CHAPTER X

CHAPTER X

Housing outside the Housing Acts

Introduction

This chapter considers the main duties and powers that public bodies have for accommodating people outside the Housing Act 1996.

In England, the Children Act 1989 Part III includes provision for accommodating children and their families. In Wales, similar provision is made by the Social Services and Well-being (Wales) Act 2014 ss34–37.

In England, under Care Act 2014 Part 1, social services authorities in England are under an obligation to provide accommodation to adults if they are satisfied that their care and support needs require such accommodation to be provided; their needs arise from, or are related to, a physical or mental impairment or illness and as a result of the adults’ needs they are unable to achieve two or more outcomes prescribed by regulations; and as a consequence there is, or is likely to be, a significant impact on their well-being. Persons from abroad are entitled to support unless their need for care arises solely from their destitution. In Wales, similar provision is made by the Social Services and Well-being (Wales) Act 2014 Part 4.

Immigration and Asylum Act 1999 Part 6 set up a scheme for the accommodation and support of adult asylum-seekers and their families, administered initially by the National Asylum Support Service and now by the UK Border Agency. Immigration and Asylum Act 1999 s4 makes more limited provision for the accommodation and support of failed asylum-seekers and other persons from abroad (‘hard cases’ support).

Only cases that are relevant to the provision of accommodation are set out in this chapter. For a comprehensive analysis of the law see:

•Broach, Clements and Read, Disabled children: a legal handbook, LAG, 2nd edition, 2016;

•Clements, Community care and the law, LAG, 6th edition, 2017;

•Knafler, Adult social care law, LAG, 2016;

•Willman and Knafler Support for asylum-seekers and other migrants, LAG, 3rd edition, 2009;

•Wise and others, Children in need: local authority support for children and families, LAG, 2nd edition, 2013.

Children and young people

In England, the powers and duties of authorities to accommodate children (and former relevant children) and their families are as follows:

a)Children Act 1989 s17(1), read with section 17(3),(6), gives authorities with a power to provide accommodation to children in need and their families (if it is provided to safeguard or promote the welfare of the child).

b)Children Act 1989 s20(1) contains a duty to provide accommodation to children in need who have no person exercising parental responsibility for them.

c)Children Act 1989 s20(4) contains a power to provide accommodation to any child within their area, including children with persons exercising parental responsibility for them, if they consider that to do so would safeguard or promote the child’s welfare.

d)Children Act 1989 s23C(4)(c) contains a duty to provide accommodation to former relevant children.

e)Localism Act 2011 s1 provides a general power of competence to authorities ‘to do anything that individuals may do’.

f)Regulations made under Nationality, Immigration and Asylum Act 2002 Sch 3 para 10A and para 10B, will, when made, require authorities to provide accommodation to children, their families and former relevant children who would otherwise be ineligible for support under Children Act 1989 Pt 3 (see Eligibility).

There is no express statutory provision that requires an authority to carry out an assessment of a child’s needs. It has been held, however, that Children Act 1989 s17 imposes an obligation to assess under the Act (see R (G) v Barnet LBC (R (Grant) v Lambeth LBC).

In Wales, authorities have a duty to meet the care and support needs of a child if he or she is in the authority’s area, he or she meets the eligibility criteria and the authority consider it necessary to meet his or her needs in order to protect the child from harm, abuse or neglect; this may include the provision of accommodation: Social Services and Well-being (Wales) Act 2014 ss34 and 37. The child’s needs meet the eligibility criteria if (i) the need arises from the child’s physical or mental ill-health, age, disability, dependence on alcohol or drugs, or other similar circumstances, or is a need that if unmet is likely to have an adverse effect on the child’s development; (ii) the need relates to one or more of a list of specified matters; (iii) the need is one that neither the child, the child’s parents nor anyone else in a parental role is able to meet; and, (iv) the child is unlikely to meet one or more of his personal outcomes (as defined by s21(4)(b)) unless care and support is provided: Care and Support (Eligibility) (Wales) Regulations 2015 SI No 1578 (W187).

Similar to the general power of competence in England, authorities in Wales may also do anything which they consider will improve the social well-being of their area: Local Government Act 2000 s2.

Which authority is responsible?

The duty under Children Act 1989 s17 and s20 and Social Services and Well-being (Wales) Act 2014 s37 falls to a local authority where a child in need is within the authority’s area.

