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||Neutral Citation Number:  EWCA Civ 1624
|| Case No: C/2001/1275
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE (MR JUSTICE SCOTT BAKER)
||Royal Courts of Justice
London, WC2A 2LL
Monday 5th November 2001
B e f o r e :
LORD JUSTICE CHADWICK
LORD JUSTICE LAWS
SIR PHILIP OTTON
- and -
LONDON BOROUGH OF LAMBETH
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Gordon QC and Steven Cragg (instructed by Fisher Meredith for the Appellant)
James Goudie QC and Charles Bear (instructed by Sternberg Reed Taylor & Gill for the Respondent)
HTML VERSION OF JUDGMENT
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LORD JUSTICE LAWS:
- This is an appeal, brought with permission given by the judge below, against an order made by Scott Baker J on 25 May 2001 when he dismissed the appellant's application for judicial review. As the judge said, the case concerns the nature and extent of duties imposed upon local authorities, in relation to their social services functions, by the Children Act 1989: in particular the legal quality of the duty provided for by s.17 of the Act, to which I will come in due course.
- The appellant has three children. Two of them, boys to whom I will refer as K (born on 2 February 1994) and D (born on 21 December 1995) have been diagnosed as autistic. Unhappily both have severe learning difficulties and require constant supervision. The appellant's own health has deteriorated and continues to deteriorate. The family lives in a two-bedroom local authority ground floor flat in the area of the respondent authority. This accommodation was provided under a secure tenancy in 1994. There is no garden or outside play area. The flat is and has been in a bad state of repair. It is close to a busy main road. Given the condition of her two sons which had by then been diagnosed, the appellant applied in 1998 for a transfer to other accommodation. On 21 September 1998 the council accorded the family what is called an "overriding priority", with a recommendation for a flat with four bedrooms and a garden or secured play area. A letter to the appellant's solicitors of 5 June 2000 recorded the appellant's restriction of her choice as to the location of any new home which she might be offered to four areas of south London said by the council to be generally the more popular areas, where "it will always be more difficult to get to the top of the list". They were Waterloo and Kennington, Clapham Common, Streatham, and Upper Norwood. The letter also stated that that the council "could not anticipate" when the appellant might receive an offer of accommodation: it would depend upon what was available in the neighbourhoods selected by her.
- Although the entire focus of debate at the hearings in this court and below has been directed to the construction of s.17 of the Children Act, it is plain on the facts that the appellant's concern has been to obtain a transfer of accommodation, within the council's housing transfer scheme to which I will come. The vires for such transfer schemes is not of course the Children Act; as is common ground, that is to be found in s.21 of the Housing Act 1985. The letter of 5 June 2000 is all in terms apt to refer to the housing transfer policy ("A total of 246 points have been awarded to Ms A transfer case…"[sic]). The second "decision" sought to be reviewed in these proceedings was described on the face of the claim form as "[the council's failure] to consider other lawful options for the provision of accommodation to meet Applicant's family's needs including the exercise of power pursuant to the Housing Act 1985". However this aspect of the challenge was not proceeded with. The fact that the true genesis of this dispute was an application for a transfer under the council's scheme is of course in no sense an inhibition upon the pursuit of a claim framed by Mr Gordon QC for the appellant by reference to s.17 of the Children Act, nor did Mr Goudie QC for the council suggest as much. But it tends to underline one dimension of Mr Goudie's argument, namely that the position taken by Mr Gordon upon s.17 involves an illegitimate attempt to jump the housing transfer queue.
- At length assessments were made by the council of the needs of K and D. They were seen by Beatrice Okoli, a social worker employed by the council, on 22 May 2000 together with the appellant and her third child. Reports of both assessments are before the court dated 14 August 2000. Each report states the purpose of the assessment to have been "Housing and Respite Care provision". In her witness statement Miss Okoli describes the assessments as "core children in need/child protection assessments" and states (paragraph 5) that they "were requested under the provisions of s.17 of the Children Act 1989 to have particular regard to the housing needs of the children".
- The legal effects, or asserted legal effects, of these assessments are of great importance for Mr Gordon's case. At this stage I should note some of the contents. The two reports are in very similar terms, in many passages using identical language. It is necessary only to take these following extracts from the report on D.
Under "Special needs of family members…" –
"D is very hyperactive and destructive, he has smashed toys, chairs and anything he can lay his hands on. He throws things about and would attempt to run off to the road… Ms [A] ha[s] to provide constant supervision to ensure their safety. Ms A finds the entire situation difficult and gets stressed out… Ms A stated she does everything for D… Ms A is emotionally stressed, and very anxious about the entire situation…"
Under "Family and Social Relationships" –
"Ms A stated that they hardly go out because of D's behaviour and his lack of sense of danger. The family feels isolated and trapped at home. Most of their outings is going to church."
Under "Self Care Skills" –
"Ms A provides D's personal care needs."
Under "Family's/parents/carers capacity to meet child's need" –
"Ms A stated that she has a good relationship with her children and she is committed to their upbringing… Ms A realised that the biggest obstacle is their present accommodation as it is too dangerous for the children, both indoors and outdoors, and posed severe disadvantage to their overall health and wellbeing."
Under "Environment/Housing/Finance" –
"The flat is overcrowded, and damp, and the children's bedroom windows and kitchen units were broken. The family is living in appalling conditions… [in] a location very dangerous to the children as the flat is very close to the road."
Under "Family Views" –
"Ms A referred [to] their living condition as [un]inhabitable and depressing. She does not want the children to be taken into care, rather to be re-housed to an appropriate accommodation that would meet D and his siblings' needs. Ms A would prefer to have a care package where someone could come to the house and give them support. Ms A added that she found the care package she had in the past very helpful and requested if similar package could be reinstated."
Under "Summary of Risk Factors/Capacity to change" –
"There is risk as the flat is very close to the road and D has fixation with climbing out of the window and running out from the front door… The poor condition of the flat poses a health risk to D and his siblings. There is a risk of Ms A breaking down without support package to give her a break from caring for two children with autism and behavioural difficulties."
Under "Social Work Recommendations…" –
"The family needs re-housing to an appropriate accommodation… Domiciliary package to be provided."
- Since those reports were prepared some steps have been taken. Some repairs to the property have been carried out. Steps have been taken to provide respite care. In the summer of 2001 the family took up places on a holiday play scheme. However the appellant and her children remain in the same flat. It is convenient next to describe the council's housing transfer scheme. The evidence for this appears in the witness statement of Linda McHugh, a team leader with the council.
- There are seven categories, to any of which an applicant for a transfer might be allocated. They are described by Miss McHugh (paragraph 6) as follows:
"Category A: This category relates to tenants under the right to return scheme.
Category B: This is the emergency category. This covers emergency referrals. Cases are referred to this category by the [council's housing] panel…
Category C: This relates to supply transfers e.g. transfers with some urgency including decant and major repairs and including service tenants.
Category D: This is the mainstream tenant category.
Category E: This category relates to homeless applications.
