J and L, R (on the application of) v London Borough of Hillingdon [2017] EWHC 3411 (Admin)

Case No CO/3179/2017[2017] EWHC 3411 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 December 2017
Before
THE HONOURABLE MR JUSTICE NICKLIN
Between
R (on the application of J and L)ClaimantsLondon Borough of HillingdonDefendant
Ian Wise QC (instructed by Hopkin Murray Beskine) for ClaimantsMatt Hutchings QC (instructed by the Borough Solicitor) for DefendantHearing Hearing date: 13 December 2017
JudgmentThe Honourable Mr Justice Nicklin :
[1]These judicial review proceedings essentially challenge the Defendant’s refusal to provide housing to the Claimants. Permission was granted by Asplin LJ on 30 November 2017. She expedited the hearing. The urgency of the matter will become apparent.[2]The First Claimant, J, is a 27-year-old single parent caring for L, her eight-year-old son. J has a history of depression resulting from prolonged periods of abuse when she was a child. She is heavily dependent upon her family (who live locally) for emotional and practical support.[3]L, the Second Claimant, suffers from a range of disabilities including autism, global development delay, learning difficulties, long-standing ataxia and uncontrolled epilepsy. L receives Disability Living Allowance at the higher rate both for care and mobility. His ataxia means that he is very unsteady and he frequently trips and falls. L is prone to frequent and severe seizures without warning. His learning difficulties mean that his mental age is several years lower than his chronological age.[4]L has poor sleep patterns and wakes up at least five times during the night. He has a prescribed wheelchair which he uses outside. This is required when he is tired, especially after a seizure.[5]The Claimants currently live in a privately rented bungalow in the London Borough of Hillingdon. L’s wheelchair does not fit through the doors of the bungalow and no adjustments have been made to the building to accommodate L. There have been ongoing disrepair issues with the property, including dampness and mould. The bungalow is also in an area, near Heathrow, that is due for major redevelopment. The land surrounding the Claimant’s bungalow has been acquired for this redevelopment. The Claimants’ landlord is engaged in negotiations to sell his land, and has informed that Claimants that he will require possession of the bungalow when the land has been sold. There is, as a result, no incentive for the landlord to address the issues of disrepair or to carry out any modifications to the Claimants’ home.[6]The bungalow is situated next to an industrial car park by the airport which is used by commercial vehicles. There is no fence or other protective barrier between the car park and the bungalow. Cars come and go 24 hours a day, seven days a week. In front of the bungalow is a busy road. There is no safe place for the L to transfer between his wheelchair and car. As a result of his autism, L has no sense of danger and, in the past, has run out in front of approaching vehicles on the busy main road. His delayed cognitive processing means that, if he does, he is not able to respond in time to an instruction to “stop!”, thereby putting him in further danger.[7]J made an application to be placed on the housing register under Part VI of the Housing Act 1996 on 25 September 2015. In that application, she stated that she was a single mother with a disabled son. She provided details of L’s disabilities and also set out the problems with her current accommodation (disrepair, lack of adaptation for L’s needs and the dangers associated with the proximity of the busy road).[8]In late October 2015, at the Defendant’s request, J completed a medical assessment form providing further details of the range of difficulties faced by L arising from his disabilities and the impact on the current accommodation on his medical condition and needs.[9]On 16 November 2015, the Defendant made a decision that the Claimants had “no identifiable housing need” because it was stated that they were “suitably housed” at their current accommodation and that there were no concerns that the bungalow was overcrowded. On 3 December 2015, J asked for a review of that decision.[10]On 14 December 2015, an occupational therapist from L’s primary school, wrote to the Defendant’s ‘Children with Disabilities Team’ to request an assessment of L in his home in view of concerns over the suitability of the accommodation to meet his disabilities and associated needs and the safety of the environment immediately around the bungalow.[11]On 3 February 2016, an occupational therapy assessment was completed (“the First OT Assessment”). The First OT Assessment identified similar issues that had been set out in the report of L’s school’s occupational therapist, including L’s poor coordination, his tendency to lose his balance and his uncontrolled and unexpected seizures. The First OT Assessment also noted that L’s poor sleep was being made worse by the bungalow’s location adjacent to the car park and associated vehicle movements. It also raised concerns about the safety risks posed to L given the bungalow’s location next to a busy road. In particular, it noted the risk to L when transferring from the house to the car (and back).[12]The First OT Assessment made a series of recommendations: i) J required a future home that has access that is either level or adapted to facilitate access with a wheelchair; ii) J required a safe place to complete transfer into and out of a car; iii) J required level access to a shower (to reduce the risk of drowning during a seizure); iv) J required enough space at home for his specialist equipment; v) J would benefit from easy access to a toilet; and vi) J would benefit from an enclosed level garden to play and continue to develop.[13]The Defendant considered the First OT Assessment but, on 11 April 2016, it maintained its decision that the Claimants had no identified housing needs and stated the following: i) in respect of the disrepair, that could be addressed by the private sector housing team of the Defendant; ii) J could use the bath as a shower by using an over-bath shower attachment; iii) there was nothing that the Defendant could do about the general noise levels, but if the noise amounted to anti-social behaviour, the Defendant’s anti-social behaviour team could be contacted by the Claimants; and iv) even if the landlord was going to sell the property, he would need to obtain an order for eviction from a court. In the meantime, J could contact the Defendant’s ‘Homelessness Prevention Team’ for advice and could herself start looking for alternative privately rented accommodation.[14]J did not have access to legal advice at the time of this decision.[15]On 27 February 2017, J reapplied to join the Defendant’s housing register as the family’s accommodation situation remained difficult. She explained that L needed a level access property to enable easy transfer to and from the house when in his wheelchair. J again explained that the bungalow’s location next to the busy car park posed a danger to L who, on occasions, had run into the road because he had little awareness of his own safety.[16]The Defendant did not respond to J’s renewed application. J then sought legal advice.[17]On 3 April 2017, the Claimants’ solicitors sent a letter before claim to the Defendant complaining that the failure to deal with L’s urgent need for safe and appropriate accommodation was a breach of their duties under both Parts 6 and 7 of the Housing Act 1996. The letter also contended that the Defendant was in breach of the duties that it owed to L as a children’s services authority and stated:
“The family desperately needs a suitable home, and support, both to assist them in managing their current home and long term, to ensure that [L’s] multiple needs are met and that his mother has support with his care and her own needs”
. The steps that the Claimants’ solicitors required the Defendant to carry out were identified as follows: i) to determine the Claimant’s housing register application, assessed in accordance with the Defendant’s published scheme; ii) to confirm that the Defendant would immediately commence inquiries into J’s Part VII Housing Act 1996 application (homelessness), and provide details of the steps that it would be taking to discharge its duty under s.188(1); iii) to carry out an assessment of L’s need for services in accordance with s.17 Children Act 1989 and to confirm that the Defendant accepted that L was a ‘child in need’ by reason of his disabilities; iv) to provide an effective plan, identifying L’s needs and how it was proposed that they would be met; such plan should address the urgent accommodation needs as well as the need for other services and support; v) to confirm that the Defendant would now carry out a parent carer’s assessment, and provide a time by which that would be completed; and vi) to ensure that, in relation to the steps identified in (i) to (v), that the Defendant complied with s.11 Children Act 2004 and ensured that there was liaison between the housing and children services departments of the Defendant as required by R (M and A) –v- London Borough of Islington [2016] EWHC 332 (Admin) [14].[18]On 18 April 2017, the Defendant confirmed by letter that it determined J’s application but had again assessed J and L as “having no identified housing need” because they lived in a two-bedroom bungalow which met their needs for two bedrooms and that they had access to a garden. The decision letter stated that the housing application had relied upon medical evidence and the First OT Assessment both of which had been considered previously and that there had been no change in J and L’s circumstances.[19]That same day, and apparently unaware of the negative decision letter, the legal department of the Defendant also wrote to the Claimants’ solicitors to state that J’s housing application was “currently being processed” and had been “passed onto [sic] a medical advisor”. Assurance was given that as soon as the medical opinion was received the housing department of the Defendant would liaise with the children’s services department to establish whether the further information needed to be taken into account. It was anticipated that a response would be provided within 2-3 weeks. As to J’s contention that she was homeless, the Defendant responded that as she had not yet received any notice to quit she was neither homeless nor threatened with homelessness. Nevertheless, her claim that it was, in the particular circumstances, unreasonable for her to continue to occupy the bungalow would be considered by an officer in the housing department.[20]Also on 18 April 2017, the Defendant provided J with a copy of a second occupational therapy report (“the Second OT Assessment”). This report corroborated the concerns that J had raised in her housing application, namely that L had no sense of danger, had run off at times “posing a large risk with the lorries” and had “run in to the road and away from his mother”. The long-term recommendation of the Second OT Assessment was for the family to move to a 2-bed flat with level access shower.[21]By an email dated 3 May 2017, the Claimant’s solicitors sent copies of the 18 April 2017 negative housing decision and the Second OT Assessment of the same date and requested the Defendant carry out a review of the housing decision. No response was provided to this email.