Court of Appeal

R (Liverpool CC) v Hillingdon LBC

[2009] EWCA Civ 43; (2009) Times 13 February, 10 February 2009

Authority could not refer child to another authority without first conducting an assessment

A young male asylum-seeker applied to Liverpool for accommodation. It carried out an assessment under Children Act 1989 s20 and decided that he was an adult rather than a child. It referred him to the National Asylum Support Service which initially provided him with accommodation in Liverpool but then moved him to a detention centre in the Hillingdon area. An immigration judge, having received medical evidence, was satisfied that the applicant was a child. He was released from the secure unit and approached Hillingdon for assistance. It gave him temporary accommodation under Children Act 1989 s17 but, on discovering he wished to live in Liverpool, sent him back to that council’s area without conducting an assessment under section 20 (as to age or otherwise). Liverpool’s claim for judicial review of Hillingdon’s conduct was dismissed.

The Court of Appeal allowed an appeal and held that Hillingdon had acted unlawfully. It found that Hillingdon had failed to satisfy itself about the age of the young man or carry out a welfare assessment under section 20. It had wrongly treated his wish to go to Liverpool as determinative of its responsibilities. It remained under an extant duty to conduct an assessment and determine the extent of its duties (if any) under section 20.

High Court

A v Leicester City Council & Hillingdon LBC

[2009] EWHC 2351 (Admin), 30 July 2009

Both authorities owed applicant a duty under Children Act 1989

A was a Somali national. She arrived in the UK alone and was detained by the immigration authorities before being released and referred to Hillingdon. Hillingdon carried out an assessment of her age and determined that she was a child. It provided her with accommodation and financial assistance. A told Hillingdon that she wanted to live in Leicester to live with a Somali family she knew. A subsequently travelled to Leicester to live with that family. Hillingdon subsequently told A that unless she moved back to London its obligations towards her had ceased. Leicester contended that Hillingdon rather than it owed her a duty under Children Act 1989.

HHJ Farmer, sitting as a Deputy High Court Judge, held that both authorities owed a concurrent duty under Children Act 1989 s17. Unless and until Hillingdon carried out an assessment that she was no longer a child in need its obligations continued. The fact that the child had left Hillingdon of her own free will was irrelevant.

R (AM) v Havering LBC and Tower Hamlets LBC

[2015] EWHC 1004 (Admin), 17 April 2015

Two authorities shared a duty to carry out an assessment and provide assistance under Children Act 1989 s17 to a family that had become intentionally homeless

AM was married with two young children under the age of four. AM and his family moved from Birmingham to Tower Hamlets to stay with his wife’s sister. After a while, they were asked to leave that accommodation and the family applied to Tower Hamlets LBC for accommodation under Housing Act 1996 Part 7. They were provided with interim accommodation (under section 188(1)) within Tower Hamlets. Tower Hamlets subsequently found, however, that the family had become homeless intentionally from accommodation they had left in Birmingham. As a result of this decision, the housing department referred the facts of their case to the social services department of Tower Hamlets. The family reapplied to Tower Hamlets for assistance under Part 7 after they were evicted from the interim accommodation. On this occasion, they were provided with accommodation in Havering LBC. Again, however, the family were found to have become homeless intentionally and a second referral was made to Tower Hamlets’ social services department. On this occasion, the social services department began an assessment of the children’s needs under Children Act 1989. However, before the assessment had been concluded Tower Hamlets social services advised AM and his family to approach Havering LBC’s social services. Havering, however, denied that they had any obligations to the family and declined to carry out an assessment. Meanwhile, the housing department indicated that they would begin steps to evict the family from their interim accommodation in Havering. AM and his family were then evicted and became street homeless. A couple of days later Havering agreed to carry out an assessment and, despite the fact that the family were street homeless, found that the children were not children in need for the purposes of Children Act 1989. AM and his family issued a claim for judicial review and obtained interim relief requiring Havering to provide the family with accommodation pending the outcome of the claim.

The claim for judicial review succeeded. AM and his family were physically present in Havering. It followed that Havering were under an obligation to carry out an assessment under Children Act 1989. Moreover, any contention that the children were not children in need was unsustainable. However, Tower Hamlets also owed the same duty. While the family were no longer present in their area, as they had started an assessment there was a public law duty requiring them to complete that assessment. This did not mean that Havering escaped its duty. Both authorities should have co-operated in the provision of support to AM and his family under section 17. Neighbouring London or other metropolitan councils should take steps to devise plans and contingencies for such situations and share the cost of funding pending the resolution of such disputes as they arise.