Category F: This category related to referrals including social services and environmental health referrals.
Category G: This category relates to incoming nominations."
- One might have thought that the appellant would have been placed in Category B, or (subject to referral by social services) Category F. However, she remains in Category D. Some of the history leading to this circumstance is set out in Miss McHugh's statement, and there is also an updated chronology provided by Mr Goudie. There have been delays on various fronts, including the council's housing department's consideration of the matter and the obtaining of medical advice from the family's general practitioner. It is proposed to complete a fresh assessment. Since there is no extant challenge to the council's treatment as a housing matter of the appellant's application for a transfer of accommodation, I do not propose to go into the details.
- That is a sufficient recital of the facts for the purposes of the issues which fall for decision.
THE STATUTORY PROVISIONS
- The Children Act 1989 (hereafter "CA") provides so far as relevant as follows:
"17(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.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(3) Any services provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(6) The services provided by a local authority in exercise of functions conferred on them by this section may include giving assistance in kind or, in exceptional circumstances, in cash.
(7) Assistance may be unconditional or subject to conditions as to the repayment of the assistance or of its value (in whole or in part).
(8) Before giving any assistance or imposing any conditions, a local authority shall have regard to the means of the child concerned and of each of his parents.
(10) For the purposes of this Part a child shall be taken to be in need if -
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled.
And "family", in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.
(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers form mental disorder or any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part-
"development" means physical, intellectual, emotional, social or
behavioural development; and
"health" means physical or mental health.
20(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of-
(a) there being no person who has parental responsibility for him;
(b) his being lost or having been abandoned; or
(c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
(4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child's welfare.
(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare –
(a) ascertain the child's wishes regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.
(7) A local authority may not provide accommodation under this section for any child if any person who –
(a) has parental responsibility for him; and
(b) is willing and able to –
(i) provide accommodation for him; or
(ii) arrange for accommodation to be provided for him,
(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.
27(1) Where it appears to be a local authority that any authority… mentioned in subsection (3) could, by taking any specific action, help in the exercise of any of their functions under this Part, they may request the help of that other authority, specifying the action in question.
(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
(3) The [authorities] are –
(b) any local housing authority;
Identification of children in need and provision of information
1(1) Every local authority shall take reasonable steps to identify the
extent to which there are children in need within their area.
(2) Every local authority shall –
(a) publish information –
Children's services plans
(i) about services provided by them under sections 17, 18, 20 and 24;
1A(1) Every local authority shall, on or before 31 March 1997-
(a) review their provision of services under sections 17, 20,
21, 23 and 24; and
(b) having regard to that review and to their most recent review under section 19, prepare and publish a plan for the provision of services under Part III.
(2) Every local authority –
Assessment of children's needs
(a) shall, from time to time review the plan prepared by them under sub-paragraph (1)(b) (as modified or last substituted under this sub-paragraph)…
(a) Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under –
(a) the Chronically Sick and Disabled Persons Act 1970;
(b) Part IV of the Education Act 1996;
(c) the Disabled Persons (Services, Consultation and Representation) Act 1986; or
Prevention of neglect and abuse
(d) any other enactment.
4(1) Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect.
Provision for disabled children
(a) Every local authority shall provide services designed-
(a) to minimise the effect on disabled children within their area of their disabilities;
(b) to give such children the opportunity lead lives which are as normal as possible.
(a) Every local authority shall take reasonable steps designed –
(b) to reduce the need to bring –
(i) proceedings for care and supervision orders with respect to children within their area;
(ii) criminal proceedings against such children;
(iii) any family or other proceedings with respect to such children which might lead to them being placed in the authority's care; or
(iv) proceedings under the inherent jurisdiction of the High Court with respect to children;
(a) to encourage children within their area not to commit criminal offences; and
(c) to avoid the need for children within their area to be placed in secure accommodation.
Duty to consider racial groups to which children in need belong
11 Every local authority shall, in making any arrangements-
(a) for the provision of day care within their area; or
(b) designed to encourage persons to act as local authority foster parents,
have regard to the different racial groups to which children within their area who are in need belong."
- I should next set out extracts from two sections contained in Part III of the National Assistance Act 1948 ("NAA"):
"21(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing-
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness disability or any other circumstances are in need of care and attention which is not otherwise available to them;
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.
29(1) A local authority may, with the approval of the Secretary of State, and to such extent as he may direct in relation to persons ordinarily resident in the area of the local authority shall make arrangements for promoting the welfare of persons to whom this section applies, that is to say persons aged eighteen or over who are blind, deaf or dumb or who suffer from mental disorder of any description, and other persons aged eighteen or over who are substantially and permanently handicapped by illness, injury, or congenital deformity or such other disabilities as may be prescribed by the Minister."
The words "aged eighteen or over" where they appear in ss.21 and 29 were inserted by CA s.108(5), Schedule 13 para. 11. Thus before that amendment children fell within the scope of NAA ss.21 and 29, and by CA were taken out of it. As I shall show, this circumstance is critical for Mr Gordon's argument on CA s.17. I should add that approvals and directions as contemplated by the Act have been given by the Secretary of State, and are published in a departmental circular or circulars. It is unnecessary to go into the details.
- Having regard to one dimension of the argument, it is convenient next to set out the terms of s.1(1) of the Children and Young Persons Act 1963 ("CYPA"):
"It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under the Children Act, 1948, the principal Act or the principal Scottish Act or to bring children before a juvenile court; and any provisions made by a local authority under this subsection may, if the local authority think fit, include provision for giving assistance in kind or, in exceptional circumstances, in cash."
This provision was replaced by s.1(1) of the Child Care Act 1980 ("CCA") in effectively identical terms. It was repealed by CA.
- Now I must cite certain provisions contained in the Chronically Sick and Disabled Persons Act 1970 ("CSDPA"). First, s.2(1) is in these terms:
"Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for that authority to make arrangements for all or any of the following matters, namely-
(a) the provision of practical assistance for that person in his home;
(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;
(c) the provision for that person of lectures, games, outings or other recreational facilities outside his home or assistance to that person in taking advantage of educational facilities available to him;
(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services provided under arrangements made by the authority under the said section 29 or, with the approval of the authority, in any services provided otherwise than as aforesaid which are similar to services which could be provided under such arrangements;
(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience;
(f) facilitating the taking of holidays by that person, whether at holiday homes or otherwise and whether provided under arrangements made by the authority or otherwise;
(g) the provision of meals for that person whether in his home or elsewhere;
(h) the provision for that person of, or assistance to that person in obtaining, a telephone and any special equipment necessary to enable him to use a telephone,
then, subject to the provisions of section 7(1) of the Local Authority Social Services Act 1970 (which requires local authorities in the exercise of certain functions, including functions under the said section 29, to act under the general guidance of the Secretary of State) and to the provisions of section 7A of that Act (which requires local authorities to exercise their social services functions in accordance with directions given by the Secretary of State), it shall be the duty of that authority to make those arrangements in exercise of their functions under the said section 29."
