O, R (on the application of) v London Borough of Lambeth [2016] EWHC 937 (Admin)

Case No CO/5480/2015[2016] EWHC 937 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2016
Before
HELEN MOUNTFIELD QC(Sitting as a Deputy Judge of the High Court)
Between
R (on the application of)ClaimantOClaimantLONDON BOROUGH OF LAMBETHDefendant
Mr Matthew Lewin (instructed by Osbornes Solicitors) for ClaimantMs Sian Davies (instructed by Lambeth Legal Services) for DefendantHearing Hearing dates: 9 March 2016
JudgmentHelen Mountfield QC :Introduction
[1]This is a claim for judicial review of a decision of the Defendant local authority (Lambeth) dated 14 August 2015 to refuse to provide accommodation and support to the Claimant, O, and her mother PO (who is her litigation friend) under the provisions of section 17 Children Act 1989. In order to protect the Claimant’s identity, an order has been made that no information should be disclosed which identifies her, and I have referred to her as “O” or the Claimant, to her mother as PO, and to other people involved in the case by initials or otherwise by incomplete or pseudonymous names in the course of this judgment.[2]The Claimant’s case is that it was irrational for the assessing social worker for Lambeth to conclude that she and her mother were neither homeless nor destitute, and consequently that the assessment under s17 was unlawful.[3]The Claimant summarises the legal position in this way. She accepts that Lambeth has no power to offer accommodation or financial support to O or PO unless the Defendant concludes that the Claimant’s mother is unable to support the Claimant financially (i.e. that they are destitute) and/or that the family is homeless. The Claimant accepts that the assessment of that question is primarily one for the judgement of the social workers in the local authority area. However, the judgements in this case are tainted by failures of logic or enquiry and so fall to be quashed.[4]Permission was granted by HH Judge McKenna QC sitting as a deputy judge of the High Court on 8 January 2016. Interim relief requiring Lambeth to continue to accommodate the Claimant and her mother until the hearing was concluded was ordered by Mr Justice Leggatt on 10 November 2015.

