BC, R. (on the application of) [2016] EWHC 3156 (Admin)

[2016] EWHC 3156 (Admin)Case No CO/5424/2016Date 2 December 2016
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Before
MR EDWARD PEPPERALL QCSITTING AS A DEPUTY HIGH COURT JUDGE
Between
THE QUEENClaimantBIRMINGHAM CITY COUNCILDefendant
Sam Jacobs (instructed by Bhatia Best Limited) for ClaimantCatherine Rowlands (instructed by Birmingham City Council) for DefendantHearing Hearing date: 15 November 2016
Judgment ApprovedMR EDWARD PEPPERALL QC:
[1]On 26 October 2016, Birmingham City Council assessed that NM was not a child in need within its area within the meaning of s.17 of the Children Act 1989. Accordingly, the local authority has refused to provide him with accommodation. His mother, BC, seeks to challenge the Council’s decision by this application for judicial review.[2]In fact, these proceedings had already been issued on 25 October 2016. Complaint was originally made of an alleged failure to make an assessment under s.17.[3]On 26 October 2016, the application was considered by Mr Justice Green on the papers. The judge ordered that the application for permission to pursue these proceedings be heard on 28 October. Pending the permission hearing, Mr Justice Green ordered the local authority to provide accommodation to BC and NM.[4]The matter then came before His Honour Judge Simon Barker QC sitting as a High Court Judge on 28 October 2016. The judge declined to continue the interim injunction. Upon the local authority’s agreement not to take any time point, the judge allowed BC permission to amend her application in order to plead her challenge to the assessment of 26 October. Judge Barker QC gave further directions for the hearing of this matter and, in particular, ordered that neither the Claimant nor her son should be identified.[5]The matter came before me for a so-called rolled-up hearing on 15 November 2016. THE BACKGROUND[6]BC is a 37-year-old Jamaican national. She came to the UK in April 2001. Her visa was extended until 2008, but she has since remained in the UK unlawfully. She is an overstayer and, pursuant to s.115 of the Immigration & Asylum Act 1999, she has no recourse to public funds. Consequently, by schedule 3 of the Nationality, Immigration & Asylum Act 2002, BC is not entitled to the provision of support or assistance pursuant to, among other statutory powers, s.17 of the Children Act 1989.[7]NM is a 6-year-old schoolboy. He was born on 28 September 2010 and lives with his mother, BC. He has no contact with his father.[8]Until recently, BC and NM lived in London. Most recently they lived together in Bromley together with BC’s then partner. That relationship broke down and, in late June / early July 2016, BC came to live in Birmingham. Originally she moved in with her cousin, TG.[9]NM remained in London until around 10 October 2016 when he came to live with BC in Birmingham.[10]BC sought assistance from Birmingham City Council on 14 October 2016. THE LAW[11]Section 17(1) of the Children Act 1989 provides:
“It shall be 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.”
[12]Section 17(10) provides that a child is to 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.”
[13]It will be evident that the question is not one of objective fact but rather calls for evaluative judgment by the local authority: per Baroness Hale in R (A) v Croydon London Borough Council [2009] UKSC 8; [2009] 1 W.L.R. 2557, at [26].[14]Section 17(6) provides that the services provided by a local authority under the section may include the provision of accommodation. Indeed, a child without accommodation is a child in need: R (G) v Barnet London Borough Council [2003] UKHL 57; [2004] 2 A.C. 208, at [19]. Where a service is provided to a child in need, it may also be provided for his or her family if it is provided with a view to safeguarding or promoting the child’s welfare: s.17(3).[15]In R (C, T, M and U) v.LB of Southwark[2016] EWCA Civ 707, Ryder LJ summarised the established law on the effect of s.17 at [12]:
“12 It is settled law that the s.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 A.C. 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 s.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 s.17 … in the context of the duty in s.11 Children Act 2004 to have regard to the need to safeguard and promote the welfare of children.”
