 JB, S and J have stayed with various different friends. Save for the night of 6th January 2016, from December 2015 until 26th February 2016 they stayed with a friend in Tottenham, London N17. JB, S and J slept in the living room. From 26th February 2016 until 10th April 2016, JB, S and J stayed with a friend in London N22.[18]From 10th April 2016 the Claimants and their mother stayed with a friend in London N15; they slept on the kitchen floor.[19]At the time of the permission hearing on 28th June 2016 the Claimants and their mother were staying with their friend in London N15. The Claimants stayed with other friends on the 29th and 30th June 2016 and, on 1st July 2016, pursuant to the order of Ms Steyn, they moved into shared accommodation provided by the Defendant.

Income

[20]JB works as a sales assistant for Morrisons in Camden. She has held that position for 20 years. She is contracted to work for 23 hours each week. Her net pay is £663.20 a month.[21]JB was in receipt of child benefit from 2001 until October 2015. She was in receipt of Child Tax and Working Tax Credits from around 2002 until July 2015. JB received approximately £137 a month in child benefit and £1,000 a month in tax credits. S’s father paid £220 per month and J’s father paid £200 per month.[22]JB was not entitled to the welfare benefits that she received and is required to repay £16,000.[23]The payment from S’s father, which is paid through the Child Support Agency, has been reduced to £75 a month.[24]In 2016 JB’s monthly income was £663.20 from her wages £200 from J’s father, and £75 from S’s father.

Requests for Assistance

[25]The Claimants were referred to the Defendant by Project 17. In an email dated 7th December 2015, a support worker for Project 17 wrote to the Defendant requesting that it undertake an urgent assessment under the provisions of section 17 of the 1989 Act.[26]JB attended the Defendant’s housing department on 7th December 2015, and the Defendant’s Children’s Services department on 8th December 2015.[27]In a letter dated 17th December 2015 the Claimants’ solicitors wrote to the Defendant requesting that it undertake an assessment under section 17 of the 1989 Act.[28]On the 6th January 2016 the Claimants’ solicitors sent a pre-action protocol letter to the Defendant. The Defendant agreed to undertake an assessment and on 13th January 2016 the case was allocated to a social worker.[29]On 11th April 2016 the Defendant wrote to the Claimants’ solicitors and informed them that it had carried out an assessment and had concluded that the Claimants were not children in need for the purposes of section 17 of the 1989 Act.

The Defendant's Decision

[30]The Child and Family Assessment undertaken by the Defendant is dated 22nd March 2016 (“the Assessment”). The conclusion of the Assessment was that the Claimants were not children in need.[31]On 15th April 2016 the Claimants’ solicitor wrote a further pre-action protocol letter. The decision challenged was the conclusion of the 22nd March 2016 Assessment. The Claimants’ solicitors requested that the Defendant review its decision of 22nd March 2016.[32]The Defendant re-affirmed its decision in a letter dated 3rd June 2016. Paragraph 1 of that letter states:
“The Council stands by its assessment of 22 March, which was sent to you on 15th April. The Council remains of the view that …. [S and J] …are not children in need and will not become children in need in the foreseeable future because their mother (‘the mother’) has the means and resources to avoid homelessness and destitution. This is for four broad reasons summarised below. …”