R (M) v Barking and Dagenham LBC and Westminster CC

[2002] EWHC 2663 (Admin); (2003) 6 CCLR 87, 27 November 2002

Children within council’s area if physically present in area

The claimant applied to Westminster for accommodation for herself and her children under Housing Act 1996 Part 7 (homelessness). Westminster provided interim accommodation in Barking and Dagenham’s area. It later decided that the claimant had become intentionally homeless and withdrew the temporary accommodation. The claimant’s children then faced the prospect of actual homelessness and the question arose as to which council was obliged to conduct a ‘child in need assessment’ under Children Act 1989 s17.

Crane J held, in proceedings for judicial review, that the key determinant was actual physical presence and on that basis the duty fell on Barking and Dagenham. However, authorities should not seek to pass on responsibilities for families with children to other authorities and the proper approach should be one of co-operation between the councils involved.

R (S) v Wandsworth LBC

[2001] EWHC 709 (Admin); [2002] 1 FLR 469; (2001) 4 CCLR 466; [2002] Fam Law 180; (2001) Times, November 15, 17 September 2001

A child must be physically present within an authority’s area; an authority who places an applicant in another area in the discharge of its functions under Housing Act 1996 is not responsible

The claimant approached Hammersmith and Fulham for assistance under Housing Act 1996 Part 7. They provided her with hostel accommodation in Lambeth while they determined the cause of her homelessness. The children went to school in Wandsworth. Hammersmith and Fulham found the claimant to be intentionally homeless. She approached Wandsworth’s social services and requested that they provide her and her family with accommodation. At a judicial review the question was which authority, if not all, was obliged to carry out an assessment of her children’s needs under Children Act 1989 s17.

Jack Beatson QC held that S’s children were both ‘within’ Lambeth and Wandsworth’s area as S’s children were physically present in both, ie by residence and by schooling. Hammersmith and Fulham would have also been under the same obligation had they placed S into another authority’s area in pursuance of a social services function. That was not the case here as they had placed S in Lambeth in pursuance of its functions as a housing authority.

Eligibility

In England, Nationality, Immigration and Asylum Act 2002 Sch 3 para 1(1), as amended by Immigration Act 2016, precludes the following classes of adults from being eligible for accommodation under Children Act 1989 s17 and 23C, Localism Act 2011 s1:

a)Persons, or their dependents, with refugee status that was obtained from an EEA member state (Sch 3 para 4).

b)EEA nationals (Sch 3 para 5).

c)Persons, and their dependants, who require leave to remain and do not have it (Sch 3 para 7B).

d)Zambrano carers (ie primary carers of British nationals who would otherwise lack leave to remain) (Sch 3 para 7C (Zambrano v Office National de l’Emploi)).

It follows therefore that while an authority may accommodate a child who is in the UK unlawfully they may not accommodate their parents. The sole exception, and only for those classes set out in paragraphs a) and b) above, is where the failure to do so would lead to a breach of their human rights or EU treaty rights: Sch 3 para 3. Those adults who fall within the classes set out at paragraphs c) and d) above may not be provided with support under Children Act 1989 s17 or Localism Act 2011 s1 if accommodation and support is being, or will be, provided pursuant to regulations made under Nationality, Immigration and Asylum Act 2002 Sch 3 para 10A. Nor may authorities provide accommodation to asylum-seekers and their families while their application for asylum is determined or to failed-asylum seekers and their families who face a genuine obstacle to leaving the UK: Immigration and Asylum Act 1999 s122(5).

Former relevant children are also precluded from obtaining accommodation under Children Act 1989 s23C: Nationality, Immigration and Asylum Act 2002 Sch 3 para 1A. They must instead be provided with accommodation pursuant to regulations made under Nationality, Immigration and Asylum Act 2002 Sch 3 para 10B.

In Wales, and what used to be the position in England, Nationality, Immigration and Asylum Act 2002 Sch 3 para1(1) precludes the following classes of adults from being eligible for accommodation under Social Services and Well-being (Wales) Act 2014 s37 and Local Government Act 2000 s2:

a)Persons, or their dependants, with refugee status that was obtained from an EEA member state (Sch 3 para 4).

b)EEA nationals (Sch 3 para 5).

c)Failed asylum seekers (without children) who are not complying with removal directions issued in respect of him (Sch 3 para 6).

d)Persons, other than asylum seekers, who are present in the UK unlawfully (Sch 3 para 7).

e)Failed asylum seekers living with children under the age of 18 who have been provided with a certificate by the Secretary of State that he is of the opinion that the failed asylum seeker has failed to leave the UK voluntarily (Sch 3 para 7A).