The legal framework

[5]The legal framework is largely common ground. By section 17(1) Children Act 1989, it is the general duty of every local authority: i) to safeguard and promote the welfare of children within their area who are in need; and ii) so far as is consistent with that duty to promote the upbringing of such children by their families.[6]That duty does not impose an obligation upon a local authority to provide anything particular for any child. However, by virtue of section 17(3) Children Act 1989, a local authority has a wide discretion to provide a service for a particular 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 may include accommodation or the giving of assistance in kind or in cash: section 17(6) Children Act 1989.[7]A child whose parents are homeless and/or unable to support her is a child in need for the purposes of section 17 Children Act 1989, as explained by the court in R(Giwa) v London Borough of Lewisham [2015] EWHC 1934 (Admin) para [11].[8]Many applications for support under section 17 Children Act 1989 arise in cases where the reason a child’s parent is homeless or unable to support her child because she herself is a person with no recourse to public funds (known as “NRPF”) as a result of her immigration status.[9]That situation arises because schedule 3 of the Nationality, Immigration and Asylum Act 2002 provides that persons specified in paragraph 7 of that Schedule are not eligible for a range of benefits, including support or assistance under section 17 Children Act 1989 (Schedule 3 para 1(1)).[10]In this case, the Claimant’s mother PO is a person specified in paragraph 7 of the Schedule because she is here in breach of the immigration laws and is not an asylum seeker.[11]That is not the end of the matter though, because paragraph 2(1)(b) of the Schedule to the NIAA 2002 provides that the exclusion in paragraph 1 does not prevent the provision of support or assistance to a child. Further, paragraph 3 of the Schedule provides that the paragraph 1 exclusion does not prevent the exercise of a power or performance of a duty if and to the extent that its purpose or performance is necessary for the purpose of avoiding a breach of the person’s Convention rights.[12]In short, a local authority has power to provide services under section 17 to a child even if the child lacks immigration status; but it can only provide services to the child and her parent together (i.e. as a family) if and to the extent that failure to do so would breach the Convention rights of either the child or her mother: see R(MN) v London Borough of Hackney [2013] EWHC 1205 (Admin) at [19].[13]If a child, especially a young child, is here with a parent, and the family unit cannot be sent anywhere else, it will often constitute a breach of the child’s rights to respect for her private and family life not to accommodate her with her family. If the local authority must assume that the family cannot be removed from the jurisdiction consistently with its human rights (as to which see paragraph 39 below), then the effect of section 17 Children Act 1989 and duties not to breach Convention rights by reference to section 6 Human Rights Act 1998, read together with paragraphs 2 and 3 of schedule 3 of the Nationality Immigration and Asylum Act 2002, is consequently often to render the section 17 power to accommodate – in effect – a duty imposed on the local authority to act as provider of last resort in cases where a child and his or her family would otherwise be homeless or destitute.[14]That means that the threshold duty of enquiring whether the child of the family is a child ‘in need’ acquires a particular significance. The determination that the child is in need triggers powers which will come close to duties to make basic provision in cases where no other state support is available, and where therefore, in the absence of any private support, the consequence is destitution.[15]The duty of a local authority pursuant to paragraph 1 of schedule 2 to the Children Act 1989 is to take ‘reasonable steps to identify’ whether a child is in need. What those steps are is a matter for the local authority, subject to complying with public law requirements. Statutory guidance as to child in need assessments is set out in “Working Together to Safeguard Children”, dated March 2015, and departure from that guidance as to assessment without reasonable explanation would be a public law failing. However, that is not the suggestion in this case.[16]The duty to make reasonable enquiry is a duty to make those enquires 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 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.[22]I also note what was said by Leggatt J in the Hackney case at [26] as to the approach which the court should take to evidence in determining whether there has been such enquiry. He said that little or no weight should be given to witness statements prepared months after a decision had been taken for the purpose of litigation, with the obvious dangers of ex post facto rationalization; and more fundamentally:
“What a public authority decided should in principle be ascertained objectively by considering how the document communicating the decision would 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”
. That is the approach I have taken in considering the extent of enquiry undertaken on the facts of this case. The facts Immigration history

The facts

[23]The Claimant’s mother and litigation friend, PO, is a Nigerian national. She entered the UK on a six month visitor’s visa some time in 2007 and overstayed. On 26 August 2010, the Claimant was born in the United Kingdom. Her father has never lived with the Claimant.[24]At some point between 2007 and 2013 PO made an application for leave to remain. On 16 August 2013, her application was refused. She made a further application for leave to remain on 23 May 2015 on the basis of a five year parent/family life route, but her application for a fee exemption was refused and she did not pay the relevant fee, so the application was not validated by the Home Office.[25]According to updating information received by Lambeth from the Home Office, which did not appear to be in dispute, a further application for leave to remain was made on PO and O’s behalf on the basis of private and family life, on 12 August 2015. However, the application and fee waiver were rejected on 24 September 2015 because the application was made on the basis of 5 year parent/partner rules which included minimum financial requirements and in respect of which no fee waiver was available. The Home Office said that there had been no challenge to that decision and the time for any such challenge had expired. Accordingly, as appeared to be common ground, PO has no outstanding application for leave to remain, although her counsel indicated at the hearing that she was taking advice on the question of whether to make a further application.