The Legal Framework

[33]Section 17 of the 1989 Act provides (so far as relevant):
“Provision of services for children in need, their families and others. (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 … (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 conferred 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 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. (11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part— “development” means physical, intellectual, emotional, social or behavioural development; and “health” means physical or mental health.” (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 (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. “development” means physical, intellectual, emotional, social or behavioural development; and “health” means physical or mental health.”
[34]Paragraph 1(1) of Schedule 2 to the 1989 Act provides:
“Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area”
[35]It is implicit in Section 17(1) that a local authority will 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 (R (G) v. Barnet LBC [2004] 2 AC 208 at paragraph 32).[36]Section 17 of the 1989 Act does not impose an obligation on a local authority to provide any particular services to a child. Section 17(3) vests a discretionary power in the local authority to provide services for the family of a child in need or any member of his family if it is provided with a view to safeguarding or promoting the child’s welfare. Such services include providing accommodation, and giving assistance in kind or in cash (section 17(6)).[37]A child without accommodation is a child in need (R (G) v. Barnet LBC [2004] 2 AC 208 at paragraph 19).[38]Many applications made under section 17 of the 1989 Act arise in cases where the child’s parent is homeless or unable to support her child because s/he her/himself is a person who has no recourse to public funds. A parent may have no recourse to public funds if s/he is in breach of immigration laws or if s/he is subject to immigration control.[39]Section 115 of the Immigration and Asylum Act 1999 excludes a person subject to immigration control from a wide range of welfare benefits unless s/he falls within such category or description, or satisfies such conditions as may be prescribed. As defined in section 115(9)(b) a person subject to immigration control includes a person who is not a national of an EEA State who has leave to remain in the United Kingdom which is subject to a condition that s/he does not have recourse to public funds.[40]The case of a person who has no recourse to public funds because s/he is subject to immigration control, is different from that of a person who falls within paragraph 7 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002, being a person who is in the United Kingdom in breach of immigration laws and is not an asylum seeker. The power to provide assistance under section 17 of the 1989 Act to those who are assessed as being children in need but are in the United Kingdom in breach of immigration laws only arises if and to the extent that to do so is necessary for the purposes of avoiding a breach of convention rights (R (MN and KN) v. LB of Hackney [2013] EWHC 1205 (Admin) at paragraph 19). In this case the exercise of the power is not so restricted.[41]As stated by Dobbs J in R (Blackburn-Smith) v. LB of Lambeth [2007] EWHC 767 (Admin) at paragraph 20, the section 17 powers were never intended to enable a local authority to act as an alternative welfare agency in circumstances where Parliament had determined that a person should be excluded from mainstream benefits.[42]In R(O) v. LB of Lambeth [2016] EWHC 937 (Admin) Helen Mountfield QC sitting as a Deputy High Court Judge set out the approach to be taken when considering whether a child is a child in need for the purposes of section 17 of the 1989 Act. “17 Whether or not a child is ‘in need’ for these purposes is a question for the judgement and discretion of the local authority, and appropriate respect should be given to the judgements of social workers, who have a difficult job. In the current climate, they are making difficult decisions in financially straitened circumstances, against a background of ever greater competing demands on their ever diminishing financial resources. So where reports set out social workers' conclusions on questions of judgement of this kind, they should be construed in a practical way, with the aim of seeking to discover their true meaning (see per Lord Dyson in McDonald v Royal Borough of Kensington & Chelsea [2011] UKSC 33 at [53]). The way they articulate those judgements should be judged as those of social care experts, and not of lawyers. Nonetheless, the decisions social workers make in such cases are of huge importance to the lives of the vulnerable children with whose interests they are concerned. So it behoves courts to satisfy themselves that there has been sufficiently diligent enquiry before those conclusions are reached, and that if they are based on rejection of the credibility of an applicant, some basis other than ‘feel’ has been articulated for why that is so. 18 The converse is also true. An applicant parent who is seeking to persuade a local authority that they and their child are destitute or homeless, so as to trigger the local authority's duties of consideration under section 17 Children Act 1989 is seeking a publicly funded benefit, to which they would not otherwise be entitled, which diverts those scarce funds from other Claimants. Even the process of assessment is a call on scarce public funds. It therefore behoves such an applicant to give as much information as possible to assist the decision-maker in forming a conclusion on whether or not they are destitute. 19 If the evidence is that a family has been in this country, without recourse to public funds and without destitution for a number of years, reliant on either work or the goodwill and kindness of friends and family, then the local authority is entitled and indeed rationally ought to enquire why and to what extent those other sources of support have suddenly dried up. In order to make those enquiries, the local authority needs information. If the applicant for assistance does not provide adequate contact details for family and friends who have provided assistance in the past, or cannot provide a satisfactory explanation as to why the sources of support which existed in the past have ceased to exist, the local authority may reasonably conclude that it is not satisfied that the family is homeless or destitute, so that no power to provide arises. 20 Fairness of course demands that any concerns as to this are put to the applicant so that she has a chance to make observations before any adverse inferences are drawn from gaps in the evidence, but otherwise, the local authority is entitled to draw inferences of ‘non-destitution’ from the combination of(a) evidence that sources of support have existed in the past and(b) lack of satisfactory or convincing explanation as to why they will cease to exist in future. 21 In other words, if sufficient enquiries have been made by the local authority and if as a result of those enquiries an applicant fails to provide information to explain a situation which prima facie appears to require some explanation, then the failure by an applicant to give sufficient information may be a proper consideration for the local authority in drawing the conclusion that the applicant is not destitute: see per Mr Justice Leggatt in R(MN) v London Borough of Hackney [2013] EWHC 1205 (Admin) at [44]. But that does not absolve the local authority of its duty of proper enquiry.”[43]In R (C, T, M and U) v. LB of Southwark [2016] EWCA Civ 707 (at paragraph 12) Ryder LJ summarised the established law on the effect of section 17 of the 1989 Act:
“12 It is settled law that the section 17 scheme does not create a specific or mandatory duty owed to an individual child. It is a target duty which creates a discretion in a local authority to make a decision to meet an individual child's assessed need. The decision may be influenced by factors other than the individual child's welfare and may include the resources of the local authority, other provision that has been made for the child and the needs of other children (see, for example R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208 at [113] and [118]). Accordingly, although the adequacy of an assessment or the lawfulness of a decision may be the subject of a challenge to the exercise of a local authority's functions under section 17 , it is not for the court to substitute its judgment for that of the local authority on the questions whether a child is in need and, if so, what that child's needs are, nor can the court dictate how the assessment is to be undertaken. Instead, the court should focus on the question whether the information gathered by a local authority is adequate for the purpose of performing the statutory duty i.e. whether the local authority can demonstrate that due regard has been had to the dimensions of a child's best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children. It is perhaps helpful to examine that question in a little more detail.”
[44]Section 11 of the Children Act 2004 (“the 2004 Act”) provides:
“11 Arrangements to safeguard and promote welfare (1) This section applies to each of the following– (a) a [local authority] … (2) Each person and body to whom this section applies must make arrangements for ensuring that– (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and … (4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.” (1) This section applies to each of the following– (a) a [local authority] … (2) Each person and body to whom this section applies must make arrangements for ensuring that– (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and … (4) Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.”
[45]There is no dispute between the parties that the Defendant is a local authority to whom the Section 11 (of the 2004 Act) duty applies, and that the duty applied when making its assessment under section 17 of the 1989 Act.[46]Section 11 of the 2004 Act does not in terms require that the children’s welfare should be paramount or even a primary consideration. However as held in Nzolameso v. City of Westminster [2015] UKSC 22 if ECHR rights are engaged, they are to be interpreted and applied consistently with international human rights standards, including Article 3 of the United Nations Convention on the Rights of the Child (“UNCRC”), which provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
[47]A decision based on an assessment undertaken for the purposes of section 17 of the 1989 Act should identify how the local authority have had regard to the need to safeguard and promote the welfare of children both in relation to the child or children under consideration and collectively (R (C, T, M and U) v. LB of Southwark [2016] EWCA Civ 707 at paragraph 15).[48]A general duty to house the homeless cannot be derived from Article 3 of the ECHR. Article 3 may be infringed if by the deliberate action of the state a person is denied shelter, food or the most basic necessities of life. If there was persuasive evidence that an applicant for assistance was obliged to sleep on the street, save perhaps for a short and foreseeably finite period the threshold would, in the ordinary way, be crossed (R (Limbuela) v. Home Secretary [2006] 1 AC 396 at paragraphs 7 and 9).[49]Article 8 of the ECHR does not in terms give a right to be provided with a home. In R (Anufrijeva) v. LB of Southwark [2003] EWCA Civ 1406 at paragraph 43 the court concluded:
“43. Neither Mr Sales nor Mr Swirsky, who appeared for the defendant in Anufrijeva challenged the decision of Sullivan J in Bernard , either in principle or on the facts. Our conclusion is that Sullivan J was correct to accept that Article 8 is capable of imposing on a State a positive obligation to provide support. We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that Article 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage Article 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, Article 8 may require the provision of welfare support in a manner which enables family life to continue. Thus, in J v The London Borough of Enfield [2002] EWHC Admin 735, where the claimant was homeless and faced separation from her child, it was common ground that, if this occurred, Article 8(1) would be infringed. Family life was seriously inhibited by the hideous conditions prevailing in the claimants' home in Bernard and we consider that it was open to Sullivan J to find that Article 8 was infringed on the facts of that case.”