WITHIN THEIR AREA

WITHIN THEIR AREA

[16]In R (Stewart) v Wandsworth London Borough Council [2001] EWHC Admin 709; [2002] 1 F.L.R. 469, a mother and her three children had been housed in local authority accommodation owned and managed by Hammersmith but located in Lambeth. Meanwhile the children attended a school in Wandsworth. Upon the mother losing her local authority accommodation, she applied to each of the three authorities for an assessment of her children’s needs pursuant to s.17. Each denied owing any duty.[17]Mr Jack Beatson QC (as he then was), sitting as a Deputy High Court Judge, considered the meaning of the words “within their area” in s.17. Drawing on authorities under s.24 of the Act, Mr Beatson QC held, at [23], that the clear meaning of the words was that physical presence was required. Further, at [29], the deputy judge rejected a submission that physical presence, although necessary, was not of itself sufficient.[18]The issue arose in an acute way in R (J) v Worcestershire County Council [2014] EWCA Civ 1518; [2015] 1 W.L.R. 2825. The claimant’s family was part of the travelling fairground community. In a typical year, the claimant passed through 16 different local authority areas. In giving the leading judgment, King LJ cited Stewart with approval observing, at [13], that the duty to assess is triggered by the physical presence of a child in need in a local authority’s area and that nothing more is needed.[19]While she did not seek to challenge this statement of the law, Ms Rowlands queried how the Act operated in the case of a transient visit to a local authority area. In the course of her oral submissions, she gave the example of a child taking a train on a day trip to Westminster Abbey who might, certainly if travelling from Birmingham, pass through a number of different local authority areas. In my judgment, the answer to that submission is that the Act is not concerned with such trifling presence in an area. As Cobb J observed in R (AM) v Havering London Borough Council [2015] EWHC 1004 (Admin) at [42]:
“… it would … cause considerable confusion if the duties imposed by Part III [of the Children Act 1989] were deemed to hang on such a tenuous thread as a brief visit (even if by request) to attend an appointment in the area of the originating authority …”
[20]That is not, however, this case. NM has been living in Birmingham since around 10 October 2016. THE ASSESSMENT OF NEED[21]In R(O) v London Borough of Lambeth [2016] EWHC 937 (Admin), Helen Mountfield QC, sitting as a Deputy High Court Judge, explained the duty placed upon local authorities under s.17, at [16]-[21]:
“16 The duty to make reasonable enquiry is a duty to make those enquiries which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances. 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 s.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.”
[22]This helpful analysis was recently cited with approval by Mr Neil Cameron QC sitting as a Deputy High Court Judge in R (S & J) v London Borough of Haringey [2016] EWHC 2692 (Admin). In that case, the deputy judge accepted, at [53]-[54], a submission that the decision of the local authority should be subjected to close scrutiny.[23]In R (KM) v Cambridgeshire County Council [2012] UKSC 23; [2012] 3 All E.R. 1218, Lord Wilson said, at [36]:
“… in community care cases the intensity of the review will depend on the profundity of the impact of the determination.”
[24]Finding that such approach required a high intensity of review in that appeal, Lord Wilson referred to the need for close scrutiny of the decision, but added, still at [36]:
“On the other hand respect must be afforded to the distance between the functions of the decision-maker and of the reviewing court …”
THE APPROACH TO EVIDENCE

THE APPROACH TO EVIDENCE

[25]BC relies on three witness statements of Scott Laing, her solicitor, her own statement and a statement from her cousin, TG. In turn the local authority relies on three statements from Sarah Bennett.[26]In considering this evidence, I am not trying NM’s claim for assistance but rather reviewing the decision of the local authority. I am therefore concerned with establishing the evidence that was available to the decision-maker and the lawfulness of the grounds upon which assistance was refused in this case.[27]Insofar as there is a dispute between the parties, this application for judicial review is not an appropriate vehicle for determining disputed issues of fact.[28]It is a feature of this case that Ms Bennett seeks to explain the local authority’s decision in her statements. Leggatt J considered the proper approach to such evidence in R (MN) v London Borough of Southwark [2013] EWHC 1205 (Admin).