The Child and Family Assessment: 5 June 2017

[22]There was substantial pre-issue correspondence, but, on 6 July 2017 these proceedings were issued. That same day, the Defendant provided to the Claimants a child and family assessment (actually dated 5 June 2017) (“the C&F Assessment”). The C&F Assessment is a principal target in the Claimants’ judicial review application, so I need to set out, in some detail, what it said.[23]The reason for doing the assessment was recorded:
“This request was made for an assessment as part of [a] housing application for [J] to be provided with an alternate accommodation as she was of the opinion that he current home does not meet the needs of the family.”
It is important to note from this that it was recognised that (a) the focus of the concern was the Claimants’ accommodation (rather than any concerns over J’s ability to care for L); and (b) the report was likely to be used by the housing department as a significant evidence base for its decision on J’s housing application.[24]In preparing the report, the social worker had conducted home visits to speak to J and to observe L at home. It was clearly acknowledged and understood that L was a child in need (within the terms of s.17 Children Act 1989) as a result of his disabilities. In particular it was noted: i) “[L] requires constant and continuous support throughout the whole school day, to and from transport. He requires support to … keep him safe”; and ii) “… [L] has limited sense of danger” and, as a result, J “ensures that [he] is always under adult supervision…”[25]In the section dealing specifically with housing, the following was recorded in the C&F Assessment: “The family has been living at their current residence since 2013 which is privately rented. The family’s residential unit consists of a 2-bedroomed bungalow with kitchen, bathroom and living area. There is also a garden within the property. There is a ramp which enables wheelchair access to the home. [J] is of the opinion that the house cannot meet the needs of the family and requires adaptations, especially in the bathroom. She has approached her landlord, who has advised her that he plans to sell the house and was currently in negotiations with the developers for a selling price. She advised that this state of affairs had resulted in reluctance to adapt the property on the part of the landlord as he felt that this was a wasteful expenditure. [J] stated that she since approached the Local Authority who had advised her that, for adaptations to be commissioned, she had to apply for a Disabled Facilities Grant (DFG). [J] is however, not eligible to apply for the DFG as it is only available to fund adaptations when the disabled person will continue living in the property for the next 5 years. [J] indicated that the reluctance of her landlord to carry out the necessary adaptations and her ineligibility to apply for DFG had resulted in the following risks; Access The home is not fenced and is adjacent to a drive way used by an airport car park company. The location of the house, coupled by the fact that [L] has no danger awareness poses a health and safety risk for [L]. [J] advised that she had been nearly run over by a speeding vehicle in the past and her cat was run over some years back. [J] has to manage this risk on a daily basis, as supervising [L] is a parental responsibility that a parent of any 7-year-old child is expected to manage. Bath Information obtained from Occupational Therapist report dated 03/02/2016… indicates that [L] is not able to access the bath independently. The report further indicates that, in the past, [L] has experienced multiple seizuers in the bath. This therefore means that [L] is not able to develop any independence in bathing due to the potential risk of drowning due to a seizure. According to the Occupational Therapist report, this risk can be best managed by the provision of a level access shower as it would reduce the risk of drowning due to a seizure and increase independence to manage his personal care needs. This course of action cannot be pursued because [J] is not in a position to secure a 5 year lease which will enable her to apply for the Disabled Facilities Grant (DFG) to fund the adaptations recommended by the Occupational Therapist. Under the current circumstances to minimize the risk during an epileptic seizure, [J] ensures that she bathes [L] and ensures that he takes his medication as prescribed. [L] has been seizure free since March 2015. Noise The home is close to a commercial airport car park that is in uses 24 hours a day. [L] is on the autistic spectrum and [J] indicated that the noise produced by the vehicles and the heavy duty gate constantly create sensory discomfort for Lucas. However, the Occupational Therapist report does not make reference to the fact that any sensory discomfort can be suffered as a result of the sound produced by moving vehicles outside the family home. Access Bath