The Grounds of Challenge

[50]The purpose of the assessment undertaken by the Defendant was to ascertain whether the Claimants were children in need. The issue for the Defendant to determine was whether, if services and in particular accommodation, were not provided by it as requested by JB, each child would be unlikely to achieve or maintain or have the opportunity of achieving or maintaining a reasonable standard of health and development, or whether the health or development would be likely to significantly impaired or further impaired.[51]The discretionary power conferred on the Defendant by section 17(3) of the 1989 Act only arose in the event that the outcome of the section 17(10) assessment was that the children or one of them was in need.[52]Whether or not a child is in need is a matter of judgement for the local authority. In R (C, T, M and U) v. LB of Southwark (at paragraph 22) the section 17 scheme was described as involving the exercise of ‘social work judgment’. That evaluative judgement is generally, and in this case was, exercised by a social worker. Social workers are called upon to make these difficult decisions against a background of diminishing available resources. Assessments of this kind should not be analysed as if they were a court’s judgment.[53]Mr Suterwalla, for the Claimants, submits that, in reliance upon R (KM) v. Cambridgeshire CC [2012] PTSR 1189 at paragraph 36, decisions by local authorities in cases such as this, involving consideration of the needs of the vulnerable, should be subject to close scrutiny. He developed that submission by arguing that the reasons must be scrutinised ever more closely, and that the degree of latitude afforded to local authority decision making should be restricted. Mr Paget, for the Defendant draws a distinction between the need for anxious scrutiny, identified, he submitted, in cases decided before the enactment of the Human Rights Act 1998, such as R v. Secretary of State for the Home Department ex parte Bugdaycay [1987] 1 AC 514 (the speech of Lord Bridge at page 531), and post 1998 Act references to close scrutiny.[54]I accept Mr Suterwalla’s submission that the decision under review in this case is such as to require close scrutiny. However, such close scrutiny should not focus on particular words used by a social worker in conducting his or her analysis but on the substance of the assessment and the reasons given. As held at paragraph 12 in R(C) v. LB of Southwark, the court should focus on the question of whether the information gathered by the local authority is adequate for the purpose of performing its statutory duty, and in particular whether due regard has been had to “.. the dimensions of a child’s best interests for the purposes of section 17 CA 1989 in the context of the duty in section 11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children.”