"This Act applies with respect to disabled children in relation to whom a local authority have functions under Part III of the Children Act 1989 as it applies in relation to persons to whom section 29 of the National Assistance Act 1948 applies."
S.7(1) of the Local Authority Social Services Act 1970 ("LASSA"), referred to in s.2(1) of CSDPA, provides as follows:
"Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State."
- The National Health Service and Community Care Act 1990 ("NHSCCA") provides in part:
"46(1) Each local authority-
(a) shall, within such period after the day appointed for the coming into force of this section as the Secretary of State may direct, prepare and publish a plan for the provision of community care services in their area;
(b) shall keep the plan prepared by them under paragraph (a) above and further plans prepared by them under this section under review; and
(c) shall, at such interval as the Secretary of State may direct, prepare and publish modifications to the current plan, or if the case requires, a new plan.
(3) In this section-
'community care services' means services which a local authority may provide or arrange to be provided under any of the following provisions-
(a) Part III of the National Assistance Act 1948…
[Other provisions are then set out; they do not include CA.]
47(1) Subject to subsection (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
(a) shall carry out an assessment of his needs for those services; and
(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services."
- Lastly, it is necessary to set out provisions contained in the housing legislation. S.21(1) of the Housing Act 1985 ("HA 1985"), which remains in force although a good deal of that statute has been replaced by measures enacted in the Housing Act 1996 ("HA 1996"), is in part in these terms:
"The general management, regulation and control of a local housing authority's houses is vested in and shall be exercised by the authority…"
Part VI of HA 1996, whose cross-heading is "Allocation of Housing Accommodation", contains these provisions:
"159(1) A local housing authority shall comply with the provisions of this Part in allocating housing accommodation.
(2) For the purposes of this Part a local authority allocate housing accommodation when they –
(a) select a person to be a secure or introductory tenant of housing accommodation held by them,
(b) nominate a person to be a secure or introductory tenant of housing accommodation held by another person, or
(c) nominate a person to be an assured tenant to housing accommodation held by a registered social landlord.
(5) The provisions of this Part do not apply to the allocation of housing accommodation by a local housing authority to a person who is already –
(a) a secure or introductory tenant,
(b) an assured tenant (otherwise than under an assured shorthold tenancy) of housing accommodation held by a registered social landlord, or
(c) an assured tenant of housing accommodation allocated to him by a local housing authority.
(7) Subject to the provisions of this Part, a local housing authority may allocate housing accommodation in such manner as they consider appropriate.
161(1) A local housing authority shall allocate housing accommodation only to persons ("qualifying persons") who are qualified to be allocated housing accommodation by that authority.
162(1) Every local housing authority shall establish and maintain a register of qualifying persons (their "housing register").
163(1) A person shall be put on a local housing authority's housing register if he applies to be put on and it appears to the authority that he is a qualifying person.
(2) A local housing authority may put a person on their housing register without any application, if it appears to them that he is a qualifying person.
167(1) Every local housing authority shall have a scheme (their "allocation scheme") for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.,,
(2) As regards priorities, the scheme shall be framed so as to secure that reasonable preference is given to –
(a) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions,
(b) people occupying housing accommodation which is temporary or occupied on insecure terms,
(c) families with dependent children,
(d) households consisting of or including someone who is expecting a child,
(e) households consisting of or including someone with a particular need for settled accommodation on medical or welfare grounds, and
(f) households whose social or economic circumstances are such that they have difficulty in securing settled accommodation.
The scheme shall also be framed so as to secure that additional preference is given to households within paragraph (e) consisting of someone with a particular need for settled accommodation on medical grounds who cannot reasonably be expected to find settled accommodation for themselves in the foreseeable future.
(8) A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme.
169(1) In the exercise of their functions under this Part, local housing authorities shall have regard to such guidance as may from time to time be given by the Secretary of State…"
Part VII of HA 1996 contains the measures which establish the obligations of local authorities towards homeless persons. These provisions figure in Mr Goudie's submissions, but I need not set them out for the purpose of addressing his argument.
THE ISSUE FORMULATED
- Mr Gordon submits that CA s.17 enacts a duty which is enforceable in judicial review proceedings at the suit of any individual child to whom it is owed. But he does not suggest that s.17(1) taken on its own has this effect. I take him to concede, and I would certainly hold, that the subsection's extremely wide and general language precludes any such outcome. Rather his case is that once a child's needs have been assessed by the council (as happened here), the general duty becomes specific. It "crystallises" into a concrete obligation to meet the needs identified by the assessment. He accepts that in deciding how to perform the duty, the council may have regard to its resources or the limitations upon them: but only (as I understood him) to the extent that the needs identified by an assessment in any particular case might be met in different ways or by different forms of provision. In that case the council would in principle be entitled to select the most economical means of meeting the assessed need. But meet it they must.
- It is convenient at this stage to pause for a moment at Mr Gordon's concession as regards the relevance of the local authority's resources. A number of cases were cited to us which address the obvious tensions between the limits or scarcity of a public body's resources, and its duties arising under statutes which allow no relief or excuse to the public body in light of its financial constraints. The most notable was Ex p. Barry  AC 584, in which their Lordships' House had to consider CSDPA s.2. Another was the decision of Henriques J in Batantu (unreported, Administrative Court, 8 November 2000). Counsel's skeleton arguments contained passages dealing with such matters. But it seems to me that problems of this kind lie very far from the core issues which we must confront in the present case. If Mr Gordon is wrong, then of course they do not arise at all; if he is right, then I cannot see that want of resources would afford the local authority any greater scope to tailor its duty than Mr Gordon, by his concession, anyway accepts; to allow anything more would turn a duty into a discretion. While Mr Goudie may not agree with this, it is to my mind instructive that the passage in his skeleton (paragraphs 28 – 33) dealing with the relevance of resources shades in truth into an argument on the real issue in the case: whether a "crystallised" (and thus enforceable) duty is to be got out of s.17, as Mr Gordon submits. Subject to what I say below in paragraph 34, I do not think we need take time considering the actual or potential difficulties which flow from the limits of an authority's resources.
- As to that, Mr Gordon's position depends heavily upon inferences he would have us draw from other statutory provisions read alongside s.17. Crucially, he urges that the duty for which he contends must exist given the terms of NAA s.21, its judicial interpretation not least in the case of Kujtim  4 AER 161, and the fact that (as I have shown) children were taken out of the scope of NAA by the insertion in ss.21 and 29 of the words "aged eighteen and over" by CA s.108. In Kujtim, he said, this court accepted an analysis of s.21 which in effect vouchsafed the existence of a "crystallised" duty just as on his argument arises under s.17: despite the differences in language the mechanics of s.17 operate in much the same way as those of s.21, and s.17 offers protection for children just as s.21 now offers protection for adults. Mr Gordon submits that it is unthinkable that by taking children out of the s.21 regime – and doing so by a provision contained in the CA itself: a "great reforming statute" (per Ward LJ in G v London Borough of Barnet  1 FCR 743 paragraph 29(2)) – Parliament intended to downgrade children's rights. S.21, he says, undoubtedly confers specifically enforceable rights, once crystallised. Accordingly, s.17 can do no less. If it does less, then quite apart from its rank improbability such a state of affairs would constitute a systematic violation of Convention rights: it would involve discrimination contrary to ECHR Article 14 in favour of adults over children in relation to the right to family life guaranteed by Article 8. Accordingly if (contrary to Mr Gordon's primary case) s.17 does not, upon conventional canons of construction, impose a specific enforceable duty crystallised by assessment in any particular case, the court should nevertheless construe it as so providing, having regard to our obligations under s.3 of the Human Rights Act 1998.