Noise

[26]In this section, the author also noted that J had made a housing application under Part VII of the Housing Act (homelessness). Subsequently, the Defendant refused to accommodate the Claimants under Part VII, finding that they were not “homeless”. That decision is being appealed to the County Court. This separate decision is not strictly relevant to the decision the Court has to make on this application for judicial review. I have noted it because it has been referred to in the submissions that have been made by the parties and I deal with it, briefly, below (paragraph 76).[27]There next follows a section headed “What are you worried about?”. Counsel are agreed that the “you” in this question is directed to the social worker who is writing the report. From the structure of the form, that appears to be correct. The following is recorded: i) In the section “Danger/Harm”:
“… [L] has been diagnosed with autism and epilepsy. He is not aware of what is safe and unsafe for him. He is very active, without appropriate supervision he can be at risk of physical harm.” ii) In the section “Complicating Factors/Grey Areas”: “[J] is of the opinion that the family’s residential unit cannot meet [L]’s needs and requires alternate accommodation to be sought. Hillingdon Housing team initially did not accept the family’s application as they were of the view that current accommodation is meeting [the] family’s needs; however they have now accepted [the] family’s rehousing application.” iii) In the section “What is working well: Existing Safety”: “… [L] is always under adult supervision at home and at school.” iv) In the section “Analysis of the Above Information”: “… Based on the information gathered from [J], professionals and my observation [L]’s behaviour at home, it is evident that [L] can be challenging in different settings. [L] is a disabled child and therefore a child in need for the purposes of section 17 Children Act 1989. The purpose of this assessment has been [to] consider whether [L]’s requires support to meet [his needs] arising out of his disability including consideration as to whether it is necessary to make arrangements for services pursuant to s2 Chronically Sick and Disabled Persons Act 1970. In completing this assessment I have taken into account the views of [L]’s family as well as the professionals that surround the child. I have relied upon my own observations of the family. The picture painted by [L]’s mother, professionals and my own observations [has] been that [L]’s needs are adequately met with the basket of existing universal services in the following manner… In respect of the family’s housing, despite the mother’s efforts the landlord has refused adaptations to be made on the family home. Although there are risks which present to [L] within his current accommodation, these are currently being managed by the supervision put in place by his mother. I am of the view that this is therefore a tolerable risk pending alternative accommodation being sought. The Children Act cannot be used to provide a remedy where one is provided for elsewhere in law. In respect of accommodation, the family may seek to remedy their situation either in the social housing sector or by way of relying on welfare to obtain suitable private sector housing… I understand a decision on the housing application is currently pending and I have written a letter in support of the same. I do not consider the family’s current housing situation is of such urgency that it would require action outside the usual housing application and bidding process. I believe that the risks to the child can be successfully met by the measures put in place by the mother in their current accommodation.”
(emphasis added)[28]In the section “Recommendations and Decisions”, the following is recorded:
“[J] has the parental capacity to adequately meet [L]’s bio-psychological needs without formal support… It is recommended that the case be closed to social services.”
[29]The final section of the C&F Assessment included the “C&F Plan”. In tabular form, this records the identified risks, desired outcome, the action to be taken (by whom and when) and how it will be known that the outcome has been achieved. Relevant to this case are the following entries: What are we concerned about? [L] is not aware of what is safe and unsafe for him. He is very active. Without appropriate supervision he can be at risk of physical harm. What outcome do we want to see for the Child (what does safe look like for this Child) [L] not suffering any bodily injuries. What action will be undertaken to achieve this outcome. [J] is to ensure that [L] is under adult supervision at all times. Who is responsible (state name of individual) [J] and school When will this be done [blank] How will we know when this outcome has been achieved No reports of [L] obtaining medical attention for avoidable injuries[30]The letter that is referred to by the social worker (see paragraph 27(iv) above) was dated 5 June 2016 (which appears to be a mistake for 2017). The two documents were ultimately sent to the housing department so it is important to read the two together fully to understand the social worker’s assessment and recommendations. The important parts of the letter that accompanied the C&F Assessment are:
“Kindly be advised that I have completed a Child and Family Assessment in respect of [L]. [L] has a diagnosis of autism and the following information was obtained from [J] with regard to her housing situation. a) The home is close to a commercial airport car park that is in use 24 hours a day. [L] is on the autistic spectrum and [J] indicated that the noise produced by the vehicles and the heavy duty gate constantly create sensory discomfort for [L]. b) The home is not fenced and is adjacent to the driveway used by an airport car park company. The location of the house, coupled by the fact that [L] has no danger awareness poses a health and safety risk for [L]… [J] however, has to manage this risk as supervising [L] is a parental responsibility and an expectation. c) [J] advised that it was getting increasingly difficult for her to bath [L] because she had to carry him into the bathtub at all times. [J] stated that [L] refuses to make use of a plastic platform to enable him to get into the bathtub. In view of this she advised that there was need for adaptations in the bathroom… The reluctance of the landlord to make adaptations to the property coupled by the fact that the OT team will not commission the adaptations for reasons stated elsewhere in the presentation has resulted in a situation that makes it difficult for [J] to attend to [L]’s self-care needs. In view of these unique mutually reinforcing factors, may your department possibly re-open the housing application in respect of [J].”
[31]It is not clear to me whether the author of the C&F Assessment fully appreciated the position of J’s housing application. He correctly noted in the C&F Assessment that J was pursuing an application for housing under Part VII (homelessness), but reference to her participating in the “bidding process” tends to show that he thought that she was also eligible for consideration for (re-)housing under Part VI as well. Following the Defendant’s decision of 18 April 2017 - that the Claimants had “no identified housing need” - the Claimants were not eligible for any housing provision and so could not participate in any “bidding process”. However, in the 5 June 2017 letter, he asked the housing department to “re-open” the housing application, which suggests that he was aware that [J] had been refused housing and he was asking the housing department to reconsider that decision in light of the C&F Assessment. What is clear, however, is that the social worker envisaged that the risks to L identified in the letter and the C&F Assessment were to be addressed by the (re-)consideration of her housing application.[32]On 15 June 2017, the Claimants’ solicitors emailed the Defendant’s legal department to complain that they considered that the Defendant was failing to take a “holistic” approach to the consideration of L’s needs and welfare by “compartmentalising” the decision-making into “housing” and “social care”. It is to be remembered that, when they made this complaint, the solicitors had not yet seen the C&F Assessment.[33]On 16 June 2017, the Defendant’s legal department responded:
“You have stated that it is not possible to separate the Housing and Social Care aspects of the case and that the Local Authority should take a holistic view. I can confirm that this is in fact happening in that the decision-making officer for Housing continues to consult with the Social Services and will consider the reports prepared by the Social Services Department in order to reach a s.184 decision and a decision concerning [J’s] housing register application. In doing so, the Local Authority is having regard to [L’s] welfare and complying with its duties under s.11. My client does not believe that the ‘compartmentalisation’ of the issues into Housing and Social Services is artificial. The Children Act assessments can only be completed by a suitably qualified social services officer and the housing decision can only be made by a suitably qualified housing officer. The decision of the housing officer will be informed by consultation with the social services officer but that does not change the nature of the decisions or mean that two separate functions have been or must be combined and, on the contrary, your client’s requested outcomes can clearly be separated into the Social Services and Housing categories… As stated above, and for the avoidance of doubt, the separation of functions does not mean that there is not co-operation between the departments and I would confirm that this co-operation is ongoing.”
[34]On 13 July 2017, a medical assessment was completed by a doctor (“the Medical Assessment”). He had been forwarded the 5 June 2017 letter (see paragraph 30 above) together with the C&F Assessment. He was asked to assess whether the Claimants’ current accommodation was suitable. The doctor did not meet J or L (or visit their home) before providing his report. According to the report, he did have the First OT Assessment, but no reference is made to it. Despite being requested to provide a medical assessment, the doctor opined:
“I’m surprised to see [the 5 June 2017] letter requesting rehousing, which seems somewhat at odds with her (sic) own full C&F report of 5 Jun 2017 in which she (sic) states: ‘the actual property seems appropriate as per Housing team’s description’. I therefore think her letter may pose a risk of unhelpfully raising expectations. Regarding her specific points: (a) I acknowledge that traffic and other noise may be disturbing, but I can’t find anything to indicate it is intolerable for him, and seems unavoidable in an urban borough close to Heathrow. (b) maintaining any child’s safety on a road remains a normal parenting role (c) I recommend use of a bathboard and seat, or other aid to facilitate bathing… In summary, it remains my view that the current accommodation is suitable on specific medical grounds.”

Regarding her specific points:

[35]The housing department of the Defendant duly re-considered J’s application for housing. It was refused. The decision letter dated 20 July 2017 (“Decision Letter”) included the following:
“RE: LONDON BOROUGH OF HILLINGDON HOUSING REGISTER – NO IDENTIFIED MEDICAL AND HOUSING NEED I am writing to let you know that your application has been assessed in accordance with the Housing Act 1996 Part VI as amended by the Homelessness Act 2002 and the Council’s Allocation Policy. Based on the information you submitted on your application, Children and Family Support Plan and the further enquiries we have made, you have been assessed as having no identified medical or housing need. This means you have not been awarded medical banding and you have not been registered for Social Housing. The medical adviser has advised on the specific concerns raised:- a) I acknowledge that traffic and other noise may be disturbing, but I can’t find anything to indicate that it is intolerable for him, and seems unavoidable in an urban borough close to Heathrow. b) maintaining any child’s safety on a road remains a normal parenting role. c) I recommend use of a bathboard and seat, or other aid to facilitate bathing. In summary it remains the medical advisers (sic) view that the current accommodation is suitable on specific medical grounds. Further your landlord… was contacted on 13th July. He stated he has no plans to sell the property and he has not been approached regarding a redevelopment of the area. [The landlord] advised he is willing to do everything within his means to ensure the property is safe for you and [L] to occupy. He has confirmed he is willing to engage with Social Services to consider adapting the property so it can meet you and [L]’s needs. The bathroom has an overhead shower installed which you are able to use to assist with [L]’s bathing and to ensure the plug is removed.”

The medical adviser has advised on the specific concerns raised:-

[36]I understand it to be common ground that reference in the Decision Letter to the “Children and Family Support Plan” is a reference to the C&F Assessment. As can be seen, the decision-maker has simply copied parts of the Medical Assessment into the Decision Letter. No further reference is made in the Decision Letter to the C&F Assessment or either of the OT Assessments.

The Claimants’ complaint and grounds for judicial review

[37]Under challenge in this application for judicial review are the C&F Assessment and/or the Decision Letter and the finding that the Claimants had “no housing need”.[38]Following the grant of permission by Asplin LJ, the grounds relied upon by the Claimants are as follows: i) The decision that the Claimants have no identified housing needs is unlawful as it is outside the range of reasonable responses in light of its occupational therapist’s identification of the “main issue” being that L “has no sense of danger and has run off at times, posing a large risk with lorries on their driveway”. In doing so, the Defendant has failed to have regard to the need to safeguard and promote the welfare of L as required by s.11 Children Act 2004 (Ground 1); ii) The Defendant has failed to produce a lawful assessment of L’s needs and J’s needs as his carer. It was not entitled, in the C&F Assessment, to conclude that L’s needs could adequately be addressed by the measures put in place by J when the assessment itself recognised that “the location of the house, coupled by the fact that (L) has no danger awareness poses a health and safety risk for (L)”, a view also expressed in the OT Assessments. The Defendant also erred in that this decision was inconsistent with the duty placed on it by s.11 Children Act 2004 (Ground 2); iii) The Defendant has acted unlawfully in failing to ensure that its housing and children’s services department co-operate in a manner which ensures that they safeguard and promote the welfare of L and failed to comply with its duty under s.11 Children Act 2004, alternatively there is no evidence that it did so (Ground 3). The relevant legal framework Housing