All of the above become eligible if the provision of accommodation under Social Services and Well-being (Wales) Act 2014 s37 is needed to prevent the breach of a person’s rights under Human Rights Act 1998 or their European Community treaty rights: Sch 3 para 3. Unlike in England, there is no equivalent support under paragraph 10A or paragraph 10B. Asylum seekers, including failed asylum seekers, with dependent children at the date of their application for asylum are also excluded from assistance under Social Services and Well-being (Wales) Act 2014 s37 and Local Government Act 2000 s2: Immigration and Asylum Act 1999 s122(5).

Court of Appeal

R (A) v National Asylum Support Service and Waltham Forest LBC

[2003] EWCA Civ 1473; [2004] 1 WLR 752; [2004] 1 All ER 15; (2003) 6 CCLR 538; [2004] LGR 1; [2004] HLR 24; [2004] 1 FLR 704; (2003) Times 31 October, 23 October 2003

Local authority was only under an obligation to assist the Secretary of State in obtaining adequate accommodation for an asylum seeker who was the mother of a disabled child

A arrived in the UK with her two sons on 31 May 2001 and claimed asylum. A local authority placed them in accommodation in Waltham Forest and assisted A in applying to NASS. The children were severely disabled as a result of a progressively degenerative neurological condition. One son could not easily use the stairs in the accommodation and could not access the bathroom at night. NASS decided to disperse the family out of London. The children were by then in a special education needs school and A requested that they be allowed to stay in London. NASS said that they could remain in London and that more suitable accommodation would be sought, although this might not be found quickly in London. A remained in the accommodation and after the passage of time and the deterioration of the children’s condition she wrote to NASS insisting on alternative suitable accommodation. NASS liaised with Waltham Forest and requested it find suitable accommodation, but none could be found. A did not follow a recommendation that the children’s beds be moved downstairs. A issued judicial review proceedings against NASS and Waltham Forest for an alleged failure to discharge its statutory duties. Keith J dismissed her application. She appealed.

The Court of Appeal dismissed her appeal.

•As neither National Assistance Act 1948 s21 nor Children Act 1989 s17 applied Immigration and Asylum Act 1999 s95 was the sole statutory provision that governed the provision of accommodation to a disabled child who was the dependent of an asylum-seeker. The duty to provide accommodation therefore lay with the Secretary of State. The extent of the local authority’s duty was to assist the Secretary of State in finding accommodation (s100). In this case the local authority had not breached that duty.

R (Clue) v Birmingham CC

[2010] EWCA Civ 460; [2011] 1 WLR 99; (2010) 13 CCLR 276; [2010] LGR 485, 29 April 2010

Wrong to refuse assistance under Children Act 1989 s17 on basis applicant and family could return to Jamaica when there was an impediment to her return

The claimant was a Jamaican national. In 2000, she entered the UK with her daughter and they were both granted leave to remain for six months. Prior to the expiry of her visa the claimant applied for leave to remain as a student. Although this application was refused, the claimant remained in the UK and started a relationship with a British national and had three further children. In 2007, the relationship ceased and the claimant, and her children, went to live with her aunt. In the meantime the claimant made an application for indefinite leave to remain in the UK on the basis that her return to Jamaica would breach her daughter’s right to respect for her private life under Article 8 ECHR. In March, 2008, the claimant applied to the authority for accommodation. On August 14, 2008, the authority notified the claimant that it would not provide her family with accommodation under Children Act 1989 s17, because she was in the UK unlawfully and the exercise of the duty was not necessary to prevent a breach of her rights under Article 8. This was because the claimant could return to Jamaica with her children where their family life would not be disrupted. If required, the authority would provide assistance to enable them to return to, and resettle, in Jamaica. The decision letter, however, did not take into consideration the fact that the claimant’s application for indefinite leave to remain had not been decided. The claimant issued a claim for judicial review of the decision. On 18 November, 2008, the claim for judicial review was successful. The Administrative Court held that the authority had acted unlawfully by not having regard to the fact that the claimant was likely to be successful in her application for indefinite leave to remain. The authority appealed against this decision.