- Mr Gordon's argument possessed many other refinements. He was at pains to demonstrate the close connection between assessment of need and its fulfilment once assessed, a connection which he says is plainly evident in the text of the Secretary of State's Children Act Guidance: see for example paragraphs 2.5 and 2.10 of the Guidance, which I will not set out. He accepted, of course, that the Guidance is not a legal resource for the construction of the statute. However he points to s.7 of LASSA (which I have cited), and to the decision of Sedley J as he then was in Ex p. Rixon (1998) 1 CCLR 119. In that case the learned judge stated (123J-K):
"In my view Parliament by s.7(1) has required local authorities to follow the path charted by the Secretary of State's guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course."
- Mr Goudie submits that s.17 creates no more than a "target" duty, an expression first used by Woolf LJ as he then was in Ex p. Ali (1990) 2 Admin LR 822, a case on s.8 of the Education Act 1944. S.8(1) provided so far as relevant:
"It shall be the duty of every local education authority to secure that there shall be available for their area sufficient schools –
(a) for providing primary education…; and
(b) for providing secondary education."
Woolf LJ stated at 828C-E:
"This type of duty can be described as a "target duty"… there is built into s.8 a 'degree of elasticity'. While there are a number of standards which are required to be achieved by the local education authority, the setting of those standards is, in the first instance, for the local education authority alone to determine as long as those standards are not outside the tolerance provided by the section."
- On Mr Goudie's case a duty of this kind is not enforceable at the suit of an individual (in public or in private law proceedings) because it is owed to society at large or a section of society; it is not the legislature's intention by such a measure to confer specific rights upon which an individual might rely. Thus the appellant is out of court on the straightforward ground that she has established no statutory right of whose violation she may complain. If there were nothing more to say about s.17 than that it goes no further than create such a "target" duty, Mr Goudie's position would be impregnable. But as I have said Mr Gordon's case is that however general the words of s.17(1), the target duty "crystallises" into a concrete, enforceable one when a child's needs have been specifically assessed. The question in the case is whether that is right.
THE ISSUE CONFRONTED
- In my view the first point to make, all too obvious perhaps, is that if Parliament had intended to provide for a two-stage process of the kind for which Mr Gordon contends, one might expect it to have said so. Nothing, it may be thought, would have been simpler than to enact a provision which in terms obliged the local authority to meet the needs of an individual child upon their being assessed. The closing words of CSDPA s.2 offer a model for such a provision. The elaborate scheme contained in the education legislation for the making in respect of any child of a statement of special educational needs, and the imposition of specific duties upon the local education authority to fulfil the statement once made (I need not, I think, set out the details) offers another. I consider it very telling that there is nothing like this in s.17 or elsewhere in CA. As Mr Gordon developed his argument it struck me that in some measure his points were better addressed by a politician to the legislature than by counsel to a court of law. However vigorous the judicial review jurisdiction, we have to bear in mind that from first to last this case is about the construction of a statute; conditioned, certainly, by the Human Rights Act 1998 if a true Convention point arises, but yet no more nor less than the construction of the Act.
IMPACT OF THE NAA
- Mr Gordon must persuade us that the enforceable duty for which he contends is to be found in s.17 by a process of necessary implication arising from the terms of other legislation in the field of social provision, most particularly (as I have made clear) NAA s.21 as it has been interpreted in Kujtim. I will turn at once to deal with this submission. I make it plain at the outset that in my view Mr Gordon faces formidable difficulties. The derivation of a specific enforceable duty from an implication is, by our ordinary canons of statutory interpretation, an unlikely outcome. More than this, however, it seems to me with respect that there is much force in this passage from the judgment of Scott Baker J below (paragraph 24):
"Community care legislation has grown piecemeal through numerous statutes over the last half century. There are many statutes aimed at different targets whose provisions are drawn in differing language. Each Act contains its own duties and powers. Specific duties have to be distinguished from target or general duties and duties from discretions. Sometimes a local authority has several ways in which it can meet an obligation. Some provisions overlap with others and the inter-relationship is not always easy. The Children Act 1989, as the Children Act Guidance points out, was intended to bring together into one statute most of the private and public law about children thereby replacing complex and fragmented legislation. It also draws together local authorities' functions towards children which existed under the Child Care Act 1980, the National Assistance Act 1948 and Schedule 8 of the National Health Service Act 1977. It therefore seems to me that the Children Act's true construction is more likely to be found within its four corners than from the terms of other legislation as submitted by Mr Gordon."
- I have already set out the material provisions of NAA. Mr Gordon's argument resting on it has two dimensions, both of which I have foreshadowed. The first is that the reasoning in Kujtim shows (in the context of a similarly constructed statutory provision) how a duty enforceable by the individual may be got out of general words by the catalyst of an assessment process. The second is that in taking children out of the NAA regime (by insertion of the words "aged eighteen or over") Parliament in CA cannot have intended to diminish the scope of the duties owed to children by local authorities: CA has to be taken to have made no lesser provision, and it is to be found in s.17. I will deal with these arguments in turn. Then I will look at some of the learning, aside from Kujtim, which has been cited to us, and after that deal with other miscellaneous considerations which have arisen in the course of argument.
Kujtim  4 AER 161
- In Kujtim the appellant had been assessed by the local authority under s.47(1) NHSCCA as being a person in urgent need of care and attention which was not otherwise available to him. Potter LJ identified the first issue in the case thus (171d):
"… whether, following assessment of an applicant's needs as a person in urgent need of care within the wording of s.21(1)(a) of [NAA], the local authority had a duty (as opposed to a discretion) to provide him with Part III accommodation."
