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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> A, R (on the application of) v London Borough of Croydon (Rev 1) [2009] UKSC 8 (26 November 2009) URL: https://www.bailii.org/uk/cases/UKSC/2009/8.html Cite as: [2010] 1 All ER 469, [2010] HRLR 9, [2009] 1 WLR 2557, [2009] WLR 2557, [2010] PTSR 106, (2009) 12 CCL Rep 552, [2009] UKSC 8, [2010] BLGR 183, [2010] UKHRR 63, [2009] 3 FCR 607, [2010] 1 FLR 959, [2010] Fam Law 137 |
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Michaelmas Term
[2009] UKSC 8
On appeal from: [2008] EWCA Civ 1445
JUDGMENT
R
(on the application of A) (FC) (Appellant)
v
![]()
London
![]()
Borough
of
Croydon
(
Respondents)
and one other action
R
(on the application of M) (FC) (Appellant)
v
![]()
London
![]()
Borough
of Lambeth (
Respondents)
and one other action
before
JUDGMENT GIVEN ON
26 November 2009
Heard on 20, 21, 22 & 23 July 2009
Appellant (A) John Howell QC Ian Wise (Instructed by Harter and Loveless Solicitors ) |
![]() ![]() ![]() Nigel ![]() Bryan McGuire ![]() ![]() (Instructed by Democratic and Legal Services Division) |
|
Appellant (M) Timothy Straker QC Christopher Buttler (Instructed by Bennett Wilkins Solicitors ) |
![]() ![]() Charles Bear QC Jon Holbrook (Instructed by Sternberg ![]() ![]() |
|
Intervener (Secretary of State for the Home Department) Nathalie Lieven QC Deok Joo ![]() (Instructed ![]() |
Intervener in writing (Children's ![]() Richard ![]() ![]() ![]() (Instructed by The Children's Legal Centre) |
LADY HALE
"(1) Everylocal
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 noperson
who has
parental
![]()
responsibility
for him;
(b) his being lost or having been abandoned; or(c) theperson
who has been caring for him being
prevented
(whether or not
permanently,
and for whatever
reason)
from
providing
him with suitable accommodation or care."
By section 105(1) of the Act, a "'child' means . . . a person
under the age of eighteen".
The importance of the issue
These two cases
(i) whether, as a matter of statutory construction, the duty imposed by section 20(1) is owed only to aperson
who appears to the
local
authority to be a child, so that the authority's decision can only be challenged on "Wednesbury"
principles,
or whether it is owed to any
person
who is in fact a child, so that the court may determine the issue on the balance of
probabilities;
(ii) whether the issue "child or not" is a question of "precedent"
or "jurisdictional" fact to be decided by a court on the balance of
probabilities;
and
(iii) whether section 20(1) givesrise
to a "civil
right"
for the
purpose
of article 6(1) of the European Convention on Human
Rights
and if so whether the determination of age by social workers subject to judicial
review
on "Wednesbury"
principles
is sufficient to comply with the
requirement
that the matter be determined by a fair hearing before an independent and impartial tribunal.
The construction of section 20(1)
"For thepurposes
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, areasonable
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 theprovision
for him of such services; or
(c) he is disabled, . . . "
Thus, argues Mr Charles Béar QC for Lambeth, it cannot have been the intention of Parliament
that the sorts of
professional
value
judgment involved in assessing whether a child is "in need" should be made by the court. "Child in need" is a composite term of art so that the same should apply to the assessment of age as well as need.
"If alocal
education authority gets the law
right,
or, as the lawyers would
put
it, directs itself correctly in law, the question of fact – ie has the student established the
prescribed
![]()
residence?
– is for the authority, not the court, to decide. The merits of the application are for the
local
education authority subject only to judicial
review
to ensure that the authority has
proceeded
according to the law."
Article 6
Conclusion
LORD HOPE
The section 20(1) issue
"In this Act –
…
"child" means, subject toparagraph
16 of Schedule 1, a
person
under the age of eighteen."
The question is whether the person
is, or is not, under the age of eighteen. However difficult it may be to
resolve
the issue, it admits of only one answer. As it is a question of fact, ultimately this must be a matter for the court.
The article 6(1) issue
"No specialistexpertise
was
required
to determine this issue, which is, under the new system, determined by a non-specialist tribunal. Nor, unlike the cases
referred
to [Bryan and
Runa
Begum], can the factual findings in the
present
case be said to be merely incidental to the
reaching
of broader judgments of
policy
or
expediency
which it was for the democratically accountable authority to take."
"In the modern, democratic state, many individuals are, for all orpart
of their lives, completely dependent for survival on social security and welfare benefits. Many domestic legal systems
recognise
that such individuals
require
a degree of certainty and security, and
provide
for benefits to be
paid
– subject to the fulfilment of the conditions of eligibility – as of
right.
Where an individual has an assertable
right
under domestic law to a welfare benefit, the importance of that interest should also be
reflected
by holding article 1 of
Protocol
No 1 to be applicable."
"The dispute must be genuine and serious; it mayrelate
not only to the actual
existence
of a
right
but also to its scope and the manner of its
exercise.
The outcome of the
proceedings
must be directly decisive for the
right
in question." [emphasis added]
Cases where the award of benefit is dependent upon a series of evaluative judgments as to whether the statutory criteria are satisfied and, if so, how the need for it as assessed ought to be met do not answer to that description.
LORD SCOTT
LORD WALKER
LORD NEUBERGER