Ground 1

[55]Mr Suterwalla submits that the Defendant’ decision was irrational. In making that submission he argues that: a) The overall conclusion reached by the Defendant was irrational. b) It is irrational to conclude that for a GCSE student to have moved from house to house for approximately 14 times during the time which she has attended secondary school is not likely to impair development. Similarly, it is irrational to reach the same conclusion in relation to a nursery-aged child who has never stayed in one property for longer than a few months. c) It is irrational to conclude that the Claimants’ sleeping arrangements, and in particular sleeping on a kitchen or living room floor, would not impair a child’s development. d) It is irrational to conclude that any child whose mother has friends who can offer accommodation, means that the child is not in need. e) It is irrational to conclude that because, in the past family and friends have provided accommodation for the claimants and JB, they will do so in the future. f) Several of the sub-conclusions were plainly and obviously defective, in particular: i) It was irrational to accept (at page 9 of the March 2016 Assessment) that S “has a need of accommodation” and to then find that she was not a child in need. ii) It was irrational for the social worker to conclude that the Claimants were not in need within the meaning of section 17(10) of the 1989 Act if they had to continue to live in the conditions they were living at the time of the assessment. iii) The social worker fell into error as the focus of the assessment was on the question of whether the Claimants had a roof over their head, and not whether their living arrangements would hamper their welfare in due course. iv) The social worker’s consideration of sources of income was deficient, as in particular, there was no prospect of S’s father increasing his monthly contribution paid through the Child Support Agency. v) The statement, on page 15 of the Assessment, that, save when housed by the Defendant in 2012, the Claimants needed no support is not justified. vi) It is irrational to recommend that JB continue to access support from her friends and family network until she is able to secure independent accommodation without identifying those friends by name. Further those friends who have assisted, and JB’s sisters, are no longer willing to offer support. vii) It is irrational to suggest considering accommodation outside London as the reduced cost of accommodation would be outweighed by the cost of travelling to work in London and the current child care arrangements, including that offered by J’s father, would be lost. viii) A suggestion that JB seek additional employment is irrational as Morrisons have stated that they cannot offer her further work. ix) It is irrational to suggest that JB ask the Child Support Agency to review S’s father’s contribution of £75 a month as it is not possible to persuade the agency to require S’s father to increase the contribution. x) The suggestion that JB could reduce expenditure by ceasing to pay £170 per month for storage is irrational as, saving £170 a month will not be sufficient to meet the Claimants’ need for accommodation. xi) The additional reasoning set out at part (iv) of the letter dated 3rd June 2016 is part of the decision making and is flawed and irrational.[56]In his written submissions Mr Suterwalla: i) Submits that only two possible inferences can be drawn from the conclusion in the Assessment, either: a) That JB could immediately meet the Claimants’ need of accommodation by self/funding or organising alternative suitable accommodation; or b) That the accommodation the Claimants were living in March 2016 was not so unsuitable that the Claimants fell into the category of children in need. ii) Relies on the submissions already made in relation to the first inference, and makes further submissions in relation to the second inference. iii) Relies on the following passage from paragraph 28 of the speech of Lady Hale in R (G) v. Southwark LBC [2009] 1 W.L.R. 1299 “In this case it is common ground that A is a child in need, essentially because he is homeless. It is, perhaps, possible to envisage circumstances in which a 16- or 17-year-old who is temporarily without accommodation is nevertheless not in need within the meaning of section 17(10): perhaps a child whose home has been temporarily damaged by fire or flood who can well afford hotel accommodation while it is repaired.” iv) Submits that, in reliance upon that passage in R (G) v. Southwark LBC, thatas at the time of the March assessment the Claimants were sleeping on a living room floor, having moved from place to place, they must be considered to be ‘homeless’ and therefore children in need. v) Places reliance on R (A) v. Coventry City Council [2009] EWHC 34 (Admin) in which it was held that accommodation which is of uncertain duration cannot be said to be suitable accommodation for the purposes of section 20 of the Children Act 1989. In that case, it was not in dispute that the child concerned was a child in need (paragraph 27). vi) Submits that no rational authority could have concluded that because they had a floor to sleep on, as of March and June 2016, the Claimants were not without accommodation and not homeless. He further submits that a child without accommodation will always be a child in need.[57]Mr Paget, for the Defendant, submits that the conclusions of the Defendant’s assessment were not irrational. He submits that the Defendant considered the evidence and made an evaluative judgment.[58]There is a dispute between the parties as to whether that part of the Assessment headed “Social Worker recommendations/Outline plan” formed part of the reasoning which led to the conclusion that the Claimants were not children in need. The section under consideration follows the section headed “Social worker’s assessment of the current situation”. The section headed “Social Worker recommendations/Outline plan” contains recommendations based upon the assessment which is set out in the preceding section. Although a distinction can be drawn between the two sections, in my judgment the Assessment should be considered as a whole and it is inappropriate to make fine distinctions based upon the headings of various sections of the Assessment.[59]I reject the submission made on behalf of the Claimants that the Defendant’s approach was irrational. The Defendant’s March 2016 Assessment and 3rd June 2016 letter are to be subject to close scrutiny, but account must also be taken of the purposes for which they were prepared, and by whom they were prepared. The purpose of the Assessment and letter are to record the evaluative judgement arrived at by the Defendant.[60]The March 2016 Assessment contained sections entitled “Childs’ (sic) profile and story”. Separate profiles were recorded for both S and J. Those profiles included information relating to health and development, as defined in section 17(11) of the 1989 Act. The author of the Assessment identified the “threat of homelessness” as a risk for both Claimants. That risk was assessed and a professional judgement made that JB is able to provide accommodation for herself and the Claimants. The Defendant did not conclude that frequent house moves would not impair the Claimants’ development, and did not conclude that the Claimants’ sleeping arrangements would not impair the Claimants’ development. The Defendant concluded that JB was able to meet the Claimants’ and her own need for accommodation. That conclusion is repeated in paragraph 1 of the letter dated 3rd June 2016.