Assessment and litigation history

[26]PO and the Claimant first applied to Lambeth for support under the Children Act 1989 in April 2015. A First Needs Assessment was carried out by Lambeth’s No Recourse to Public Funds (NRPF) Team, which concluded that the Claimant and her mother were not destitute at that time.[27]A second NRPF Assessment was started in July 2015, and in the meantime, PO and the Claimant were accommodated by Lambeth on an emergency basis. The second NRPF Assessment was dated 14 August 2015, but further enquiries and reviews meant it was not in fact finalized until October 2015. At the conclusion of that second assessment, on 28 October 2015, Lambeth concluded that PO and the Claimant were not destitute. That decision and the consequence that interim accommodation would be terminated were communicated to PO at a meeting on 28 October 2015.[28]On 3 November 2015, a pre-action protocol letter was sent on the Claimant’s behalf, but received a negative response from Lambeth on 5 November 2015. The application for judicial review and request for urgent consideration were sent to the court on 10 November 2015, and Mr Justice Leggatt made an interim order requiring Lambeth to continue to provide housing and support on an interim basis until this hearing.[29]Since permission was granted on 16 January 2016, there have been further developments. Lambeth had obtained from the Home Office updated information on the mother’s immigration status outlined in paragraph 23 above.[30]In consequence, Lambeth informed the court that the Council is now satisfied that the current position is that there is no immigration application pending, on human rights grounds or otherwise. The Council has therefore completed a Human Rights Assessment in order to determine whether the Claimant’s needs can be met should she relocate to Nigeria with her mother; and also whether any breach of human rights if the family were to remain in the UK could be avoided if the family were to relocate to Nigeria, with assistance to do so provided either by the Home Office Assisted Voluntary Return Programme or by the Council itself.[31]This assessment had been completed in early March. It concluded that even if – contrary to the Council’s view as set out in its July-October 2015 assessment – O would be a child in need if she were to remain in the UK – the family could avoid any breach of human rights, and the needs of the family could be met, by the family relocating to Nigeria.[32]The human rights assessment was (as Ms Davies for Lambeth put it in her skeleton argument) a ‘belt and braces’ exercise. The Council’s primary position was and is that O is not a child in need even if she remains in the UK. However, I was invited to consider this further assessment in relation to my exercise of discretion. In short, it was said that even if, contrary to Lambeth’s case, the Claimant was right to have identified flaws in the July-October 2015 assessment, matters had now moved on. The human rights assessment, based on the up to date immigration position, concluded for further reasons that the provision of support was not necessary to avoid any breach of PO or O’s human rights to provide support, and so the Council is therefore prohibited from providing it by virtue of schedule 3 paras 1(1)(g) and (3) Nationality Immigration and Asylum Act 2002. So even if I did find an error of law, it was said, I should refuse relief as the matter was now academic.[33]I was invited by Mr Lewin, counsel for O, to ignore these developments as they had been communicated only on 2 March 2016. However, it seemed to me that this was an unrealistic approach. The human rights assessment would only become relevant, if at all, if I came to considering the question of relief. But it was artificial for me to close my eyes to its existence. Mr Lewin had his client and her litigation friend in court at the hearing on 9 March, and I gave him an opportunity to take instructions and to provide evidence in relation to the human rights assessment if so advised. He did not do so.

Accounts of housing and subsistence history

[34]The account of how the Claimant’s mother, PO and O, had been accommodated and how she and O had lived was not common ground.[35]The account which PO gave the Defendant during the NRPF assessments is as follows. Until the winter of 2010, she was accommodated and financially supported by her sister and her sister’s husband. PO’s sister sadly died on 2 September 2010, and during the winter of 2010, PO and the Claimant lived at various addresses.[36]From late 2010 until December 2012, the Claimant and PO lived with Mr and Mrs E and their adopted son Michael. Mrs E died in December 2015.[37]From December 2012 until July 2015, the Claimant and PO lived with Ms J, although (in answer to questions concerning the second NRFP assessment) PO said that they occasionally stayed with the E family as guests. On the weekend of 11-12 July 2015, PO said that she and the Claimant were evicted from accommodation with Ms J, and presented to Lambeth as homeless. They were accommodated by Lambeth on an emergency basis from that weekend, and continued to be so accommodated at the date of the hearing. The content of the assessments The first NRPF assessment – April 2015