The appeal was dismissed. It was not permissible for the authority to make a decision that there was no risk of the claimant’s Convention rights being breached on the basis that she could return to Jamaica where she would not be destitute and could live with her family where the application for leave to remain had been based on her daughter’s right to respect for her private life. The case was different to ‘family life’ cases where applicants could be expected to return to pursue their applications from their country of origin. Except in hopeless or abusive cases, an authority was not entitled to decide how they thought the Secretary of State would determine such an application under the immigration rules.

R (Grant) v Lambeth LBC

[2004] EWCA Civ 1711; [2005] 1 WLR 1781; [2005] HLR 27; [2005] LGR 81; (2005) Times 5 January, 16 December 2004

Claimant’s ECHR rights could be met by returning her and children to home country

The claimant, a Jamaican national, came to the UK in 1992 on a visitor’s visa which she overstayed. In 1995 she married a British national. In 1998 her two children from a previous relationship joined her. In 2000 she had a child by her husband. In 2002 they separated. The claimant made various applications to remain in the UK, all of which were unsuccessful. She was unlawfully present in the UK but had not been made subject to removal directions. In 1993 she became homeless and applied to Lambeth for assistance. She was ineligible under Housing Act 1996 Parts 6 and 7 and was not entitled to welfare benefits. As a result of Nationality, Immigration and Asylum Act 2002 Sch 3 she was also ineligible for assistance under, inter alia, Children Act 1989 s17.

Lambeth carried out an assessment of the children’s needs under the Children Act 1989 and concluded that it would be in the best interests of the claimant and her children to return to Jamaica. Lambeth decided that it would provide temporary accommodation to the claimant pending her return to Jamaica, which it proposed to fund using its powers under Local Government Act 2000 s2. Mitting J allowed an application for judicial review and the council appealed. The claimant asserted that Lambeth had no power to meet the travel and associated costs of an over-stayer under Local Government Act 2000 s2 and that it could only avoid a breach of Article 8 ECHR by continuing to accommodate her pending any removal directions.

The Court of Appeal allowed Lambeth’s appeal. It was entitled to make arrangements for the claimant’s return to Jamaica, and was required to support her only until such time as she could return. The effect of Nationality, Immigration and Asylum Act 2002 Sch 3 was that the power conferred by Local Government Act 2000 s2 could be used, to the extent that it was necessary to avoid a breach of ECHR rights, to fund the return of persons unlawfully present in the UK. In the instant case the council’s decision had been that the ECHR rights of the claimant could be met by the funding arrangement it proposed.

Note: In England, Local Government Act 2000 s2 has since been replaced by Localism Act 2011 s1 (general power of competence).

R (Kimani) v Lambeth LBC

[2003] EWCA Civ 1150; [2004] 1 WLR 272; (2003) 6 CCLR 484; [2004] HLR 15; [2003] FLR 1217; (2003) Times 6 August, 31 July 2003

Sch 3 applied where no impediment to claimant returning to home country

Ms Kimani was a Kenyan national who arrived in the UK in March 1998 with her 4-year-old son. She claimed asylum and was granted temporary admission. Her asylum claim and appeal were rejected. In May 2000 she married an Irish national with a right of residence in the UK. She applied for permission to reside in the UK as his spouse. This was refused on the basis that the marriage was a marriage of convenience. She appealed against this decision and that appeal was outstanding. She was initially provided accommodation by Lambeth. When Nationality, Immigration and Asylum Act 2002 Sch 3 came into force, Lambeth refused to continue support contending that she was ineligible. Ms Kimani contended that to deny her assistance would breach her ECHR rights.

The Court of Appeal held that the removal of support did not breach her ECHR rights. There was no impediment to her return to Kenya. She and her husband were already separated and therefore Article 8 did not require that she should remain in the UK pending her appeal. A person who is seeking leave to remain in the UK on the basis of family life could be reasonably expected to return to their country of origin with their children and make their application there; if they remained in the UK they had no right to support from public funds.

R (M) v Islington LBC and Secretary of State for the Home Department (interested party)

[2004] EWCA Civ 235; [2005] 1 WLR 884; [2004] 4 All ER 709; [2004] 2 FLR 867; [2004] LGR 815; (2004) Times 22 April, 2 April 2004

Council’s power under the Withholding Regs to provide accommodation not time limited