[61]It is clear that the social worker conducting the Assessment considered the health and development of each Claimant. The Assessment considers each Claimant individually, and includes an assessment under the headings ‘health’, ‘education’, emotional and behavioural development’, ‘identity’, ‘family and social relationships’, ‘social presentation’ and ‘self care skills’. It is noted in the Assessment that there are no reported health concerns. In the 3rd June 2016 letter the Assessment is affirmed, and it is stated (at paragraph 8) that the Claimants were observed to be healthy and give rise to no issues concerning their development.[62]The conclusion of the Assessment is that there is nothing to suggest that JB is not able to secure rental accommodation as she has been able to do in the past. That conclusion is based upon an assessment of JB’s financial position, including her income from employment, contributions from the Claimants’ fathers, and potential expenditure savings.[63]It is not appropriate to take passages from the March 2016 Assessment or the 3rd June 2016 letter in isolation, the Assessment must be considered as a whole. In my judgment, the submissions made in relation to the ‘sub-conclusions’ are not made out. i) The reliance on the statement at page 9 of the Assessment is misplaced. The full sentence reads “Although S has a need of accommodation I am of the view that her mother JB, who is in employment has the ability with planning and discussion amongst her support network to meet their this need.” (sic). At page 15, when setting out her analysis and professional judgment, the author of the Assessment distinguishes between the Claimants’ need for accommodation and the issue of whether they are children in need. ii) The conclusions were not based upon an assumption that the Claimants would continue to live in the conditions that they were living in at the time of the Assessment. The conclusion reached was that JB has the means and resources to avoid homelessness and destitution. When making recommendations it was contemplated that she will be able, initially to rent one room before she is able to afford two rooms and eventually self-contained accommodation. iii) The focus of the recommendations in the Assessment is on securing accommodation. That followed from the consideration of S and J’s circumstances and the “Social worker’s assessment of the current situation” in which the threat of homelessness was identified under the heading “Needs and risks identified for the children”. It cannot be said to be irrational for that part of the report which follows the assessment of the current situation to focus on the needs and risks which had been identified. iv) The Assessment sets out JB’s sources of income. That assessment is said to be deficient as it includes a suggestion that S’s father be asked to increase his contribution. The information contained in the Assessment, namely that S’s father pays £75 a month, and that the payment is made through the Child Support Agency, is acknowledged to be correct. No assumption is made that S’s father will increase payments, it is stated “It may also be in [JB]’s best interest to request the Child Support Agency reviews [S’s father]’s contribution to the care of his daughter of £75 a month.” There is, in my judgment, no deficiency in the Assessment. In the letter dated 3rd June 2016 (at paragraph 7) the Defendant contends that JB has “….support or potential support (which would materialise if it had to) from some or all of the following: …”. The list that follows includes a reference to S’s father as a potential source of income. The letter does not suggest that all the sources of support can be relied upon. v) The statement, at page 15 of the Assessment, that save when temporary accommodation was provided in 2012, JB had received no additional intervention or support has to be read in context. That statement is to be found in the same paragraph as a reference to the fact that JB had been in receipt of child tax credits, and the use of the word ‘additional’ makes plain that the writer is referring to support in addition to the benefits to which reference is made. In my judgment, the sentence relied upon does not establish that the Assessment was irrational. vi) The submission made is that it is irrational to suggest that support from family and friends can be relied upon without identifying the particular family member or friend is not made out. It cannot be said to be irrational, on the evidence before the social worker, for her to conclude that friends or family would provide support without identifying a particular friend or family member who would provide support. vii) The reference to the cost of accommodation outside London has to be considered in context, namely a recommendation that JB be robust in her search for affordable accommodation and that such robustness ‘may mean venturing outside London boroughs’. That reference in that context cannot, in my judgment, be said to be irrational. viii) Similarly, the references in the Social Worker recommendations/outline plan to seeking additional employment, reducing expenditure by ceasing to pay storage costs, and contacting the Child Support Agency to review S’s father’s contribution, are recommendations. Those recommendations cannot be said to be irrational. Saving in storage costs was not put forward by the Defendant’s social worker as being sufficient, of itself, to raise sufficient funds to pay for accommodation; the submission made by the Claimants on that point is misplaced.[64]The written submissions made on behalf of the Claimants are based upon an inference that the basis for the Assessment was that the accommodation in which the Claimants were living in March 2016 was not so unsuitable such that it was deemed that the children were not in need. In my judgment it is clear from the Assessment that the conclusions were not based upon an assessment that the accommodation in which the Claimants were living in March 2016 was not unsuitable. The conclusions were based upon the social worker’s judgement that JB could meet the Claimants’ need for accommodation. The social worker states, at page 15 of the Assessment, that there is nothing to suggest that JB is not able to secure rental accommodation as she has done in the past. There is no indication that the social worker considered the March 2016 accommodation to be suitable.[65]If there had been any doubt, which in my judgment there was not, as to the basis upon which the assessment was made, it is laid to rest by the first paragraph of the letter of 3rd June 2016, in which it is said “The Council remains of the view that …. [S and J] …are not children in need and will not become children in need in the foreseeable future because their mother (‘the mother’) has the means and resources to avoid homelessness and destitution”.[66]The inference on which the alternative submissions are made cannot be drawn.[67]I reject this ground of claim.