Potter LJ proceeded to cite authority, notably the judgment of Lord Woolf MR as he then was in Ex p. Help the Aged  4 AER 532. In that case the court was clear, as had been Jowitt J at first instance ( FCR 392), that once a local authority conclude in a particular case that a need covered by NAA s.21 exists, they must provide accommodation of a kind to meet the need for care and attention which arises. Then after further citations, from Ex p. M  2 FCR 259, Ex p. Tammadge (1998) 1 CCLR 581, and the decision of their Lordships' House in Ex p. Barry to which I have referred, Potter LJ said this (174d – 175d):
"29. Mr Underwood argues that if, as I consider to be the case, the language of s.21(1)(a) is such that it gives rise to a 'general' public law duty rather than a particular private law duty of the kind held to exist under s.2 of [CSDPA] (see Ex p. Barry)…, then it is no more than a 'target' duty, in the sense of the label used by Woolf LJ in R v Inner London Education Authority ex p. Ali (1990) 2 Admin LR 822 at 828 in relation to s.8 of the Education Act 1944. To the extent that such submission is advanced to support the proposition that an applicant has no remedy available by way of judicial review in circumstances where he is peculiarly affected by the refusal of the local authority to provide him with Pt III accommodation despite a positive assessment of need, I reject it; I certainly do not find anything in the judgment in Ex p Ali which supports that proposition… Whilst I accept that a person aggrieved by a breach by a local authority of its duty under s.21(1)(a) to provide Pt III accommodation to persons positively assessed as falling within its provisions may well have no right as an individual to claim damages for that breach, that does not in my view prevent him from seeking or obtaining by judicial review an order requiring the local authority to carry out its duty or a declaration in that respect.
The extent of the duty under s.21(1)(a) of [NAA]
30. That being so, the question which arises is whether or not there is any limitation upon the duty to provide or continue to provide such accommodation for as long as the need, once assessed, continues. In my view the position is as follows. Once a local authority has assessed an applicant's needs as satisfying the criteria laid down in s.21(1)(a), the local authority is under a duty to provide accommodation on a continuing basis so long as the need of the applicant remains as originally assessed, and if, for whatever reason, the accommodation, once provided, is withdrawn or otherwise becomes unavailable to the applicant, then (subject to any negative reassessment of the applicant's needs) the local authority has a continuing duty to provide further accommodation."
- Peter Gibson LJ and Blofeld J agreed with the judgment of Potter LJ, and added no separate reasoning. For my part I would accept that the approach taken by Potter LJ in Kutjim may be characterised or described in Mr Gordon's language, as demonstrating that the operation in practice of NAA s.21 involves the notion of a "target" duty which becomes "crystallised" and thus enforceable upon the happening of an event, namely a needs assessment; but that of course cannot conclude the question whether a like result is to be got out of CA s.17.
- As with any issue of construction, the starting-point is necessarily the language of the measure under consideration. In my view the differences of language between CA s.17 and NAA s.21 are of the first importance. S.21(1) draws a contrast between the Secretary of State's approval of "arrangements for providing… accommodation", in which case the local authority has a discretion to make the arrangements, and the issue by the Secretary of State of directions, in which case the local authority is obliged to do so. S.21(1)(a) and (b) then define the classes of persons for whom arrangements may or must be made. The process of assessment, effected under NHSCCA s.47, is the means by which the authority determines whether an individual falls within one of the classes. Where (as has of course happened) the Secretary of State has given mandatory directions under s.21(1), I find it difficult to see how the statute could be read otherwise than as imposing a concrete duty on the authority to see to it that accommodation is provided for persons assessed as falling within one or other of the classes specified, though I recognise that the section's passage through the courts shows that the contrary has been argued. The use of the formula "make arrangements for providing", as opposed perhaps to the simple verb "provide", gives no leeway: I think it merely reflects the fact that the Secretary of State's directions will inevitably be cast in general terms and refer to classes, not individuals. Subs.(2) supports this approach. It steers the authority's decisions as to the nature of the accommodation for which arrangements are to be effected; its premise is that specific provision has to be made for different classes of persons.
- None of these features, nor any like them, appear in CA s.17. The structure of the section is entirely different. That is not least reflected in Mr Goudie's submission, which I would accept, that whereas NAA s.21 is a provision of last resort, CA s.17 is (as he put it) a "proactive" provision. A provision of last resort, if it is to mean anything, must surely require specific things to be done in individual cases. I have already referred to the wide and general language of s.17; and I would emphasise in particular the words of s.17(1), to which one finds no analogue in NAA s.21. Some of the provisions contained in CA Schedule 2 Part I, which I have set out, also as it seems to me militate against a construction which would recognise the existence of a duty enforceable at the suit of an individual child. Thus by way of example paragraphs 4(1), 6, and 11 may be said to require authorities to take steps of a strategic, or community-wide, nature. Other features of the scheme include the discretionary nature of the provisions contained in s.17(3) and (6), which the judge below considered pointed away from Mr Gordon's approach, and the extremely broad description of "child in need" given by s.17(10): so broad that (again, as the judge found) its application in practice leaves to the service-provider an area of judgment where there may be more than one reasonable view. This also points away from a construction which would impose a duty such as Mr Gordon urges, as perhaps, does s.27 (providing for requests to be made of other authorities for assistance). In addition, if Mr Gordon were right CSDPA s.28A would as I see it be redundant, being merely repetitive (in effect) of s.17: not least given Mr Gordon's express submission in reply that we should imply into s.17 a duty giving like protection to that afforded by CSDPA s.2.
- In short, neither the terms of NAA s.21 nor the reasoning of the court in Kujtim can in my judgment support a construction of CA s.17 which would produce, in practice, an analogous result.
Children taken out of the NAA regime
- As I have shown, children were removed from the scope of NAA ss.21 and 29 by the insertion by amendment of the words "aged eighteen or over" in both subsections; and the amendment was made by CA. To my mind there is very great force in Mr Gordon's submission that Parliament cannot have intended by CA itself – that "great reforming statute" – to deprive children of rights which they had enjoyed under earlier legislation. The intention must have been to confer by CA substituted rights, no less generous or beneficial than the provision made by NAA. Given the formidable difficulties he faces arising out of the language of s.17 Mr Gordon must demonstrate, if this argument is to take flight, that no such substitute rights can be found anywhere else in the statute: that s.17 is the only candidate.
- NAA s.21 is concerned, and only concerned, with the provision of residential accommodation. Accommodation is nowhere mentioned in s.17 (I refer briefly below to an argument, canvassed at the hearing at the court's invitation, to the effect that s.17 neither empowers nor requires the provision of accommodation); but it is the very subject-matter of s.20. Now, as it seems to me the terms of s.20, which I will not repeat, are such that on its proper construction the section is dealing with the case where a child needs to be provided with somewhere to live because there is no parent or person having parental responsibility to provide it for him or (see subs.(4)) his welfare requires that he be accommodated away from the parent. Other sections, which I have not set out, also refer to the provision of accommodation: ss.21 (children in police protection or detention or on remand), 22 (general duty of local authorities towards children looked after by them), and 23 (provision of accommodation and maintenance by a local authority for any child looked after by them). In my judgment these measures, particularly s.20, make provision by no means less ample than that given by NAA for accommodation to be afforded to children who for one reason or another are, to use a summary expression, on their own.