The claimant came to the UK from Guyana in 1998 on a visitor’s visa, which she overstayed. In 1999 she married an Antiguan with indefinite leave to remain in the UK and in October 2001 she had a daughter who was a British citizen. In August 2002 her husband left her, although he maintained contact with their daughter. In November 2002 M applied for the grant of exceptional leave to remain in the UK on compassionate grounds relating, in particular, to her daughter’s connections with the UK and her alleged inability to provide for her in Guyana. That application was pending (it was later refused but an appeal pursued). The council assessed the child’s needs under Children Act 1989 s17 and decided that it was not prepared to support M and her child in the UK but would fund the purchase of one-way tickets to Guyana for them under section 17, on the basis that the return to Guyana would best safeguard and promote the child’s welfare. The council agreed to provide accommodation while the travel arrangements were made, under the Withholding and Withdrawal of Support (Travel Assistance and Temporary Accommodation) Regulations 2002 SI No 3078 (the Withholding Regs) reg 3(3). Guidance issued under the Withholding Regs stated that it was preferable for accommodation not to be provided for more than 10 days to persons returning to non-EEA countries. M sought judicial review. Wilson J held that the council was required to do no more than provide short-term temporary accommodation.

The Court of Appeal allowed M’s appeal by a majority. It was open to the council to provide accommodation for longer than 10 days and it could be provided until removal directions were made. There is no requirement to accommodate in such circumstances, although in exercising this power, councils were under an obligation to consider whether the failure to provide accommodation would be a breach of Article 8.

R (O) v Haringey LBC

[2004] EWCA Civ 535; [2004] FLR 476; (2004) 7 CCLR 310; [2004] LGR 672; [2004] HLR 44; (2004) Times 27 May

Where the mother of children was infirm and destitute but children merely destitute, NASS were responsible for the children and the local authority were responsible for the mother

Mrs O, a Ugandan citizen, married a man lawfully in the UK. After eight years she left the matrimonial home, with the couple’s children, because of the husband’s violence. She applied to Haringey and it provided her and the children with accommodation and subsistence. Mrs O applied for exceptional leave to remain in the UK on human rights grounds. That had the legal effect of making her an ‘asylum-seeker’. Haringey decided that as she was HIV positive it owed her a continuing accommodation duty as an ‘infirm destitute’ under the National Assistance Act 1948 s21. However, the council decided it could not be responsible for the children (who continued to live with her) under the 1948 Act or the Children Act 1989. It said they had become the responsibility of the National Asylum Support Service (NASS). In proceedings for judicial review of that decision, Mrs O and NASS claimed that the whole family was the council’s responsibility. Ouseley J dismissed the claim and Mrs O and NASS appealed.

The Court of Appeal held that: (1) Mrs O was a person in need of care and attention and that the council was right to find it owed her a section 21 duty because s21(1A) did not apply; (2) that duty did not extend to accommodating her children, however, because responsibility for the children fell on NASS rather than on the local authority by way of Immigration and Asylum Act 1999 s122(5). They were to be treated as ‘destitute’ even though actually sheltered with their mother; and (3) the appropriate practical solution was for the council to accommodate the whole family with NASS meeting the cost of accommodating the children.

High Court

R (Conde) v Lambeth LBC

[2005] EWHC 62 (Admin); [2005] HLR 29; [2005] 2 FLR 98; (2005) 8 CCLR 486, 13 January 2005

No discrimination to refuse EEA national assistance under Children Act 1989 s17Times 24 October, 23 October 2003

Ms Conde, a Spanish national, came to the United Kingdom with her two children to look for work. Although she initially had accommodation, she became homeless and applied to Lambeth under Part 7. Lambeth refused assistance on the ground that she was not habitually resident in the UK. She then applied for housing assistance under Children Act 1989 s17. That application was refused on the ground that she could house herself and her children in Spain. She claimed that as she was an EEA work-seeker, the refusal to provide her with housing assistance discriminated against her.

Collins J dismissed her application for judicial review. As an EEA national, she was excluded by the Nationality, Immigration and Asylum Act 2002 Sch 3 from the provision of housing assistance under Children Act 1989 s17. As the provision of housing assistance under section 17 is not related to the act of seeking work, a refusal to provide housing assistance does not violate rights under the EU Treaty (Nice) Article 39. Furthermore, UK nationals in a similar position to Ms Conde would not be housed under section 17 so there was no discrimination against her (R (G) v Barnet LBC (R (G) v Barnet LBC; R (W) v Lambeth LBC; R (A) v Lambeth LBC)).