The relevant legal framework

[39]Section 166A Housing Act 1996, so far as material, provides: (1) Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation… (3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to— (a) people who are homeless (within the meaning of Part VII); … (d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); … The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs)… … (14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.[40]The Defendant’s allocation scheme is contained in its Social Housing Allocation Policy (December 2016) (“the Housing Policy”). This provides, so far as material: 5.1 Priority Banding Housing need is determined by assessing the current housing circumstances of applicants. A priority ‘band’ is then allocated according to the urgency of the housing need. There are three priority bands as follows Band A - This is the highest priority band and is only awarded to households with an emergency and very severe housing need. Band B - This is the second highest band and is awarded to households with an urgent need to move. Band C - This is the third band, and the lowest band awarded to households with an identified housing need. If following an assessment it is determined that an applicant has no housing need, they cannot join the housing register... As required by s.166A(3), the scheme provides for reasonable preference to be given to the identified groups: 12. REASONABLE PREFERENCE GROUPS The council will maintain the protection provided by the statutory reasonable preference criteria in order to ensure that priority for social housing goes to those in the greatest need. The majority of applicants are placed on the housing register due to having a reasonable preference for housing… 12.4 Medical grounds If you apply for housing because your current accommodation affects a medical condition or disability, your application will be referred to the council’s medical adviser or occupational therapy team depending on what you have put in your application for assessment. Medical assessment does not examine how severe an applicant’s medical condition or disability is. It looks at how your current accommodation affects the health or disability of a household member. The assessment is based on whether your health or a member of your household’s health would improve by moving to alternative accommodation. Therefore, medical priority is awarded according to the extent to which the health or welfare of one or more members of the applicant’s household is affected by their current housing conditions and the expected benefits of providing suitable alternative settled housing. Applicants will complete a Medical Assessment Form to provide details of the medical condition and other supporting information. If additional information is required before a decision can be made, this will be obtained at the cost to the council. Based on the Medical Adviser’s recommendations, applicants will be placed in one of the following bands:-  Band A – Emergency Medical: the applicant or a member of the applicant’s household has a life threatening condition that is seriously affected by their housing.  Band B – Medical Hardship: the applicant’s current housing conditions are having a major adverse effect on the medical condition of the applicant or a member of the applicant’s household.  Band C – Medical Need: the applicant’s current housing conditions are having a moderate or variable adverse effect on the medical condition of the applicant or a member of the applicant’s household. 12.6 Hardship grounds There are a number of households applying to the housing register who experience serious hardship because of a combination of different factors which make the need for re-housing more urgent than when considered separately The decision as to the appropriate priority ‘band’ will depend on both the combination and degree of the various factors with a view to ensuring that the greatest priority is given to those in the greatest need. In circumstances where this applies, a panel of officers (Hardship Panel) will undertake a review of the case to determine whether priority for re-housing is necessary. The following priority banding will be considered  Band B – The applicant or a member of their household has multiple needs or has an urgent need to move. Examples include:• To give or receive care or support from/to a resident in the borough, avoiding use of residential care. It is constant care to/from a close relative as evidenced by a professional’s report and supported by the Council’s Medical Adviser;• Child protection reasons;• The need to move to take up a confirmed offer of permanent employment;• Other urgent welfare reasons.

Welfare of children

[41]Section 17 of the Children Act 1989 provides, so far as material: 17 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 by their families, by providing a range and level of services appropriate to those children’s needs. … (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...[42]Section 11 of the Children Act 2004 provides, so far as material: 11 Arrangements to safeguard and promote welfare(1) This section applies to each of the following— (a) a local authority in England…(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 (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need. … (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.[43]Guidance pursuant to s.11(4) was issued in March 2015: “Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children” (“The Working Together Guidance”). The Working Together Guidance requires that it “should be complied with unless exceptional circumstances arise” (paragraph 5). Mr Wise QC, for the Claimants, has referred me to a number of sections in the guidance. The following appear most relevant: i) In the introduction (p.5) “Safeguarding and promoting the welfare of children is defined for the purposes of this guidance as follows: …• preventing impairment of children’s health or development; [and]• ensuring that children grow up in circumstances consistent with the provision of safe and effective care…”• preventing impairment of children’s health or development; [and]• ensuring that children grow up in circumstances consistent with the provision of safe and effective care…” ii) Under the heading, “Assessments under the Children Act 1989” (pp.17-20): “Statutory requirements 26. Under the Children Act 1989, local authorities are required to provide services for children in need for the purposes of safeguarding and promoting their welfare. Local authorities undertake assessments of the needs of individual children to determine which services to provide and what action to take… Statutory assessments under the Children Act 1989• A child in need is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled. Children in need may be assessed under section 17 of the Children Act 1989, in relation to their special educational needs, disabilities, as a carer, or because they have committed a crime. Where an assessment takes place, it will be carried out by a social worker. The process for assessment should also be used for children whose parents are in prison and for asylum seeking children. When assessing children in need and providing services, specialist assessments may be required and, where possible, should be coordinated so that the child and family experience a coherent process and a single plan of action… The purpose of assessment 29. Whatever legislation the child is assessed under, the purpose of the assessment is always:• to gather important information about a child and family;• to analyse their needs and/or the nature and level of any risk and harm being suffered by the child;• to decide whether the child is a child in need (section 17)…; and• to provide support to address those needs to improve the child’s outcomes to make them safe… The principles and parameters of a good assessment 35. High quality assessments:• are child centred…• are focused on action and outcomes for children;• are holistic in approach, addressing the child’s needs within their family and wider community…• are integrated in approach;• are a continuing process not an event; [and]• lead to action, including the provision of services; … 36. Research has shown that taking a systematic approach to enquiries using a conceptual model is the best way to deliver a comprehensive assessment for all children. A good assessment is one which investigates the following three domains, set out [on p.22: Child’s Development Needs, Family and Environmental Factors, Parenting Capacity]… Developing a clear analysis 46. The social worker should analyse all the information gathered from the enquiry stage of the assessment, including from a young carer’s, parent carer’s or non-parent carer’s assessment, to decide the nature and level of the child’s needs and the level of risk, if any, they may be facing. The social work manager should challenge the social worker’s assumptions as part of this process. An informed decision should be taken on the nature of any action required and which services should be provided. Social workers, their managers and other professionals should be mindful of the requirement to understand the level of need and risk in a family from the child’s perspective and ensure action or commission services which will have maximum impact on the child’s life. 47. No system can fully eliminate risk. Understanding risk involves judgement and balance. To manage risks, social workers and other professionals should make decisions with the best interests of the child in mind, informed by the evidence available and underpinned by knowledge of child development… Focusing on outcomes 52. Every assessment should be focused on outcomes, deciding which services and support to provide to deliver improved welfare for the child. 53. ... The plan should set out what services are to be delivered, and what actions are to be undertaken, by whom and for what purpose. 54. … The plan should… set clear measurable outcomes for the child and expectations for the parents, with measurable, reviewable actions for them. 55. The plan should be reviewed regularly to analyse whether sufficient progress has been made to meet the child’s needs and the level of risk faced by the child…”• A child in need is defined under the Children Act 1989 as a child who is unlikely to achieve or maintain a reasonable level of health or development, or whose health and development is likely to be significantly or further impaired, without the provision of services; or a child who is disabled. Children in need may be assessed under section 17 of the Children Act 1989, in relation to their special educational needs, disabilities, as a carer, or because they have committed a crime. Where an assessment takes place, it will be carried out by a social worker. The process for assessment should also be used for children whose parents are in prison and for asylum seeking children. When assessing children in need and providing services, specialist assessments may be required and, where possible, should be coordinated so that the child and family experience a coherent process and a single plan of action…• to gather important information about a child and family;• to analyse their needs and/or the nature and level of any risk and harm being suffered by the child;• to decide whether the child is a child in need (section 17)…; and• to provide support to address those needs to improve the child’s outcomes to make them safe…• are child centred…• are focused on action and outcomes for children;• are holistic in approach, addressing the child’s needs within their family and wider community…• are integrated in approach;• are a continuing process not an event; [and]• lead to action, including the provision of services; … Developing a clear analysis