- But those are the very circumstances in which, before CA, the resource of NAA s.21 would most plainly have availed children: children on their own. It is critical to have in mind that s.21 is not framed so as merely to afford housing to those who need it. The classes of persons who qualify for the section's benefit are (and were before children were taken out) persons "in need of care and attention which is not otherwise available to them". A child who fell within that class before the coming into force of CA s.108 (which as I have said made the relevant amendment to NAA) would now, in my view, fall within the scope of CA s.20 at any rate for most sets of circumstances that can reasonably be foreseen. I would not distinctly hold that s.20 (with or without ss.21 – 23) covers every conceivable case in which a child might previously have invoked NAA s.21, but it is at least difficult to formulate an instance in which NAA s.21 would bite but CA s.20 would not. Since usually (of course) a child will be living with a parent, parents, or it may be foster-parents, they will in the ordinary way provide "care and attention".
- In a case where the child's needs indicate a requirement for accommodation of a particular kind or having particular characteristics, and the child remains in a family unit with parent or parents (so that CA s.20 is not engaged), Parliament has in my judgment vouchsafed that provision is generally to be made through the housing legislation. There are in essence three categories: the homeless persons provisions now contained in Part VII HA 1996, the policies for transfers applied by any housing authority, which are authorised by HA 1985 s.21(1), and an authority's allocation scheme established under HA 1996 Part VI, much of which I have set out. It is to my mind obvious that the legislative intention contemplates that families with special housing needs arising from disabilities or difficulties suffered by children of the family should have those needs met within the authority's regime or regimes of housing provision established under the Housing Acts, and not otherwise. I have set out the steer given by HA 1996 s.167(2) as regards the priorities an allocation scheme should respect, and I repeat for convenience s.167(8):
"A local housing authority shall not allocate housing accommodation except in accordance with their allocation scheme".
In Ex p. Monaf (1988) 20 HLR 529 this court had to consider the relation between the then statutory provisions relating to the care and welfare of children respectively arising under the housing and child care legislation. The case was decided before the enactment of CA, and the judgment of the court accordingly contains references to CCA, and of course to the then current housing legislation. The court's description of the relationship between the two categories of provision, though I will not lengthen this judgment by setting it out, is with great respect useful and instructive and as I see it by no means at odds with the conclusions I have reached upon this part of the case.
- HA 1996 s.167(8) exemplifies a more general point. If Mr Gordon were right, the local authority would be obliged to provide housing under CA s.17 (where the relevant assessment so indicated) quite outside the four corners of their duties as housing authority, including their duties under the homeless persons legislation (HA 1996 Part VII). As Mr Goudie submitted, this rubs against the provisions of Part VII relieving the authority of their duty where an applicant for housing is intentionally homeless; more generally, it allows a family with a child or children whose assessed needs point to a requirement of accommodation of a particular size or kind not merely to jump the queue, but to turn it into a rabble: what if there are so many children with such needs that the council cannot possibly satisfy them all? There is no statutory scheme to establish priorities. Mr Gordon would presumably say that the authority must buy in accommodation to meet the needs it has assessed, if that is what is required. In that case, from the resources point of view (see paragraphs 17 and 18 above) the thing is entirely demand-led. In my judgment such a scenario cannot live with the careful and exhaustive provisions of the housing legislation, principally contained in HA 1996 Parts VI and VII. The position is all the more stark when one recalls that the structure of local government outside the metropolis is in many cases such that housing functions and social services functions for the same area are in the hands of different authorities: the district council and the county council. At all events it is to my mind obvious that the legislature is looking at a world in which resources are not infinite: it is just such a world that requires the ordering of priorities between one case and the next, and that in effect is what local authorities do under the aegis of the housing legislation.
- Moreover we should not I think forget that CA contains major provisions relating to children in care or to be taken into care. We were not invited to travel into the detail of those parts of the Act. They are, as is well known, wide-ranging and comprehensive. They are no doubt part of the equation arising for consideration on this part of the case. For present purposes it is enough to say that there is ample provision outside s.17 to take up the slack left by the insertion into NAA of the words "aged eighteen and over": principally CA s.20 (and ss.21 – 23), together with the housing legislation and the mainstream care provisions in CA.
- I understand counsel to be agreed that no binding authority constrains us in this matter, in either direction. There is, however, learning to which I should certainly refer. Mr Gordon submitted that some cases recognise s.17 as imposing an enforceable duty owed to a child in need, and cited Ex p. Bradford (1998) 1 CCLR 294 and Ex p. Tammadge (1998) 1 CCLR 581. However as the judge pointed out (paragraph 27), in these and other cases, such as Ex p. K (2000) 3 CCLR 141 and Ex p. C (2000) 3 CCLR 122, 128A, the point as to the nature of the s.17 duty was, so far as it was addressed at all, conceded without argument. Mr Gordon relies also on some remarks of Lord Templeman in Ex p. Smith  2 AC 402, 410F-G:
"Failing any acceptable solution, it would have been the duty of the social services authority to protect the children of Mr Smith by providing financial assistance towards the accommodation of the family or by exercising the other powers available to the social services authority under the Children Act 1989."
These observations were obiter, as was stated by Ward LJ in G v London Borough of Barnet  1 FCR 743 and acknowledged by Scott Baker J in the present case.
- There are some judicial observations which favour the view that s.17 creates a "target" duty only: see for example Ex p. B 3 CCLR 15 per Latham J as he then was, and X v Bedfordshire CC  2 AC 633 per Sir Thomas Bingham MR at 659C-D and Peter Gibson LJ at 678D-E. Mr Goudie submitted that particular assistance is to gained from the judgment of Auld J as he then was in Ex p. B  ELR 357. At 377C-F he said:
"… the council owed a general duty under s.17(1) of the Act to promote the welfare of the children in need in its area. Whether it fulfils that general duty, in particular by the provision under s.18 of appropriate day care for such children, cannot be tested on a child-by-child basis. There will inevitably be instances where the overall provision is appropriate yet not ideal for certain individual children. The particular circumstances of any individual child must, therefore, be looked at in the context of the general 'range and level of services' provided. In such an exercise it is essentially a matter for the local authority, not the court, to decide what consideration and what weight should be given to the circumstances of any individual child or children when his or their needs or interests may conflict with the appropriate provision overall. Secondly, the weight which a local authority should give to the general circumstances of children in need for whom it must provide day care one way or another, when balancing them against its financial and budgetary constraints, must also be a matter for its judgment and experience. It is certainly a matter upon which the court would rarely be competent to intervene on the ground of irrationality."
- In G v London Borough of Barnet  1 FCR 743
- Ward LJ, with whom May and Rix LJJ agreed, said this at paragraph 16 of his judgment:
"Section 17(1) imposes a general duty on the local authority, in addition to other duties imposed upon them, firstly to safeguard and promote the welfare of children in the area who are in need and secondly so far as is consistent with their duty to promote the upbringing of such children by their families. It is to be observed, however, that the duty is performed by providing a range and level of services appropriate to those children's needs. Given that there is a wide range of choice, it has to be inferred that there is power to do one or more of many things to meet the general duty."
It seems to that these observations march with what was said by Auld J in Ex p. B, and I agree with the reasoning in both cases.
- If my Lords agree with what I have so far said, then the case is concluded against the appellant; but out of deference to counsel's arguments I should deal with certain further discrete points that arose at the hearing.