R (F) v Barking and Dagenham LBC

[2015] EWHC 2838 (Admin), 8 October 2015

A court could not consider whether accommodation should be provided to a mother of a child under Children Act 1989 s17 until the Family Court had decided the question of who the child was to reside with

F was in the UK unlawfully. She gave birth to her son, J, when she was 14. A residence order was made in respect of J’s father. F, however, alleged that J’s father had been violent towards her. The Family Court had, to date, refused to grant shared residence of J because F did not have any accommodation. However, the question of whether J was to live with F or his father was to be determined in a month’s time. In the meantime, F sought accommodation from Barking and Dagenham under Children Act 1989 s17. F argued that such accommodation should be provided as a means to safeguarding and promoting J’s welfare and that Article 8 imposed a positive obligation on Barking and Dagenham to provide such accommodation to facilitate J’s family life with his mother. Barking and Dagenham refused to provide accommodation. F brought a claim for judicial review.

Bobbie Cheema-Grubb QC, sitting as a Deputy High Court Judge, refused to determine the claim. It was not appropriate to consider the question of whether the authority was under an obligation to provide accommodation to F until the Family Court had decided who J was to live with. It was therefore necessary for a High Court judge to consider the claim for judicial review with F’s application for a residence order.

R (Giwa) v Lewisham LBC

[2015] EWHC 1934 (Admin), 10 April 2015

Application for leave to remain obviously hopeless where an appeal to the tribunal had failed and where there had been a number of previous failed applications

The claimant, her husband and their three children were all in the UK unlawfully. Their previous applications for leave to remain in the UK had been refused and they had exhausted their appeal rights. They had, however, not been removed from the UK and had made a further application for leave to remain which had been refused again by the First-tier Tribunal. They applied to Lewisham for accommodation under Children Act 1989 s17, but failed to provide all of their bank statements. Lewisham refused their application as it was not satisfied, in the absence of the bank statements, that the household was without resources. Moreover, their prospects of getting leave to remain in the UK were hopeless. In proceedings for a judicial review of that decision, the claimant made an application for an interim injunction.

HHJ Robinson, sitting as a Deputy High Court Judge dismissed the application. She held that mandatory interim relief needed strong prima facie evidence that the council’s decision was unlawful. The argument that it had not conducted a proper initial assessment was very weak. Moreover, the application for limited leave to remain was clearly hopeless; the application for leave to remain on human rights grounds had been rejected by the First-tier Tribunal and a number of previous applications had also been refused.

R (MN) v Hackney LBC

[2013] EWHC 1205 (Admin), 10 May 2013

An authority was entitled, in the absence of an outstanding application for leave to remain, to determine whether there was an impediment to the family’s return to Jamaica; such an assessment required consideration of the impact on the children’s mental health

The claimants’ parents were Jamaican nationals who had been present in the UK unlawfully since their visitors’ visas expired in 2000. In 2010, they made an application for leave to remain in the UK. It was refused. Although it was not appealed, the Secretary of State did not take steps to remove the family from the UK and to return them to Jamaica. In 2012, the family requested that the defendant provide them with housing and financial assistance under Children Act 1989 s17. The defendant declined to do so on the grounds that the children were not ‘children in need’ and therefore the refusal to provide such support did not constitute a breach of either Articles 3 or 8 ECHR. In any event, there was no impediment to the family returning to Jamaica. The claimants sought to judicially review that decision.

The claim for judicial review was dismissed. The defendant had been entitled, when deciding whether the children were ‘in need’, to take account of the fact that the family had successfully supported themselves in this country for over a decade without recourse to public assistance. The defendant was entitled to be skeptical of claims that the family was about to become homeless, and to draw adverse inferences when only scant information was provided as to how the family had supported themselves in the past.

Hackney had, in the event that the children had been in need, been right to conduct an assessment of whether the family’s return to Jamaica would breach either Article 3 or 8. R (Clue) v Birmingham (R (Clue) v Birmingham CC), was merely authority for the proposition that an authority could not conduct its own human rights assessment where a family had an outstanding application for leave to remain. It did not prevent such an assessment where a family could potentially, when removal directions were issued, appeal against that decision on the grounds that the families removal would contravene Article 8. It could not impose a duty on authorities to provide accommodation under section 17 until that possible appeal was determined. The decision in R (KA) v Essex CC [2013] EWHC 43 (Admin), which held to the contrary was not to be followed.

However, Hackney’s decision that there was no impediment to the family’s return to Jamaica was flawed. While it had been right to find that the family’s return would not breach the right to respect for their family life, the assessment had failed to consider and assess the impact of the children’s mental health if they were returned to Jamaica. That evidence could have given rise to a finding that their return would breach the children’s right to respect for private life, which was capable of amounting to an impediment to their return.