Focusing on outcomes

[44]It is clear, not only from the guidance itself, but from authorities that the duty under s.11 applies to the local authority as a whole not just its social services department. In Nzolameso –v- Westminster City Council [2015] UKSC 22; [2015] 2 AllER 942; [2015] PTSR 549; [2015] HLR 1, the Supreme Court considered the nature and extent of the s.11 duty. Baroness Hale gave the judgment for the Court: [22] Shelter Children's Legal Service have helpfully intervened to remind the court that the exercise of the local authority's functions under the 1996 Act is covered by section 11(2) of the Children Act 2004. This requires each person or body to whom the section applies (which includes a local housing authority) to make arrangements for ensuring ‘(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.’ [23] Section 11 does not define “welfare”, but section 10 provides a statutory framework for co-operation between the local authority and relevant agencies with a view to improving the “well-being” of children in the area. Well-being for this purpose is defined as(a) physical, mental and emotional well-being;(b) protection from harm and neglect;(c) education, training and recreation;(d) the contribution made by children to society; and(e) social and economic well-being: section 10(2). The welfare of the child has long been given a broad meaning in family proceedings, encompassing physical, psychological, social, educational and economic welfare. [24] It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case. As Pitchford LJ put it, in R (Castle) –v- Metropolitan Police Comr [2012] 1 All ER 953, para 51:
‘The chief officer's statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare.’
However, he went on to point out: ‘This does not mean that the duties and functions of the police have been re-defined by section 11 … the guidance accurately states the obligation of chief officers of police “to carry out their existing functions in a way which takes into account the need to safeguard and promote the welfare of children”.’ [25] In the homelessness context, there is a distinction between the factual decisions which the authority have to make and an exercise of discretion or evaluation. Thus it has been held that section 11 has no part to play in the decision as to whether a person's actions are deliberate for the purpose of deciding whether she is intentionally homeless. As Moses LJ pointed out in Huzrat –v- Hounslow London Borough Council[2014] HLR 201, para 26: ‘The statutory questions are clear; was the action or omission in question deliberate? The answer to that question cannot differ [according to] whether the local authority takes into account the duty under section 11 of the Children's [sic] Act or not.’ [26] Some statutory questions do leave room for the consideration of the child's welfare. Where the question relates to the eligibility of a third country national for homelessness assistance under the regulations implementing the decision of the Court of Justice of the European Union in Ruiz Zambrano -v- Office national de l'emploi (Case C-34/09) [2012] QB 265, the test is whether the European Union citizen child of that third country national would be “unable to reside” in the United Kingdom or another European Economic Area state if the third country national were obliged to leave. It was held in Hines –v- Lambeth London Borough Council [2014] 1 WLR 4112 that the child's welfare had obviously to be taken into account, but it could not be the paramount consideration as this would be inconsistent with the statutory language. [27] The question of whether the accommodation offered is “suitable” for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household. Its suitability to meet their needs is a key component in its suitability generally…”[45]The judgment recognised that local authorities had scarce resources and that they often faced very difficult decisions as to the allocation of those resources. That “invidious task” was given to the local authority, not to the Court, but it was incumbent on each authority to demonstrate clearly its decision-making process. [30] ... The local authority may have the invidious task of choosing which household with children is to be offered a particular unit of accommodation. This does not absolve the authority from having regard to the need to safeguard and promote the welfare of each individual child in each individual household, but it does point towards the need to explain the choices made, preferably by reference to published policies setting out how this will be done (as to which see further below). Evidencing and explaining the authority's decisions [31] The Secretary of State for Communities and Local Government has also intervened in this case, in order to emphasise that when making decisions about where to accommodate homeless persons, local authorities have a number of duties to evidence and explain their decisions. They are required to take the Code and Supplementary Guidance into account. If they decide to depart from them they must have clear reasons for doing so: see R (Khatun) –v- Newham London Borough Council [2005] QB 37, para 47. Very good reasons are required to depart from a policy formulated after public consultation: Royal Mail Group plc –v- Postal Services Commission [2007] EWHC 1205 (Admin) at [33]. This is especially so where the Code is designed to protect vulnerable people: R (Munjaz) –v- Mersey Care NHS Trust [2006] 2 AC 148. By definition, any homeless household in priority need will be vulnerable in this sense. The authority must also have a proper evidential basis for their decision: R (Calgin) –v- Enfield London Borough Council [2006] 1 All ER 112, para 32. [32] It must be clear from the decision that proper consideration has been given to the relevant matters required by the Act and the Code. While the court should not adopt an overly technical or “nit-picking” approach to the reasons given in the decision, these do have to be adequate to fulfil their basic function. It has long been established that “an obligation… to give reasons for a decision is imposed so that the persons affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable or invalid and therefore open to challenge”: see R –v- City of Westminster, Ex p Ermakov [1996] 2 All ER 302, 309-310. Nor, without a proper explanation, can the court know whether the authority have properly fulfilled their statutory obligations. [33] The Secretary of State is concerned that the Court of Appeal was too ready to assume that the authority had properly complied with their statutory obligations. Thus, at [2015] PTSR 211, para 21, it was said that the reviewing officer “must… be taken to have been aware of the resources available to the council and the pressures on them. It is not necessary in a decision letter of this kind for the reviewing officer to describe in detail what those resources and pressures are. If, as I think, Westminster was entitled to take a broad range of factors into account in deciding whether it was reasonably practicable to provide accommodation to [the applicant] within its own district, it was sufficient for the reviewing officer to describe the circumstances which led her to that conclusion in general terms. I am therefore not persuaded that her decision was irrational in the sense that it lacked an evidential base.” [34] Then, at para 25, when it came to providing accommodation as close as possible to the home district: “The guidance produced by the Secretary of State is lengthy and detailed … in my view there is no basis for inferring that [the reviewing officer] did not have it in mind or that she was unaware of the desirability of accommodating [the applicant] as close to Westminster as was reasonably practicable … It was not necessary for her to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered to [her].” [35] The Secretary of State complains that the effect of this approach would be to encourage courts to infer, on no other basis than the assumed experience and knowledge of a local authority, that the authority knew of the Code and Guidance and had taken it into account; that the authority had considered and rejected the possibility of providing closer accommodation than that offered; and that the authority had good reasons for their decision in this particular case. If the courts are prepared to assume all this in the authority's favour, this would immunise from judicial scrutiny the “automatic” decisions to house people far from their home district, which was just what the 2012 Order and Supplementary Guidance were designed to prevent.[46]More recently, albeit in a different context, Baroness Hale clarified that the s.11 duty requires that the welfare of the child be “actively promoted” (R (HC) –v- Secretary of State for Work and Pensions [2017] UKSC 73; [2017] 3 WLR 1486) [46]:
“In carrying out [a] review, the local authority will no doubt bear in mind, not only their duties under section 17 [of the Children Act 1989] , but also their duty under section 11 of the Children Act 2004 , to discharge all their functions having regard to the need to safeguard and promote the welfare of children, and their duty, under section 175 of the Education Act 2002 , to exercise their education functions with a view to safeguarding and promoting the welfare of children. Safeguarding is not enough: their welfare has to be actively promoted.”
[47]In R (E) –v- Islington LBC [2017] EWHC 1140 (Admin); [2017] ELR 458 the Court considered the practical requirements of a local authority demonstrating, by evidence, its decision-making process. In that case, the issue arose as to the lawfulness of the local authority’s decision under s.11(2)(b) Children Act 2004 to delegate educational provision for a child in need to another local authority. The decision, however, would apply equally to the duties imposed under s.11(2)(a). Deputy Judge Ben Emmerson QC, applying Nzolameso, held: [110] Underpinning all of these obligations is the statutory duty imposed by section 11(2) of the Children Act 2004… [112] The application of section 11 to the decision-making of public authorities in individual cases was considered by the Supreme Court in Nzolamesco. Giving the single judgment of a unanimous Court, Lady Hale, at paragraph 24, observed that "section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case". Lady Hale's conclusion in relation to section 11(2)(a) is of a piece with the express statutory language of section 11(2)(b) which clearly contemplates individual decisions to delegate a relevant public authority's function in a particular case. [113] I digress (only slightly) at this point to consider the nature and extent of the obligations that rest on a local authority placing a homeless child out of borough to record and provide evidence of its decision-making processes, of the factors it has taken into account, and of the reasons for its conclusions... [114] Baroness Hale addressed the question directly in Nzolameso (at paragraphs 31 to 35). She summarised and subsequently endorsed the submissions of the Secretary of State concerning the analytical and reasoning duties that sit with the sending authority in an out of borough homelessness case, when the authority comes to determine how far from the home borough a family with school-age children should reasonably be housed. The thrust of the Secretary of State's submission was that the sending authority must address its mind to, amongst other matters, the need to minimise educational disruption, and must record its reasoning, and be in a position to provide evidence of its contemporary reasoning in court, if called upon to do so. It must be in a position to demonstrate, by reference to written contemporaneous records, the process of reasoning by which it reached its decision. A court should not assume in favour of a local authority that it has performed its functions in a conscientious and lawful manner. Judicial scrutiny requires an objective and evidence-based analysis of the decision-making process...”