Does s.17 empower or require the provision of accommodation?
- There is a respectable argument to the effect that s.17 is not concerned with the provision of accommodation at all. As I have made clear, accommodation is nowhere referred to in s.17 (or in Schedule 2 Part I), but is specifically dealt with in ss.20 – 23. Mr Goudie did not however submit so much; indeed his clients would not welcome an authoritative finding in this court to the effect that the provision of accommodation would be outwith the council's powers arising under s.17, lest there should be lurking around the corner some unforeseen set of circumstances which might call for the provision of accommodation where, for one reason or another, it could not be provided under any of the council's other powers. Given my view that s.17 does not in any event create or impose an enforceable duty, I do not find it necessary to decide this question. I note in passing Mr Gordon's reference to authority showing that the term "assistance" in CCA s.1(1) included the provision of accommodation: Tilley v Wandsworth Borough Council  1 WLR 854; there had been like authority in relation to CYPA s.1(1), which as I have said was repealed and replaced by CCA. Given that CCA was repealed by CA, Mr Gordon's argument is, again, that s.17 must be taken as allowing no less ample provision. In Ex p K (2000) 3 CCLR 141 Mr Nigel Pleming QC, following Ex p. Bradford (1998) 1 CCLR 294, held that s.17 empowered the provision of accommodation. I think with respect that is probably the better view, not least given the reference in s.17(6) to "assistance in kind".
LASSA s.7 and the Secretary of State's Guidance
- I have referred (paragraph 19) to Mr Gordon's reliance on the decision of Sedley J as he then was in Ex p. Rixon (1998) 1 CCLR 119, in the context of his submissions as to the force to be attached to the Secretary of State's Guidance. I agree with Auld J's remarks in Ex p. B (I have already cited the case) at 361B – C:
"Volume 2 of the Guidance, in accordance with which the council must act, in Chapters 2 and 3, under the respective headings 'Service Provision' and 'Range of Services', sets out some requirements of a general… nature as to the way in which local authorities should make appropriate provision for day care and says something about consultation. As to the former, it is directed to the way in which a local authority should determine its range and level of services overall, and does not suggest that, in such determination, it should be governed by individual circumstances."
Auld J then set out an extract from paragraph 2.11 of the Guidance which I need not replicate. In my view the Guidance does not advance Mr Gordon's case. As he would accept, the Guidance cannot make an enforceable duty out of s.17 if it is not otherwise to be found there. And he cannot show that the Guidance requires a local authority to act, on facts such as those arising in this case, as if there were such a specific duty. It is to be noted that LASSA s. 7 speaks of "general guidance".
The Human Rights Act 1998
- If Mr Gordon could have shown that the effect of taking children out of the NAA regime was that the legislation discriminated against them in favour of adults as regards the provision of accommodation following an assessment of need, he might have been on strong ground in submitting that there arose a violation of the anti-discrimination provision contained in Article 14 of the European Convention on Human Rights in the context of the State's approach to the right to family life under Article 8. But in my judgment, for the reasons I have given, no such thing is demonstrated. The premise of any substantial argument based on the Convention is accordingly not made out.
CONCLUSION AND POSTSCRIPT
- For all the reasons I have given, I would dismiss this appeal. Mr Gordon's submissions amount to a sustained and imaginative attempt to make bricks without straw. I should say, however, that Mr Goudie rightly accepted that in acting or declining to act under s.17 a local authority is by no means beyond the reach of judicial review. It is constrained by all our established public law precepts. It must not fetter its discretion; its particular decisions must satisfy the rule of reason, as the Wednesbury case enjoins; there may be contexts in which issues of fair procedure would arise. But there is no specific duty enforceable at the suit of the individual.
- I would add a postscript. As I ventured to point out in the course of argument, we need to bear in mind the elementary but important legal fact that a local authority, being a creature of statute, has no inherent power and can only do what Parliament authorises it to do. Parliament may wish to confer on local authorities a function – an area of power - in a particular field, which is then to be administered or exercised so as to fulfil certain policy ends which are specified in the enabling statute. This, as it seems to me, offers a useful way of looking at CA s.17. The section first provides local authorities with the vires to act in a whole series of ways, only partially specified in the legislation, to promote the welfare of children; to that extent the Act confers a function. I think the use of the term "functions" in CA s.17(3) and (6) is not without significance. Secondly however authorities are not to view the function so conferred in neutral terms; they are positively to exercise it to meet the aim in view; but how they do so in any given case is for them. This is the nature of the general duty which s.17 imposes.
SIR PHILIP OTTON:
- I agree that this Appeal should be dismissed. I have considered the judgments of the two other members of the court (which I have read in draft), with considerable care on account of the significant divergence of view regarding the scope of s.17. On reflection I have come to the conclusion that I share the views of Chadwick LJ that s.17 does not empower or encompass the provision of accommodation.
- If it had been Parliament's intention to include the provision of accommodation the draftsman would have had no difficulty in incorporating this feature within the section itself or within a definition section. Accordingly as a matter of construction I would not interpret the section to include accommodation within its scope. If I had been persuaded that a strict interpretation would disadvantage children and preclude them from any protection in regard to accommodation I might have been tempted to adopt a more purposive approach. However I am satisfied that the Children Act 1989 should not be considered in isolation but in the context of the whole of the social legislation which exists to protect all the vulnerable and disadvantaged members of society. To my mind the Housing Act 1996 is another integral part of this all-embracing body of legislation. The needs of Ms A and of her disadvantaged children are inextricably linked. There is clearly a housing 'need' within the 1996 Act which one way or another, requires an allocation of accommodation from the limited housing stock according to the application of the principles of priority. It would be wholly impractical for a local authority such as Lambeth to have to decide whether a duty to provide accommodation under s.17 of the children Act in such a case as this family should override or take precedence over an established need within the Housing Act. In so far as a purposive approach is appropriate I consider that to accede to Mr Gordon's albeit impressive argument would be to impose an impossible burden upon the respondent Council.
- I wish to add that I would hope that following this decision this distressing case could be re-considered on its merits by the Housing Authority as soon as possible as I share Laws LJ's surprise (even unease) at the category in which the appellant and her children have been placed. This desperate and devoted mother needs improved accommodation as well as services for her two autistic children.
LORD JUSTICE CHADWICK:
- I agree that this appeal should be dismissed. In adding some observations of my own, I gratefully adopt the rehearsal of the facts and the citation of the relevant statutory provisions set out in the judgment which Lord Justice Laws has delivered.
- The appellant is the mother of two boys who, on the basis of assessments carried out on behalf of the respondent council, are to be taken as "children in need" for the purposes of Part III of the Children Act 1989 – see section 17(10) of that Act. Their needs, as assessed, include the provision of appropriate accommodation in which they can live with their mother and her other child as a family unit. The accommodation in which the family now live does not meet that need. The question on this appeal is whether, in those circumstances, the effect of section 17(1) of the 1989 Act is to impose upon the Council a duty, enforceable in public law proceedings, to meet that need by providing, or making arrangements for the provision of, suitable alternative accommodation. The answer to that question, as Lord Justice Laws has pointed out, turns on the true meaning and effect of the relevant legislation. The question is, essentially, one of statutory construction.