The judge observed, at [26]:

“I consider that little or no weight should be given to that evidence. Not only has the statement been prepared many months after the decision was made for the purpose of this litigation, with all the obvious dangers of ex post facto rationalisation which that involves but, more fundamentally, it seems to me that what a public authority decided should in principle be ascertained objectively by considering how the document communicating the decision should reasonably be understood, and not by enquiring into what the author of the document meant to say or what was privately in his mind at the time when he wrote the document.”
[29]Here, the time frame is rather more compressed. Nevertheless, Mr Jacobs is right to caution me against the dangers of relying on Ms Bennett’s evidence in order to construe the local authority’s decision.[30]Accordingly, I focus on the materials available to the local authority at the time of its decision and upon the decision document. In construing the local authority’s decision, the document should not be forensically picked apart as if it were a judgment, but I should look for its true meaning in a practical way remembering that it is the decision of social care experts and not lawyers. GROUND 1[31]BC criticises the Council’s reliance on the fact that she and her son had previously been based in Bromley. It is argued that this was an error of law and that physical presence in the Birmingham area, even if temporary or short lived, is sufficient.[32]At para. 42 of her Amended Statement of Facts and Grounds, BC argues:
“The Defendant’s error of law is not only relevant to the question of which local authority is responsible for the s.17 assessment. It is also relevant to the Defendant’s assessment that NM is not a child in need, as part of its reasoning is, in essence, that as the Claimant is refusing support to return to Bromley, she must have support available in Birmingham.”
[33]In response, Ms Rowlands pointed out that the Council had carried out a needs assessment and had not simply decided the matter on the basis that NM was not a child within Birmingham’s area. She argued that it had performed, and not avoided, its duty.[34]It is clear that the Council’s initial reaction to the claim for assistance under s.17 was to deny any obligation on the basis that NM was not a child in the local authority’s area: 34.1 By a letter dated 14 October 2016, Sarah Bennett, recorded the Council’s initial view:
“This is to confirm that BC … has presented to the NRF Team in Birmingham today and has taken part in an Asylum Seekers’ Screening Questionnaire. The outcome of the screening was negative. The evidence presented to us at this point suggested that BC’s need for support arose whilst she was a resident of a London Borough, Bromley. Birmingham City Council will not be offering BC any support at this time.”
Birmingham City Council will not be offering BC any support at this time.” 34.2 By an e-mail sent on 20 October 2016 in response to BC’s letter before action, Wajiha Shah, a solicitor in the Council’s Legal Services Department, referred to NM’s recent residence in London and observed that the local authority did not consider that it had a duty to open a child in need assessment. For completeness, the solicitor also recorded TG’s statement to Children’s Services that she would not evict BC and that she would continue to provide accommodation irrespective of her landlord’s position. 34.3 By a further letter dated 24 October 2016, Ms Bennett wrote:
“This is to confirm that BC presented herself and her young son NM to Birmingham City Council NRPF Team, seeking support due to her having no recourse to public funds. A screening was carried out and following this, it was clearly identified that BC and her son are long-standing residents of the Bromley Borough. Evidence produced by BC supports this. In respect of both health and education, it is also clear that registration is within Bromley, with NM still being enrolled in a Bromley School … BC has been supported by Birmingham City Council to return to Bromley, her area of origin in the UK, so that she can seek support from the responsible Local Authority.”