Submissions

[48]Mr Wise QC, for the Claimants, submits: i) s.166A(3)(d) Housing Act 1996 required the Defendant to frame its Housing Policy so as to ensure that “reasonable preference” is given to “people who need to move on medical or welfare grounds (including any grounds relating to disability)”. ii) The duty to provide “reasonable preference” for housing under Part VI of the 1996 Act, not temporary accommodation under Part VII of that Act. In short, it relates to long-term rather than short-term accommodation. iii) The duty under s.11 Children Act 2004 must be exercised so as to ensure that the welfare of the child is “actively promoted”: HC [46]. The Defendant has failed to comply with this duty and it has failed to demonstrate that its decision-making process complied with s.11. iv) In light of the evidence before the Defendant on the danger to L and the general unsuitability of the family’s accommodation, the decision that L had no welfare need for accommodation is beyond the range of reasonable responses open to it. v) The Defendant’s reliance on the Medical Assessment is misconceived. The doctor had not seen L or his circumstances and he was in no position to assess the danger to him. vi) The C&F Assessment was flawed. It “passed the buck” to the housing department and failed to ask the appropriate questions as to how the identified risks to L would be addressed: see R –v- Ealing LBC ex parte C (2000) 3 CCLR 122, 130H. The assessor did not properly assess L’s needs or make a “realistic plan” as to how those needs were to be met, as required by the Working Together Guidance. What was required was an assessment of housing and safety needs of L, a clear analysis of the risks L faced, to be ‘child-focused’ and an agreed plan of action; vii) There is nothing in the C&F Assessment (or elsewhere) that shows that the Defendant approached the problems presented by the Claimants in a co-ordinated way. viii) The Defendant was not entitled, either in the C&F Assessment or relying upon it, to conclude that L’s needs could be met by measures put in place by his mother when the assessment itself recognized that “the location of the house, coupled by the fact that [L] has no danger awareness poses a health and safety risk for [L]”. Properly analysed, the C&F Assessment regarded the “tolerable risk” to L being met by parental supervision by J as only a temporary measure “pending alternative accommodation”. ix) In considering the lawfulness of the Defendant’s approach, the Court is required to scrutinise intensely the reasoning and actions of the Defendant: R (KM) –v- Cambridgeshire CC [2015] 1 WLR 1591 [36] per Lord Wilson.[49]For the Defendant, Mr Hutchings QC contends that both the C&F Assessment and the subsequent Decision Letter are lawful. He submits: i) Pursuant to s.166A(14) Housing Act 1996 (see paragraph 39 above), the Defendant cannot allocate housing accommodation to the Claimants otherwise than in accordance with its allocation scheme; ii) The Claimants did not qualify for housing under the Defendant’s allocation scheme (see paragraph 40 above); iii) The Claimants had lodged an application to the Defendant’s housing department for assistance on the basis that they were ‘homeless’ within the terms of Part VII of the Housing Act on the grounds that it was not, in the circumstances, reasonable for them to continue to occupy their current accommodation on a long-term basis (s.175(3) Housing Act 1996). That was the route by which their application for housing ought properly to be considered; iv) The Defendant’s social services and housing departments did consult and share information in discharging their obligation under s.11 to act co-operatively in a holistic assessment of L’s needs. He relies upon the 16 June 2017 letter (see paragraph 33 above) and the Medical Assessment (see paragraph 34 above) as demonstrating this co-operation. In any event, relying upon R (M & A) v Islington LBC [2016] HLR 19 [36], the duty of co-operation does not require that the functions of the requesting or requested department are changed. v) s.11(2) Children Act 2004 cannot substitute different criteria for awarding priority under the Defendant’s allocation scheme: Nzolameso[25]. vi) In any event, s.11(2) is a “have regard to” duty. It is expressly a process, not outcome duty. It does not redefine the underlying substantive obligations. The Claimants’ attempt to elevate Baroness Hale’s dictum in HC[46](see paragraph 46) to a decision that s.11(2) imposes a substantive obligation actively to promote children’s welfare is misguided. vii) The Court should note the observations of Briggs LJ in Hackney LBC –v- Haque [2017] PTSR 769 [57] Briggs LJ: “Judicial notice can be taken of the fact that housing authorities experience grave constraints in finding appropriately located suitable accommodation… The allocation of scarce resources among those in need of it calls for tough and, on occasion, heartbreaking decision-making, but having to say no to those deserving of sympathy by no means betokens a failure to comply with the [scheme].” viii) Provision of housing for families is not the principal purpose of Part 3 Children Act 1989 (of which s.17 is part); housing is the function of the local housing authority: R (G) –v- Barnet LBC [2004] 2 AC 208 [92]-[93] per Lord Hope (with whom Lords Millett and Scott agreed). Accordingly, the Defendant’s Children’s Services Department is entitled to reserve the use of the s.17(6) power for exceptional cases: (ibid [141] per Lord Scott). Concluding that the present case did not come into that category was a question of judgement for D and does not entail any “failure to ask the appropriate questions”. ix) The C&F Assessment contained a clear identification of the risks, a reasoned assessment of them and a clear plan of action as to how to deal with them. It complied with the Working TogetherGuidance. The decision was not irrational on the available evidence. x) Where applicable, s.11(2) requires the decision-maker to identify the principal needs of the child and to have regard to the need to safeguard and promote those needs when making the decision: Nzolameso[27]. This was “hard-wired” into the C&F Assessment. xi) Assessments under s.17 Children Act 1989 are carried out by social workers. Courts must be wary of expecting so much of hard-pressed social workers that they risk taking them away, unnecessarily, from their frontline duties: R (Ireneschild) –v- Lambeth LBC [2007] HLR 34[57]. The effect of s.11(2) cannot be to impose a standard of reasoning that social workers are unlikely in practice to be able to meet. On the contrary, the court should not be “too exacting”: R (H) –v- Ealing LBC [2017] EWCA Civ 1127 [122].