The content of the assessments

[38]The first NRPF assessment was not the subject of this challenge, but provides essential background to the second one, which is.[39]At the time when PO first presented to Lambeth seeking support under the Children Act 1989, she said she had a pending application for leave to remain in the UK. The significance of that was that, in keeping with the decision of the Court of Appeal in Clue v Birmingham CC [2010] EWCA Civ 460, save in obviously hopeless or abusive cases, the local authority was not permitted to prejudge the outcome of that application. The first NRPF assessment was therefore limited to assessing the question of whether the family needed support to remain in the UK. That was also the case for the second NRPF assessment, at which Lambeth had no up to date information about the content of the immigration application. It was only once the local authority knew that there were no live immigration claims, which it established from information obtained from the Home Office after this application for judicial review was lodged, that the local authority was also permitted to consider whether the child’s needs could be met and any breach of human rights avoided by assisting the family to return to its country of origin: see R(Kimani) v London Borough of Lambeth [2003] EWCA Civ 1150, [2004] 1 WLR 272.[40]At the first NRPF assessment, Lambeth’s assessing social worker looked at financial information provided by PO and concluded that the family was not in need, because the mother’s bank statements showed significant income (of over £9000 between 25 March 2014 and 15 April 2015). The social worker assessed that PO was capable of meeting O’s needs with this income. The assessment at that date also said that the family was receipt of benefits obtained via Ms J. Ms J answered questions put to her by the assessing social worker in relation to the first assessment. At that date Ms J was accommodating the family, and was apparently claiming Child Tax Credit and Child Benefit for O as a child present in her household, which was either being used in lieu of rent or being paid to PO to assist in looking after O and paying for her needs.

The Second NRPF assessment

[41]The family presented again seeking support in August 2015. PO again provided bank statements from the date of the first assessment. This time, these showed no income. They continued to be accommodated by Ms J.[42]However, despite the situation in the bank statements, the assessing social worker concluded that O and PO were not destitute. Rather, he inferred that the previous sources of support on which PO and O had lived before presenting to the local authority remained available, but that between the first and second assessments, PO had ceased to have funds paid into her bank account to avoid them being visible and to present a more compelling (but false) account of destitution.[43]This was based on the following enquiries: i) The accounts given in the first NRPF assessment dated April 2015; ii) The assessing social worker visited O and PO in their interim accommodation and questioned PO on 17 July 2015. She was asked about apparent inconsistencies in her account on 11 September 2015. The assessing social worker visited PO and met her again on 7 September 2015 and invited her to comment on the draft assessment. At this meeting, various questions were put to PO. In particular: a) One of the addresses which PO said they had lived when O was born did not exist. This was put to PO and she provided no explanation. b) PO had provided bank account details which showed that – unlike in the earlier assessment where she had received a number of payments from an Eze CC, there were no such payments. She was asked if this was O’s father who was also called Eze. She said not, but would not provide a surname for Eze CC. c) PO said that the money which had been seen going through her account in the first assessment was money she had been given by Eze CC and CO, but this was to give to someone called “Abby”. When challenged as to why she had then spent this money, PO said she was meant to give it to Abby but had spent it on herself. (PO now accepts that this was not a true account: she now says she was in fact paid for working by Eze CC and CO, but gave an untrue account to protect them because this was illegal work, in breach of her presence conditions in the UK). d) She was specifically asked for her views of the assessment but maintained that she was destitute. She was offered an opportunity to respond to or correct any issues with which she specifically disagreed but did not do so. iii) Further, on 11 August 2015 – the assessing social worker spoke to O privately without her mother hearing the conversation. He asked her where she went by train and O answered that “they go by train to visit Uncle Michael [E]”. She added that they sometimes stay with Uncle Michael”. This was inconsistent with what O’s mother, PO, had told the social worker, which was that they had not stayed with Michael E since his mother had died. This apparent inconsistency was put to the mother, who said that O was wrong. iv) Michael E, Eze CC and Ms J were all contacted and asked to answer questions about this, but did not co-operate or provide full answers to enquiries. v) PO was asked to provide contact details for Eze CC so that the assessing social worker could ask him questions but she was very cagey about doing so and would only show the social worker the telephone number on her phone after she had been to the bathroom with her phone and returned. Only a mobile phone number was provided as a source of contact for “Eze CC”. vi) A meeting was also convened on 20 October 2015, between PO, the assessing social worker’s team manager, the service manager and the mother’s representative to discus the mother’s complaint about the assessment outcome. She was invited to give any further information but declined to do so. Grounds Ground 1