Ground 2

[68]On behalf of the Claimants, it is submitted that the fact that they are at risk of having no accommodation at all in the near future constitutes a breach or imminent breach of Article 3 of the ECHR.[69]It is further submitted on behalf of the Claimants that the family’s situation is such that the failure to provide accommodation and support constitutes a breach of Article 8 of the ECHR. In particular it is submitted that the Claimants’ precarious living arrangements are an interference with their psychological integrity.[70]Mr Suterwalla submits that Article 3 ECHR would be breached if the Claimants were made ‘street homeless’. He accepts that the Claimants’ Article 3 ECHR rights would not be infringed if the Defendant rationally concluded that they would not be forced to sleep on the street.[71]In respect of Article 8 i) Mr Suterwalla accepts that there is no prospect of separation of the Claimants from their mother ii) Mr Suterwalla accepts that there would be no infringement of Article 8 if the family had to sleep on the kitchen floor for a matter of days, but submits that there would be if they had to do so for six months, as it would amount to an infringement of private life, in particular for the Claimant S.[72]Mr Paget submits that as the Defendant concluded that JB was able to look after her children and provide for their needs, including providing accommodation, there was no breach of Article 3 or Article 8.[73]As recognised in Anufrijeva it is difficult conceive of a situation where the predicament of an individual will be such that Article 8 requires him or her to be provided with welfare support, but that it is not severe enough to amount to an infringement of Article 3.[74]The real issue in this case is whether the Defendant was justified in concluding that, absent support, the Claimants would not be without accommodation.[75]When considering Ground 1, I have concluded that the Defendant’s assessment that there is nothing to suggest that JB is not able to secure rental accommodation in due course and to stay with friends or family until she does so, cannot be said to be irrational. Accordingly, on the basis of the Defendant’s assessment the Claimants will not be without accommodation, and therefore there is no infringement of Articles 3 and 8 of the ECHR.[76]I reject this ground of claim. Grounds 3 and 3A Ground 3

Grounds 3 and 3A

[77]On behalf of the Claimants it is submitted that the following irrelevant considerations were taken into account by the Defendant in making its assessment: i) The fact that JB did not provide full postcodes for the properties in which she and the Claimants stayed. ii) The allegation that JB did not permit a social worker to visit the family at one address where they were staying. iii) The allegation that JB did not allow a social worker to visit her place of work. iv) The fact that JB was unable to provide requested information in full.[78]The matters relied upon by the Claimants are set out in the Defendant’s letter of 3rd June 2014, in part (iv) of that letter.[79]In a witness statement dated 12th June 2016, JB responds to the matters set out in part (iv) of the 3rd June 2016 letter.[80]Mr Paget, for the Defendant, submits that all the matters set out in part (iv) of the 3rd June 2016 letter were matters for the decision maker and that there was no breach of any public law duty in setting out those matters in the decision letter. He further submits (in his written submissions produced after the oral hearing) that part (iv) of the 3rd June 2016 letter is independent from and separate to the decision that the Claimants were not children in need.[81]I first consider Mr Paget’s submission that part (iv) of the 3rd June 2016 letter was independent from and separate to the decision that the Claimants were not children in need. The first paragraph of the 3rd June 2016 letter, which I have set out at paragraph 32 above, states that the decision that the Claimants were not children in need was made for four broad reasons which are set out in the letter. Part (iv) of the letter sets out the fourth ‘broad reason’. As the Defendant itself states that the matters at part (iv) of the letter constituted one of the reasons for its decision that the Claimants were not children in need, I reject the submission that matters set out in part (iv) were independent from and separate to the decision.[82]The issue of whether the information provided by JB was reliable was capable of being relevant to the Defendant’s decision as to whether the Claimants were children in need.[83]The first matter referred to, at paragraph 10 of the 3rd June 2016 letter, was a failure to provide documents relating to the privately rented accommodation where JB and the Claimants had lived in the past, and a failure to provide evidence as to how the rent was paid.[84]The second matter referred to, at paragraph 11 of the 3rd June 2016 letter, was the fact that JB had given unreliable accounts of where she had lived and who had provided the accommodation.[85]The third matter referred to, at paragraph 12 of the 3rd June 2016 letter, was the fact that JB’s co-operation with the Defendant’s enquiries was limited, including a failure to provide wage slips, and details of income and expenditure.[86]The fourth matter referred to, at paragraph 13 of the 3rd June 2016 letter, was the fact that JB had provided inconsistent evidence, in particular in relation to her sisters, and their ability to assist her by providing accommodation.[87]The fifth matter referred to, at paragraph 14 of the 3rd June 2016 letter, was the fact that JB had shown a lack of honesty in her previous dealings with public bodies.[88]The sixth matter referred to, at paragraphs 15 and 16 of the 3rd June 2016 letter, was the fact that in the past, despite seeking assistance from the Defendant and others on grounds of destitution, JB had been able to provide for the Claimants.[89]If sufficient enquiries have been made by the local authority, and if as a result of those enquiries an applicant fails to explain a situation which prima facie appears to require some explanation, then a failure by an applicant to give sufficient information is capable of being a proper consideration for the local authority (R (O) v. LB of Lambeth at paragraph 21).[90]In this case there is an issue as to whether sufficient enquiries were made, and in particular whether, in relation to matters where a lack of information caused the Defendant concern, JB was given an opportunity provide that information.[91]I will consider Ground 3A before coming to a conclusion on Ground 3.