[35]This is consistent with Mr Laing’s evidence, at para. 7 of his first witness statement, that the local authority offered to provide transport back to Bromley.[36]The Council did, however, carry out a Family Assessment on 25-26 October 2016. In doing so, the Council set out the family history. It recorded that NM had stayed in London with his mother’s friend when she came to Birmingham in July 2016 but that he subsequently joined his mother in Birmingham on around 10 October.[37]In the course of the assessment, the Council explored NM’s links with both Birmingham and Bromley:37.1 It recorded that NM had not yet been registered in a Birmingham school. He remained registered with a Bromley school but had been absent for some two weeks.37.2 The assessment observed that BC was seeking accommodation and subsistence from Birmingham rather than “her own” local authority.37.3 The Council noted that neither BC nor her son had registered with a GP in the Birmingham area.[38]The assessment commented:
“There was therefore no evidence to support BC’s claim for support as a Birmingham resident. BC has accepted that she understands why she should be seeking this support from her local council in Bromley due to her connections there, however has rejected financial support offered to her by Birmingham City Council, to travel back to Bromley. It is my view that BC is choosing to remain in Birmingham with NM, and therefore has other options in respect of support.”
[39]Further, the assessment concluded:
“The outcome of this screening is negative due to lack of evidence in respect of BC and NM’s connectivity to Birmingham. Further opportunities have been provided … for BC to provide us with evidence of her connectivity to Birmingham, however BC has not been able to provide anything further, only documents strengthening her current connectivity to Bromley and the NRPF need arose in Bromley therefore Bromley would be deemed to have the duty and responsibility to NM and BC in respects to NRPF support. It also appears that BC is able to provide NM with his basic needs through her cousin’s support. They have continued to stay with TG and her family, and TG has been supportive of BC in all of her appointments at the office, i.e. providing transport by car. BC has been offered financial support to return to Bromley with NM, so that she can present to her local council there, however she has turned down this support, choosing instead to remain in Birmingham. This indicates to me that aside from returning to Bromley, BC has other options, and that she plans to support herself and NM in Birmingham with the help of her cousin.”
[40]The Council’s recommendation and plan of action included offering a “warm handover” to Bromley.[41]Finally, the assessment set out the manager’s decision. The manager commented:
“BC arrived for support after choosing to arrive in Birmingham rather than seek support from her own council and children’s services. This is not a good enough reason to present to another authority for assistance as set out in the NRPF National Guidance document issued by the Home Office.”
[42]After referring to unsuccessful efforts made to elicit information, the manager continued:
“I am satisfied that the social workers’ professional curiosity and lines of enquiry have been both sensitive and probing to try to establish genuine destitution and street homelessness that arose in Birmingham.”
[43]Ms Rowlands argued that the Council had been right to suggest that official guidance established that it was not good enough for a claimant to choose to arrive in a local authority area and pursue a claim for support rather than seeking support from his or her own local council. She referred me to the “Practice Guidance for Local Authorities assessing and supporting children & families and former looked-after children who have no recourse to public funds for support from local authorities under the Children Act 1989” issued by the No Recourse to Public Funds Network in December 2011. The guidance is endorsed by the Local Government Association.[44]At para. 5.1, under the heading “Establishing territorial responsibility” the guidance provides:
“The local authority area where the child/family was living when the need arose is responsible for assessing that family. Exceptions to this rule are when a child is: - accommodated by another local authority; - subject to a care order in another local authority … In situations where there is a dispute between local authorities over the ordinary residence of a family, this should not delay the provision of emergency accommodation where a child presents in need.”