Decision

[50]My starting point is to have clearly in mind the role of the Court when judicially reviewing the decision(s) of the Defendant. Decisions in relation to the provision of housing are to be made by the Defendant. They must be lawful (in the judicial review sense), but as Briggs LJ noted in Haque (paragraph 47(vii) above), the scarcity of resources requires “tough and, on occasion heart-breaking decisions.”[51]Here the decision was “no”. The issue is whether that decision was reached lawfully. Given that I am here dealing with the interests of a disabled 8-year-old who is living in accommodation in relation to which at least two serious risks to his well-being have been identified, the assessment of whether the decisions were lawful would require the sort of intense scrutiny to which Lord Wilson referred in KM (see paragraph 48(ix) above).[52]I turn first to consider the C&F Assessment. When doing so, I accept Mr Hutchings QC’s submission that the author was a social worker, not a lawyer, and I must not impose a standard that is ‘too exacting’.[53]The first thing to note is that the social worker was clearly aware that the purpose of the report was to assess J and L “as part of” their application to be rehoused. The central issue, so far as J was concerned, was the unsuitability of her current home and the risks it presented to L. Indeed, but for the expression of these concerns, it is unlikely any assessment would have been made at all. There were, for example, no concerns about J’s willingness and ability to care for L.[54]In the C&F Assessment, the social worker was clear that, because of his disabilities, L faced two identified health and safety risks; the risk of drowning in the bath (arising from the risk of his having a fit whilst in the bath) and the risk of his being knocked over on the busy road outside his house; a risk that was at its greatest when L was being transferred from his home to the car. As the social worker noted, these risks had been previously identified in the First OT Assessment (see paragraph 11 above). An issue concerning the road noise and L’s heightened sensitivity to such noise as a result of his autism was also noted, but the principal (and immediate) risks to L were the two that I have identified.[55]Ways of addressing these two main risks were considered in the C&F Assessment. The conclusion was that adaptations to the bathroom were not a viable option because J would not qualify for a Disabled Facilities Grant and the landlord had refused permission for such work to be carried out in any event. As regards the risk presented by the busy road, the only solution that was identified was parental supervision.[56]Mr Hutchings QC correctly notes that the social worker concluded that the identified risks were “tolerable” and he submits that is a conclusion that was plainly open to the social worker on the evidence. I agree that this was a conclusion that the social worker could reach, but, in doing so, it is very important to concentrate on two things: first, properly understood (from the C&F Assessment as a whole), what did “tolerable” mean and what did the social worker recommend (or thought would happen) in light of that “tolerable” risk?[57]The relevant passage is set out above (paragraph 27(iv)) and I will not set it out again. What is clear, in my view, is that the author clearly thought that the risk to L was only “tolerable” as a temporary measure. It was tolerable only pending alternative accommodation. In the meantime, the only identified way of mitigating or eliminating the risk was supervision by J. In respect of L’s bathing, that was recognised as not being a long-term solution because the constant supervision that it required would mean that L would not be able to develop the independence in personal care that otherwise would be an important objective in his development. Likewise, the risk presented by the road was constant. The supervision required by J to eliminate or mitigate that risk would be one of ceaseless vigilance when L was being transferred to the car or whenever he was near the road. Given that L had been assessed as “being challenging in different settings”, “very active” and that he had limited understanding of danger, the sort of parental supervision that would be required of J went well beyond that which could be expected of the parent of a 8-year-old without L’s disabilities. By analogy, if parents had an unfenced cliff edge at the end of their garden, one way of managing the risk of their child falling off the cliff would, no doubt, be parental supervision. However, given the risk of human error or even a moment’s inattention by an otherwise diligent parent, it would be no substitute (on anything other than a short-term basis) for adequately fencing off the cliff edge. That was the position with J and L, and I am satisfied that the social worker appreciated that and was making his recommendations accordingly.[58]That conclusion seems to me to be fortified by the conclusion that J and L’s housing situation was not of “such urgency that it would require action outside the usual housing application and bidding process”. That is a recognition that there was a problem that needed solving, but that it was not of such pressing urgency that it required intervention through, I infer, the s.17(6) Children Act 1989 route. The reason that it was not of such urgency was that the social worker considered that the housing need was going to be assessed by the housing department.[59]I recognise that the social worker made a genuine assessment of the risks that presented to L, but I do think that the C&F Assessment is open to justifiable criticism in two key respects: i) All that was identified in the C&F Plan, in respect of L’s risk of harm, was that L “was not aware of what is safe and unsafe for him”. That summary failed to break down the individual risks that had been identified. Action to address the stated risk was:
“[J] is to ensure that [L] is under adult supervision at all times”
. Tellingly, the “when will this be done” entry was left blank. It is likely that, had the social worker specifically addressed that question, he would have realised that the relevant “action” that was being recommended he had only regarded as being temporary. ii) In turn, this obscured what really needed to go into the C&F Plan: that if the family was not successful in getting alternative accommodation, the situation would need to be reappraised by social services; the event that made the risk “tolerable” in the meantime not having transpired. This had two practical impacts: first, it meant that the social worker recommended that “the case be closed to social services” because he saw no continuing need for oversight; and second, it failed to signal to the housing department the importance of the rehousing need for J and L and the role it played in the s.17 assessment of L’s best interests as a child in need.[60]I have considered whether I am ‘nit-picking’ or making unrealistic expectations in criticising these aspects. I am satisfied that I am not. These are practical issues that should occur to any social worker. At its heart, a s.17 assessment requires an analysis of what (if anything) requires to be done, when and by whom (cf. R (J) –v- Caerphilly County Borough Council [2005] 2 FLR 860 [45]). The housing issue was the source of the risks that were identified as threatening the welfare of L. If the social services department was not going to deal with the issue itself (as it was not), then in reality the “action” in the C&F plan to address this was going to reside, in the first instance, with the housing department. My criticism of the C&F Assessment is not that these things were not identified (apart from the failure clearly to identify the “action” that was being allocated to the housing department); it is that their importance was not clearly communicated to the housing department. That was a failure of co-operation to deliver an integrated approach.[61]In some respects, the letter of 5 June 2017 that accompanied the C&F Assessment potentially made the position worse. Although it recognised and flagged, clearly, the nature of the risks faced by L, and asked the housing department to reconsider the application for housing, it did not make plain that the solution of parental supervision was only regarded as a temporary measure.[62]A particular feature of this case is the impression that has been created that, contrary to the letter of 16 June 2017 (see paragraph 33 above), the Defendant was compartmentalising the decision-making. Mr Wise QC submitted that the C&F Assessment was “passing the buck” to the housing department. I think that characterisation is unfair, but I do think that the social services department saw the solution as lying within the housing department’s remit.[63]When assessing compliance against the Working Together Guidance, the Defendant is entitled to say that the Court should look at the whole process, not just the handling of particular decisions. I accept that. But it seems to me that, at this stage, I can identify, now, areas of concern regarding the C&F Assessment’s compliance with the Working Together Guidance and then return to consider whether later developments alleviate or remove those concerns. They are, as follows: i) Although the pro-forma questions on the C&F plan are clearly designed to provide outcome-focused answers, the outcome that was identified for the risks to L was too generalised to be of any practical value (Paragraph 35 of the Working Together Guidance). Judged against Paragraphs 52 to 55 of the Working Together Guidance, the outcomes did not adequately focus on what was needed, who would provide it and by when. There was no provision or mechanism for reviewing the progress and deciding whether it was sufficient “to meet the child’s needs and the level of risk faced by the child”. ii) The process was not integrated. The successful management or elimination of the identified risks to L required a much greater level of co-operation between the social services and housing departments of the Defendant. I note in the letter of 16 June 2017 that it was said that there was ongoing co-operation between the two departments and that the decision of the housing officer “will be informed by consultation with the social services officer”, but there is no evidence of any such consultation (or other co-operation) having taken place. More worryingly, the 16 June 2017 letter suggests that the Defendant does not regard “compartmentalisation” as being artificial and that J and L’s “requested outcomes can clearly be separated into the Social Services and Housing categories”. As I noted at the hearing, it is clearly for each local authority to decide how it will approach the carrying out of s.17 assessments (so long as it does it in accordance with the Working Together Guidance). In some instances, it may be appropriate to carry out separate analyses of relevant matters by each team. There is force in the point made in the 16 June 2017 letter that different expertise resides with each department. Nevertheless, in order for assessments to be holistic, “integrated in approach” and “a continuing process and not an event”, if different departments make separate assessments, then someone must take responsibility for carrying out the overall review. In this case, the social services department’s involvement ended when it signed off the C&F Assessment on 5 June 2017.[64]The Medical Assessment (see paragraph 34 above) was very unimpressive. It may well be that the doctor thought that the Claimants did not qualify under Paragraph 12.4 of the Housing Policy (see paragraph 40 above). The only medical issue that had been raised in the C&F Assessment was L’s heightened sensitivity to noise, but even this was not investigated properly. The doctor should have limited his opinion to stating, if that was his view, that L did not qualify for housing allocation under Paragraph 12.4 on that ground. Instead, he included his views of the points raised in the 5 June 2017 letter. Only the first of those was within his expertise, and the other two were superficial responses to issues that had no medical dimension and upon which he should not have been commenting upon at all. Unfortunately, the Medical Assessment was later to have a significant impact on the ultimate housing decision.