Ground 3A

[92]In the written submissions made, the Claimants made an application to add an additional ground, namely that the conclusion reached in part (iv) of the 3rd June 2016 letter that JB was unreliable was reached in a procedurally unfair manner. The Defendant opposes the application to add an additional ground, but does not seek to argue that it would suffer prejudice if the amendment were to be made.[93]Rule 54.15 of the Civil Procedure Rules provides that the court’s permission is required if a claimant seeks to rely on grounds other than those for which he has been given permission to proceed.[94]In their grounds of claim the Claimants contend that the Defendant adopted an unlawful procedural approach in relying on deficiencies in the information provided by JB.[95]During the course of the hearing, Mr Paget submitted that the complaints set out in part (iv) of the 3rd June 2016 letter were well founded at the time, and that aspects of the history were not explained at that stage.[96]The Claimants’ application to amend to take a point on procedural fairness arises, in part, in response to the submissions made by Mr Paget.[97]Both parties have made submissions on the new ground. As I have already noted, the Defendant does not argue that it would be prejudiced if the additional ground were to be added. In my judgment the overriding objective of enabling the court to deal with cases justly and at a proportionate cost would be served by allowing the amendment. Accordingly, in the exercise of my discretion, I allow the additional ground to be added.[98]The Claimants submit that the Defendant was not justified in relying on evidence and concerns relating to JB’s unreliability as that evidence and those concerns were not put to her so as to give her a chance to respond before any adverse inferences were drawn.[99]The Claimants place reliance on paragraph 20 of the judgment of Helen Mountfield QC in R (O) v. Lambeth where she said:
“20 Fairness of course demands that any concerns as to this are put to the applicant so that she has a chance to make observations before any adverse inferences are drawn from gaps in the evidence, but otherwise, the local authority is entitled to draw inferences of ‘non-destitution’ from the combination of (a) evidence that sources of support have existed in the past and (b) lack of satisfactory or convincing explanation as to why they will cease to exist in future.”
[100]The Defendant relies on paragraph 18 of the judgment in R(O) v. Lambeth, that it behoves an applicant to give as much information as possible to assist the decision maker in forming a conclusion on whether they are destitute. The Defendant submits that JB had not provided such information, in particular information relating to her housing history. In addition, the Defendant submits that JB had shown limited co-operation, by not providing details of her income and expenditure and wage slips, had provided inconsistent evidence, and had shown lack of honesty in the past.[101]In response, the Claimants submit that, prior to the 3rd June 2016 letter, JB had not been asked for information as to how she paid rent for accommodation, details of where she had been living, or her wage slips.[102]The Defendant accepts that fairness will often require that a person who may be adversely affected by a decision should have an opportunity to make representations before the decision is made. The Defendant submits: i) A local authority is not required to put its conclusions to an applicant for comment where he has been given a full opportunity to put forward his version of the facts (R v. Westminster CC ex parte Jaafer (1998) 30 H.L.R. 698 at page 704). ii) As the local authority had reached a view on JB’s approach to the assessment process it did not need to ask JB for her comments or representations on that view.[103]This ground of claim is not based upon a submission that the Defendant’s conclusions should have been put to JB before the decision was made, it is based upon a submission that its concerns about JB’s unreliability should have been put to her before any adverse inferences had been drawn.[104]This case can be distinguished from Jaafer as JB was not given a full opportunity to put forward her answers to the Defendant’s concerns before a conclusion was reached. In particular: i) JB was not asked for evidence as to how she paid the rent for accommodation in 2012, 2013 and 2015 (paragraphs 107 and 108 of JB’s First Witness Statement) ii) JB was not asked to provide her wage slips (paragraph 119 of JB’s First Witness Statement).[105]The unreliability of JB was not relied upon as a reason to support the finding that the Claimants were not children in need in the March 2016 Assessment. In the 3rd June 2016 letter at part (iv) the fact that JB is said to be unreliable is relied upon by the Defendant and reference is made to the case of R (Antwa) v. LB of Lambeth 10th March 2016 (unreported) and to R (A) v. LB of Lewisham 5th May 2016 (unreported). The author of the 3rd June 2016 letter states that the Claimants’ case is similar to those cases. It appears to me that the decision of the author of the 3rd June 2016 letter to rely upon the allegation of that JB was unreliable may have been unduly influenced by a desire to contend that the Claimants’ case was similar on the facts to Antwa.[106]In part (iv) of the 3rd June 2016 letter the Defendant came to conclusions on the reliability of JB based in part, on a failure to provide information which JB had not been asked to provide.[107]Concerns about the lack of information, in particular on how rent was paid in the past, and in relation to JB’s wages were not put to her before adverse inferences were drawn. In my judgment that was a procedural deficiency which caused unfairness to JB and to the Claimants.[108]That procedural deficiency which caused unfairness to JB and to the Claimants was an error of law.[109]I turn to my conclusion on Ground 3.[110]At paragraph 89 above I referred to paragraph 21 of the judgment in R(O) v. LB of Lambeth, where it was stated that if sufficient enquiries have been made by a local authority and if as a result of those enquiries an applicant for assistance fails to provide information to explain a situation which prima facie appears to require some explanation, the failure to do so can be a relevant consideration. In this case the Defendant did not make proper enquiries and in my judgment the defendant took into account irrelevant considerations, namely the failure to provide information in relation to how JB had paid rent in the past, and the failure to provide wage slips.