[45]In my judgment the guidance is right in so far it goes. In the case of a child moving between areas, the first local authority would indeed be responsible for assessing need that arose while the child was living in its area. That is not, however, the same as saying that the second local authority has no such responsibility once the child has moved to its area.[46]By 26 October 2016, NM was living in Birmingham. As I have already set out above, physical presence is both necessary and of itself sufficient to establish that a child is within a local authority’s area. Therefore NM was, in my judgment, plainly a child within Birmingham City Council’s area within the meaning of s.17 at the time of its assessment. Accordingly, it fell to Birmingham, and not Bromley, to assess his needs pursuant to s.17.[47]The possible provision of accommodation and support by friends or family in the London area was of course a proper consideration. A child who presents in Birmingham but who has accommodation available to him in Bromley would still be a child present within Birmingham’s area, but might reasonably be found not to be in need given the options available to him. That, however, is different from approaching the assessment on the basis that the child should return to the area from whence he came and seek local authority support there.[48]Conscious that I should not judge the social workers’ assessment as if it were a judicial decision, I nevertheless find that the Council clearly took the view that NM’s claim should have been made to Bromley. Such reasoning was, for the reasons set out above, wrong in law. Accordingly, I find that the first ground is made out.[49]I consider the consequences of this erroneous approach later in this judgment. GROUND 2[50]BC also criticises the Council for failing to make sufficient enquiries before making its assessment of need. Mr Jacobs argued that the Council’s erroneous approach as to whether Bromley was the responsible authority was central to its reasoning and tainted the sufficiency of its own enquiry and therefore its assessment under s.17. Further, he argued that in consequence the assessment focused more on the extent of NM’s connections with Bromley (an immaterial question) rather than with whether he was a child in need.[51]Specifically, Mr Jacobs argued that the Council had failed to make proper enquiries as to:51.1 whether TG should be believed when she asserted that she was not willing to have BC and NM stay with her in breach of her tenancy agreement;51.2 the living and sleeping arrangements at TG’s house; and51.3 why BC was unable to provide the requested paperwork.[52]Ms Rowlands responded that the Council had conducted a full and measured assessment. She argued that there was no evidence of destitution and that it was for BC to persuade the Council of the need for support.[53]In particular, Ms Rowlands argued that the Council was entitled to rely on TG’s assurance that NM could stay. She denied that the Council failed to make sufficient enquiry into the sleeping arrangements, arguing that it would have been appropriate to seek further information if told that there was no bed for the child.[54]I reject the suggestion that BC had the burden of proving need. BC has the burden of establishing that there is a ground for judicial review: R v Reigate Justices, ex parte Curl [1991] C.O.D. 66, but the duty was on the local authority to carry out an assessment. As Ms Mountfield QC made clear in O at [18]-[21]:54.1 it behoves a parent seeking scarce public funds pursuant to s.17 to give as much information as possible to assist the decision maker;54.2 in the absence of adequate contact details for former sources of support or a satisfactory explanation as to why such support has dried up, a local authority might reasonably conclude that the family is not destitute;54.3 fairness demands that concerns are put to the applicant before any adverse inferences are drawn from such evidential gaps; but54.4 none of this absolves a local authority from its duty of proper enquiry.[55]In my judgment, the most significant matter that might well have justified a conclusion that NM was not a child in need was TG’s recorded statement to the local authority that she would provide accommodation to BC and NM notwithstanding the risk to her tenancy. While critical, such statement was, however, at odds with the core assertion that TG had turned BC and her son out. As to that:55.1 The alleged statement that TG would continue to house BC and her son appears to have been made on 14 October. Certainly it must have been before 20 October 2016 because it was referred to in Wajiha Shah’s e-mail of that date.55.2 Since then, BC had already formally made the point that TG had asked her to leave her property in her solicitor’s letter before action of 18 October 2016.55.3 Furthermore, by the time of the assessment, BC had in fact moved out of TG’s property. Indeed, she had been temporarily housed by the Council over the previous weekend.[56]Even if TG’s accommodation remained available to BC, it would have been important to identify whether there was space for NM and whether he had a bedroom. At para. 12 of her third statement, Ms Bennett says that on 14 October 2016 she asked BC and TG about the sleeping arrangements for BC and NM, and that she was told that they had their own room and beds to sleep in. However, the assessment of 14 October 2016 was very short and simply concluded that BC should be directing any application for assistance to Bromley. Certainly there is no contemporaneous evidence of this important enquiry being made or of the answer and such information was not referred to in the formal assessment of need. As to this point, Ms Bennett says, at para. 13 of her third statement, that the local authority gathered information over and above that contained in the assessment. The omission to include matters in the family assessment does not indicate that the enquiry was not made, but simply that the assessment had to be proportionate, relevant, timely and concise.[57]As Mr Jacobs argues, Ms Bennett does not explain where the other information was stored nor does she produce a contemporaneous written record of the same.[58]In response to the complaint that BC had not been asked to provide a copy of TG’s tenancy agreement, Ms Bennett responds at para. 7 of her third statement:
“When invited for an assessment interview, all clients are asked to bring with them paperwork supporting their claim, such as Home Office paperwork, bank statements, proof of address, and identification documentation. BC was given this opportunity at least twice … and it was made clear to her the importance of these items, BC stated that she had no bank account, that she had no current Home Office application therefore no paperwork. BC did provide identification both herself and NM on the second interview offered. No letter of warning regarding the alleged threat of eviction was presented despite TG being present in the office on each of the days BC attended interviews.”