[65]The C&F Assessment, the letter of 5 June 2017 and the Medical Assessment were then considered by the housing department in its reconsideration of whether the Claimants had any housing need.[66]I have reached the very clear conclusion that the Decision Letter of 20 July 2017 suffers from very serious defects. i) The decision-maker has relied – word for word – on the Medical Assessment without apparently recognising that it was no part of the doctor’s job to assess the scope of the parental role and its effectiveness of mitigating the risks to L or to make recommendations as to L’s bathing (which failed to address the risk to L at all). ii) Based on this, the decision-maker concluded that “the current accommodation is suitable on specific medical grounds”. iii) There is no reference to (or apparent consideration of) the recommendations in the C&F Assessment or any previous OT Assessments. iv) In relation to housing need, reliance is placed on uncertain assurances from J’s landlord (with no detail) as to unspecified future adaptations to the property to meet L’s needs. This apparently ignored completely the social worker’s clear conclusion in the C&F Assessment that adaptations would not be possible because J would not qualify for a Disabled Facilities Grant. v) The Decision Letter so comprehensively fails to grasp the nature of the risks to L identified in the C&F Assessment and the proposal of how those risks were to be addressed that it is impossible to conclude that there had been any discussion of the C&F Assessment, still less co-operation, with the social services department. It is difficult to see how the Decision Letter could have been written in the terms it was if the author had had a discussion with the author of the C&F Assessment.[67]It appears to me that this letter is wholly superficial and has simply failed to engage adequately (or at all) with the risks to L arising from his housing that had been identified in the C&F Assessment. That may be because the decision-maker did not grasp the nature and extent of the identified risks or the recommendations made in the C&F Assessment. In this respect, she may well have been led into error by the summary given in the letter of 5 June 2017, the inadequate assessment of the risks in the Medical Assessment and/or the failure of the C&F Plan to identify housing as a key source of risk to L and how it was planned to address that risk in anything other than the short-term. Those errors would likely have been avoided if there had been proper co-operation and discussion between the social services and housing departments. The Decision Letter fails, completely, actively to promote the welfare of L. If it were to be suggested that it was no part of the housing officer’s role to make decisions about the welfare of L (and even were that correct), that simply serves to demonstrate the dangers of compartmentalising the process.[68]I noted above (paragraph 63) that, when evaluating whether the Defendant had carried out an appropriate assessment of L’s needs under s.17, it might be necessary to look at the whole of the process, of which the housing decision is an important part. Standing back, the Decision Letter does nothing to improve the position. Following despatch of that letter, the stark reality is that the Defendant had no plan in place for addressing and meeting L’s identified needs. Given that social services had closed their file, it also appears to have had no internal mechanism even to recognise that this was the position. Had the process been properly integrated and holistic, the negative housing decision would have been picked up as important – because it left L’s identified needs unaddressed - and referred back to social services for further consideration. The Defendant failed to provide a mechanism allowing the situation to “be reviewed regularly to analyse whether sufficient progress [had] been made to meet [L’s] needs and the level of risk faced by [L]” (paragraph 55 in the Working Together Guidance).[69]Insofar as the Decision Letter is relied upon as demonstrating compliance with s.11 duty actively to promote the welfare of L, it fails completely. It does not even recognise it as a factor in the decision-making. There is no other evidence of consideration of s.11 at this stage. The statements in the letter of 16 June 2017 that there was co-operation between the departments and that the housing officer would consult with the social worker before making the housing decision are mere assertion. It is impossible to tell from an objective evidence-based analysis (Nzolameso [31]-[32]; and R (E) –v- Islington LBC [113]-[114]) whether the Defendant has properly fulfilled its statutory obligations. The evidence, such as it is, suggests strongly that it has not. The Defendant cannot “demonstrate by reference to written contemporaneous records, the process of reasoning by which it reached its decision”.[70]The same can be said about the consideration of the Housing Policy. It appears that the Defendant did not assess J’s application by reference to the hardship grounds in Paragraph 12.6 of the Housing Policy (see paragraph 40). There is no evidence that the “panel of officers (Hardship Panel)” had undertaken a review “to determine whether priority for re-housing is necessary”. That is the case even though Paragraph 12.6 of the Housing Policy notes that “a combination of factors [can] make the need for re-housing more urgent than when considered separately” and the 5 June 2017 letter to the housing department accompanying the C&F Assessment expressly referred to the “unique mutually reinforcing factors” that the social worker thought should be considered.[71]Mr Hutchings QC for the Defendant submitted that the Claimants are not attacking the lawfulness of the Housing Policy and J’s housing application would not have qualified under Paragraph 12.6 of the Policy. That is correct, but the short answer to that point on this judicial review application is that there is no evidence that the decision-maker considered the issue at all. There is nothing for me to “scrutinise intensely”.[72]The category against which J’s application would seem to need consideration is “other urgent welfare reasons”. I asked Mr Hutchings QC whether the duty imposed by s.11 Children Act 2004 required the Housing Policy to be interpreted in a way that, so far as possible, was consistent with that duty. He submitted that s.11 had no role to play in this situation. He relied upon Nzolameso[25] to support that submission. I do not need to decide the point, but I am not convinced that s.11 does not have a role to play here. An assessment of “other urgent welfare reasons” is an evaluative exercise, not a factual decision. If a local authority, acting collaboratively through its housing and social services departments, carries out a s.17 assessment and identifies housing as a critical issue in relation to the welfare of a child in need, then, consistent with the Working Together Guidance, arguably it needs to devise a coordinated and holistic plan as how that need is to be addressed. If the authority’s allocation policy (under s.166A Housing Act 1996) has a broad category such as “other urgent welfare reasons” then, given this requires for subjective assessment and evaluation, it seems to me also arguable that s.11 has a very real role to play in the housing decision particularly in light of the need actively to promote the welfare of the child in need (cf. Nzolameso [26]).[73]Judged against(a) the needs of L,(b) the C&F Assessment, and(c) the OT Assessments and the identified risks, there is force in the submission by Mr Wise QC that the Defendant’s decision that L had no welfare need is irrational. Again, I do not need to decide that point because the decision-making is flawed by the failure properly to consider the issue.[74]In his submissions, Mr Hutchings QC suggested that the Claimants were asking the Defendant to provide accommodation under s.17(6) Children Act 1989. They were not. That stage has not (yet) been reached. Analysed properly the sequence of events was: i) in the C&F Assessment, the social worker did not consider that the housing need was so acute that it required s.17(6) assistance and the issue of housing need would be considered by the housing department of the Defendant (see paragraph 58 above); ii) the Decision Letter (the principal decision under challenge) refused housing under Part VI of the Housing Act; and iii) in light of the that negative decision, there remained unaddressed risks to L arising from his housing situation identified in the C&F Assessment that the Defendant should have reconsidered under its s.17 duty and the Working Together Guidance. It did not do so. Reaching stage (iii) would not mean that the Defendant necessarily had to provide accommodation under s.17(6) (although that would be an option). For example, although not relevant for the decisions I have to make, I was told that the Defendant had recently investigated erecting a fence as a means of reducing or eliminating the risk to L from the road. That has not proved possible, but it shows that it is for the Defendant to determine the way in which it chooses to address the risks to L.[75]That process of decision-making does not risk “turning the social services department of the local authority into another kind of housing department” (G [93]). Appropriately carried out, it enables the proper identification of risk and the welfare needs of L by way of s.17 assessment, enables the Defendant to assess the appropriate way of addressing those needs and risks, and recognises that housing provision under s.17(6) is a measure of last resort reserved for exceptional cases (G [141]). For the reasons I have explained, I have decided that stage (ii) has not been carried out properly by the Defendant (partly as a result of defects in the C&F Assessment and/or the ineffective communication of its recommendations) and stage (iii) has not been carried out by the Defendant at all in the decisions under review.[76]Mr Hutchings QC submitted that the Court should not overlook that the Claimants have applied for housing provision under under Part VII on the basis that they are “homeless” within the terms of the Act on the footing that it is not reasonable for them to continue to occupy their current acommodation. Mr Wise QC has made the point that, even if they were successful with such an application, the Claimants would only be entitled to temporary accommodation. But the more powerful submission is that the Defendant has, in fact, turned down the application under Part VII. Legally, the decisions under Part VI and Part VII fall to be assessed separately (indeed there are different routes of challenge) so the fate of the Part VII application does not have a bearing on this judicial review application, save perhaps in one potential respect. Had the decision on Part VII been favourable, it might have had an impact on the s.17 point. If the Part VII accommodation resolved the identified risks to L’s welfare, then the Defendant might well have been able to demonstrate compliance with s.17 (at stage (iii) above). But at each stage, the Defendant would have had to keep L’s welfare needs under review. Temporary accommodation may have presented new problems and so might not, ultimately, have provided the answer. The short point, however, is that, the Part VII application having been refused, these issues do not arise.[77]As agreed at the hearing, I will invite submissions from the parties as to the appropriate form of order consequent on this judgment.

Cited in 3 later judgments