- In construing the provisions in Part III of the Children Act 1989 it is necessary to have regard to the amendment, made by that Act, to the provisions formerly in section 21 of the National Assistance Act 1948. As enacted and subsequently amended by the Local Government Act 1972, section 21(1)(a) of the 1948 Act required a local authority, with the approval of the Secretary of State and to such extent as he might direct, to make arrangements for providing residential accommodation for persons who by reason of age, infirmity or any other circumstances were in need of care and attention which was not otherwise available to them. "Persons . . . in need" for the purposes of that section, as enacted, included persons who were under the age of eighteen – that is to say, persons who were subsequently to be within the description "children" in the Children Act 1989 – as well as persons who were over that age. By an amendment made by section 108(5) of, and paragraph 11(1) of schedule 13 to, the 1989 Act, children were taken out of the class of "persons . . . in need" for whom a local authority is to provide residential accommodation under section 21(1)(a) of the 1948 Act. It is, to my mind, obvious that that amendment reflects the intention of the legislature, when enacting the 1989 Act, that the obligations of a local authority in relation to the provision of residential accommodation for children in need, formerly imposed by section 21(1)(a) of the 1948 Act, were thereafter to be found in Part III of the 1989 Act itself.
- It is, therefore, a matter of no surprise to find that Part III of the 1989 Act does contain provisions which are specifically directed to the provision of accommodation for children in need. Section 20(1) of the Act requires a local authority to provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care. But that obligation is subject to the restriction in section 20(7) of the 1989 Act. A local authority may not provide accommodation under section 20 for any child in the event of objection by any person who has parental responsibility for him and is willing and able to provide accommodation for him. And any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under section 20 - see section 20(8) of the Act. Section 21 makes special provision for the reception and accommodation of children who are removed or kept away from home under Part V of the Act. Section 22 of the 1989 Act imposes duties on a local authority in respect of children who are "looked after" by that authority. In that context, a child is looked after by a local authority if he is in their care, or if he is provided with accommodation by the authority in the exercise of any functions (including, in particular, functions under the Act itself) – see section 22(1)(b) of the Act. Section 23 requires a local authority to provide accommodation for any child in their care.
- The common feature of the provisions in Part III of the Act to which I have just referred is that the obligation of a local authority to provide residential accommodation for children in need, under those provisions, is confined to circumstances in which, for one reason or another, the child is not living in a family unit with his parent or parents, or with some person having parental responsibility for him; or where his welfare requires that he should not continue to live in the family unit. As Lord Justice Laws has put it, those provisions require a local authority to provide residential accommodation for children who are "on their own".
- I agree, also, with the view - for the reasons which Lord Justice Laws has given - that it is difficult to conceive of circumstances in which a local authority would have been required by section 21 of the 1948 Act to provide residential accommodation for a person under the age of eighteen but would not be required to provide such accommodation under the provisions in Part III of the 1989 Act to which I have referred; in particular, would not be required to provide accommodation under section 20 of the 1989 Act. The effect of the 1989 Act in this context, as it seems to me, is to give recognition to the principle that the person primarily responsible for the provision of residential accommodation for a child is the parent (or other person having parental responsibility) with whom that child is able to live as part of a family unit; and that, accordingly, the circumstances in which a local authority should be required to provide accommodation for children in need are not necessarily the same as those in which the authority should be required to provide accommodation for an adult in need. The provisions of the 1989 Act to which I have referred may be seen as providing a new statutory scheme – a scheme which is more focussed but no less ample than that in section 21 of the 1948 Act – within which a local authority is required to provide accommodation for children in need.
- It is with those considerations in mind that I am led to the conclusion that section 17 of the Children Act 1989 is not, itself, directed to the provision of accommodation. I am not persuaded that Parliament intended – when declaring in section 17(1) of the 1989 Act that it shall be the general duty of every local authority (in addition to the other duties imposed on them by Part III of the Act) to safeguard and promote the welfare of children within their area who are in need by providing a range and level of services appropriate to those children's need – that a local authority could be required to provide residential accommodation in circumstances in which they would not otherwise be required to do so either under the subsequent provisions in Part III of the Act itself, or (more generally) under the provisions of the Housing Acts. It must be kept in mind that the housing legislation – as Parliament must be taken to have been aware – imposes detailed and comprehensive obligations on a local authority in relation to the allocation of its housing stock. Those are now found in Part VI of the Housing Act 1996, but their origin predates the Children Act 1989. The housing legislation imposes, also, detailed and comprehensive obligations on a local authority in relation to homeless persons – see Part VII of the 1996 Act.
- In carrying out their functions under the housing legislation a local authority may be expected to have regard to the needs of families with children who, themselves, are "in need" within the meaning of section 17(10) of the Children Act 1989; but those needs can and should be taken into account in the framing of the "allocation scheme" required by section 167(1) of the 1996 Act (see, in particular, section 167(2)(e) of that Act), in the formulation of the local authority's policy in relation to transfers (that is to say, the transfer of an existing tenant to alternative accommodation), and in recognising a "priority need" (under section 189(1)(c) of the 1996 Act) when providing accommodation for a family which is homeless. In my view it would be an extraordinary result – and one which, in the absence of clear words, I cannot hold to reflect the intention of Parliament – if the carefully structured provisions of the housing legislation, which are plainly intended to provide a fair allocation of resources amongst those with housing needs, were to be overridden, in specific cases, by recourse to section 17(1) of the Children Act 1989.
- As Lord Justice Laws has observed, the appellant's real concern in these proceedings has been to obtain a transfer of accommodation within the council's housing transfer scheme. The underlying problem, of course, is that the council's resources are limited. The housing transfer scheme – to the relevant provisions of which Lord Justice Laws refers – provides for categorisation with a view to giving some applicants priority over others. The present proceedings contain no challenge to the operation of that scheme. The appellant seeks, in effect, to circumvent that scheme by invoking the 1989 Act. In my view that is not an available route to the desired goal of obtaining a transfer to alternative accommodation.
- I recognise that the reasons which I have set out would have led me to dismiss this appeal on grounds which go beyond what Mr Goudie QC, on behalf of the council, would wish this Court to decide; and beyond what Lord Justice Laws has thought it necessary to decide for that purpose. Having reached the conclusion that section 17(1) of the 1989 Act is not directed to the provision of accommodation for children in need, I have thought it right to explain the basis for that conclusion. If I am wrong in that conclusion, then the appeal should be dismissed for the reasons given by Lord Justice Laws, with which (on that hypothesis) I agree.
Order: appeal dismissed with costs; section 11 order against Legal Services Commission; detailed assessment of appellant's public funded costs; permission to appeal to the House of Lords refused.PRIVATE
(Order does not form part of the approved judgment)
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