Ground 4

[111]On behalf of the Claimants it is submitted that the Defendant failed to take into account the following material considerations when assessing whether the Claimants were in need for the purposes of section 17(1) of the 1989 Act: i) The effect on the Claimants of sleeping on floors. The effect on the Claimants of not having private or quiet space. ii) The effect on the Claimants of not being wanted in the properties in which they were staying. iii) The effect on the Claimants of the uncertainty of where they would be sleeping in the future.[112]The matters identified are referred to in the Assessment: i) At page 9 reference is made to the fact that the Claimants were sleeping on the floor. ii) The fact that homelessness was impacting on the Claimants’ education and welfare was identified as a reason for assessment (at page 5). The effect on S’s family and social relationships and on her education were considered at page 9. iii) At page 11 reference is made to the fact that one of JB’s friends, who had allowed the Claimants and JB to stay at her home, had said that she and her daughter needed peace and would be asking the family to leave. iv) The fact that the Claimants and their mother have been moving from address to address is referred to in the Assessment including at pages 5 and 6.[113]The submission that certain material matters were not taken into account in the assessment is not made out on the facts.[114]I reject this ground of challenge.

Ground 5

[115]As I have already noted there is no dispute between the parties that the Defendant is a local authority to whom the Section 11 (of the 2004 Act) duty applies, and that the duty applied when making its assessment under section 17 of the 1989 Act.[116]In R (C,T,M and U) v LB of Southwark (at paragraph 15) it was held that the overarching obligation imposed by section 11 of the 2004 Act casts the evidential net rather wide and therefore a decision based upon a section 17 assessment should identify how the local authority has had regard to the need to safeguard and promote the welfare of children both individually and collectively.[117]Although he relies on section 11 of the 2004 Act, Mr Suterwalla accepted that the focus of the Defendant’s assessment was on the interests of both S and J.[118]The March 2016 Assessment includes a separate ‘profile and story’ for both S and J and includes an assessment of needs and risk for the children. Both safeguarding and welfare are considered in the social worker analysis and professional judgement section of the Assessment. The need to safeguard and promote the welfare of S and J and children generally was considered in the Assessment.[119]In my judgment it is clear that the Defendant did have regard to the need to safeguard and promote the welfare of children generally and to S and J in particular and that there was no breach of the duty imposed by section 11 of the 2004 Act.[120]I reject this ground of claim.

Section 31(2A) of the Senior Courts Act 1981

[121]I have found that grounds 3 and 3A are made out.[122]Mr Paget relies upon section 31(2A) of the Senior Courts Act 1981 which provides:
“(2A) The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.” (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”
[123]The Defendant in its letter dated 3rd June 2016 stated that it relied on four broad reasons for concluding that the Claimants were not children in need. One of the reasons was the unreliability of JB. I have held that the procedure adopted by the Defendant in arriving at its conclusion that JB was unreliable was unfair.[124]Given that the Defendant expressly states that it relied on four reasons, including unreliability of JB, I have concluded that it cannot be said to be highly likely that the outcome for the Claimants would not have been substantially different if an unfair procedure had not been adopted.

Conclusion

[125]The facts of this case are somewhat unusual in that the Defendant added to the reasons upon which the decision, that the Claimants were not children in need, was made. The addition to the reasons was made in the letter dated 3rd June 2016 which was written by a solicitor employed by the Defendant. I have held that the grounds of claim based mainly on the social worker’s March 2016 Assessment were not made out. The grounds of claim which succeeded were based, in large part, on the procedural unfairness which arose as a result of adding the additional reason, which was based in part on findings that the Claimants’ mother had not provided information, when she had not been told of the Defendant’s concern about lack of information.[126]For the reasons I have given, the application for judicial review succeeds on Grounds 3 and 3A and the Defendant’s decision not to treat the Claimants as children in need is quashed.

Cited in 8 later judgments