Grounds

[44]The first ground of challenge is that the finding as to destitution was irrational. It was submitted that there was no basis in the evidence for the assessor’s conclusion that Eze CC and CO continued to provide financial subsistence to the family after PO’s bank statements showed that payments from them ceased in March 2015.[45]However, in my judgement, the assessing social worker was entitled not to be satisfied that the family was destitute. He could rationally conclude that Ms O continued to have sources of income available to her, from the combination of(a) the fact that a reasonable level of financial support had been available until March 2015 and was apparent on her bank statements, but that(b) payments through the account immediately ceased after a first negative assessment with no satisfactory explanation, and(c) that PO had not co-operated with further reasonable enquiries in relation to both O’s father Eze and Eze CC, and as to why her sources of income had apparently ceased. That combination of evidence formed a rational basis to conclude that the assessing social worker could not be satisfied that PO and O were destitute.[46]In particular, Ms O was not truthful about the fact that her source of visible income from Eze CC and CO until March 2015 was work. If that was the case, and her work had stopped, she could have explained that to the social worker, or asked Eze CC to do so in a straightforward way. But she offered no satisfactory explanation for this.[47]Mr Lewin suggested other enquiries that Lambeth could have undertaken (“proactive investigation” into the family’s financial circumstances), but I find on the facts that in fact the assessing social worker did attempt to do this. It is not realistic, and was certainly not a legal duty, for the social worker to seek to enquire into expenditure patterns and I accept that it would have been difficult for him to do so.

Ground 2

[48]The second ground of challenge was to the rationality of Lambeth’s conclusion that O and PO did not require accommodation because it was assessed that PO had access to a more extensive network of support available to her than she was prepared to disclose in the assessment and that people in that network could continue to accommodate her.[49]However, I find that this was a reasonable inference to draw from the combination of the following: i) The fact that PO had been assisted by friends with accommodation for the past five years since O’s birth; ii) O’s explanation that they sometimes stayed with the E family and “uncle Michael” which was apparently inconsistent with PO’s case that she had not stayed at the E family household since Mrs E’s death when O was only two years old; iii) Michael E’s failure to respond to enquiries, and Ms J’s failure to respond to further enquiries (having co-operated with the first NRPF assessment); iv) The lack of explanation for why Ms J would not continue to accommodate PO and O which she had been doing at the time of the first assessment; v) Lambeth’s doubts as to PO’s credibility in the light of her implausible initial account of why there had been, in April 2015, money in her account (which she has since admitted was untrue) and apparent inconsistencies in her evidence, as noted above.[50]Looking at the impugned NRPF assessment holistically, as I must, I find that there was adequately detailed and thorough enquiry, and that the conclusions which the assessing social worker drew from the fact of support previously having been available over a long time; gaps and inconsistencies in the evidence; and lack of explanation for the sudden withdrawal of this support cannot be castigated as irrational.[51]For these reasons, I must dismiss the application for judicial review. That conclusion makes it unnecessary to consider whether, had I found any error of law in Lambeth’s approach, I would have declined to award relief in the exercise of my discretion either because of the mother’s dishonesty, or because the impugned NRPF assessment may now have been rendered academic by the Human Rights Assessment dated 2 March 2015.[52]I note that the court was given an undertaking by counsel for Lambeth that the support which has been provided for PO and O will remain in place until 14 days after the handing down of my order in this case. I also note that I was told that if PO signs a formal undertaking in which she accepts that she and O can be returned to Nigeria and takes steps to co-operate with Lambeth in arranging a facilitated return, her interim accommodation may be provided for a reasonable period pending her return. Those seem to me to be sensible, humane and appropriate undertakings.

Cited in 16 later judgments

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