[59]This was not a failure to co-operate. BC could not produce bank statements or Home Office documents that didn’t exist. There is no evidence that BC was asked for other documents, although Ms Bennett does indicate, at para. 9 of her third statement that she asked TG for evidence of the risk of eviction. Such evidence conflicts with TG’s contrary assertion at para. 10 of her own statement.[60]It was perfectly proper to investigate BC’s possible support network in Bromley. An important issue therefore was her most recent accommodation and why it was no longer available to her. BC explained that she had broken up with a partner. Ms Bennett says, at para. 2.3 of her first statement, that BC did not wish to share any information about this person or their relationship. For her part, BC counters, at para. 17 of her statement, that she was not asked such details. In fact, the local authority already had this information because the man was named in Mr Laing’s letter before action on 18 October.[61]I have given anxious consideration to this aspect of the case since there are a number of sound reasons why the local authority might, upon a proper assessment, have concluded that NM was not a child in need:61.1 First, subject to my observations above, there was some evidence that TG would provide him with accommodation in spite of the risk to her tenancy.61.2 Secondly, this was a case where the local authority might have concluded that BC had failed properly to explain her previous sources of support and to demonstrate that they had dried up.61.3 Thirdly, the possession of expensive clothing and a mobile phone might again indicate undeclared sources of support.[62]Each of these matters, however, called for investigation:62.1 As to the first, how did TG’s assurance fit with the allegation that BC and NM had to leave because she could not put her tenancy at risk? Specifically, the fact that BC and NM had left TG’s property by the time of the family assessment. How many bedrooms were there in TG’s home, and how many people were already living there?62.2 The second and third matters might have justified the local authority in concluding that BC had an undeclared support network. Such conclusion could, however, only fairly be drawn after proper investigation and, in particular, fairly putting these points to BC in order that she could address them.[63]While I find the point to be finally balanced, in my judgment, the principal factor in the local authority’s decision was its view that BC should have been seeking assistance from Bromley. I find that this error of law infected the Council’s reasoning and caused it to fail to make sufficiently diligent enquiries into the availability and suitability of accommodation. SECTION 31[64]That is not, however, the end of the matter. Section 31(2A) of the Senior Courts Act 1981 provides:
“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.”
[65]While a properly conducted assessment might well again conclude that NM was not a child in need, the Bromley question was, in my judgment, a central plank of the local authority’s reasoning. Further, as set out above, it led the Council to fail to make sufficiently diligent enquiry into other sources of support. I cannot therefore be satisfied that, but for the Council’s error of law, it is highly likely that the outcome would not have been substantially different. ALTERNATIVE REMEDY[66]Finally, Ms Rowlands submitted that relief should in any event be refused because BC’s remedy was to pursue an application for leave to remain. That might be the long-term solution, but I have no hesitation in finding that such application would do nothing to meet NM’s immediate needs. CONCLUSION[67]I therefore give permission for this application for judicial review and quash the local authority’s decision not to treat NM as a child in need.[68]On handing down this judgment, I shall invite the parties to address me on the terms of the appropriate order.

Cited in 2 later judgments