Children Act 1989 s17

Supreme Court (formerly House of Lords)

R (G) v Barnet LBC; R (W) v Lambeth LBC; R (A) v Lambeth LBC

[2003] UKHL 57; [2004] 2 AC 208; [2003] 3 WLR 1194; [2004] 1 All ER 97; (2003) 6 CCLR 500; [2003] LGR 569; [2004] HLR 10; (2003) Times 24 October, 23 October 2003

Council has power but not duty under section 17 to accommodate children with their families

G was a Dutch national of Somali origin. She came to the UK with her baby. Her applications for income support and accommodation as a homeless person were refused because she failed the habitual residence test. Accommodation and subsistence were provided by social services pending an assessment under Children Act 1989 s17. The council decided that the child’s needs were best served if she returned to Holland with G. To that end they offered to pay for the costs of her travel home. They warned that if she refused the existing support under section 17 would come to an end and the child would be placed in foster care. G did not accept the grant and her support was terminated. Her application for judicial review was granted but the council’s appeal to the Court of Appeal was allowed ([2001] EWCA Civ 540; [2001] LGR 34).

A and her three children occupied a two-bedroom council flat with no outdoor play area. It had been in a dangerous state of disrepair since 1994. Two of the children were autistic with severe learning difficulties and required constant supervision. In 1998, on A’s application for a transfer, the council granted ‘overriding priority’ for a transfer to a four-bedroom flat with a garden or other play area. By June 2000 no offer had been made and the council was unable to say when an offer might be made but it would be likely to be ‘a long time’. In May 2000 a Children Act assessment by social services found that the children were living in over-crowded, damp, unhygienic and dangerous conditions and that they needed to be rehoused in appropriate accommodation with a garden. The social services and housing departments liaised but neither offered the necessary accommodation. The claimant sought judicial review, contending that the council had failed to comply with Children Act 1989 s17 in that it had not met the children’s assessed needs. Scott Baker J dismissed the application. The Court of Appeal dismissed A’s appeal ([2001] EWCA Civ 1624; [2000] 32 HLR 13.).

W was evicted from her home for non-payment of rent. She had two children, was unemployed and dependent on income support. Lambeth decided that she had become intentionally homeless under Housing Act 1996 Part VII. W needed £2,000 for a deposit and rent in advance to obtain accommodation privately. Social services assessed the children’s needs and accepted that they needed accommodation. However, it decided that there was nothing exceptional in W’s case justifying the provision of housing assistance. Should the need arise, provision would be made to accommodate the children only under Children Act 1989 s20. W sought judicial review of the council’s later decision. The Court of Appeal refused her application ([2002] EWCA Civ 613; [2002] 2 All ER 901; [2002] HLR 41).

The House of Lords, by a majority of 3:2 rejected the claims that Children Act s17 gave rise to an enforceable duty to accommodate the children with their families. Social services departments are not statutorily required to arrange or provide accommodation for families with children who are not entitled to be housed under Housing Act 1996. Section 17(1) is an overarching target duty. It provides the broad aims which local authorities are to bear in mind when performing other duties set out in the Act. Although the services which the authority provide may include the provision of accommodation the provision of residential accommodation to house a child in need so that he or she can live with the family is not the principal or primary purpose of the legislation. Housing is the function of the local housing authority. The expenditure of limited resources on the provision of residential accommodation for housing children with their families would be bound to mean that there was less available for expenditure on other services designed for the performance of the general duty which section 17(1) identified. It would also sit uneasily with the legislation in the Housing Acts.

It followed that there was nothing wrong with a general policy of making accommodation available for children, but not for their parents. Lord Hope, who gave the main majority judgment, stated that ‘the question whether decisions taken under [Children Act 1989 s17] are compatible with the child’s Article 8 Convention rights must, of course, depend on the facts of each case’.

Note: In R (HH) v Westminster City Magistrates’ Court [2012] UKSC 25, [2012] 1 AC 338, Baroness Hale said

[I]n considering Article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the child’s best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents’ case [15].

Accordingly, notwithstanding G v Barnet, any policy or decision that did not place the best interests of the child at its heart is therefore likely to be unlawful and at the very least it is arguable that there would have to be very weighty countervailing factors to support a decision to separate a child from his or her parents.

R (HC) v Secretary of State for Work and Pensions and others

[2017] UKSC 73, 15 November 2017

Exclusion of Zambrano carers from mainstream benefits justified provided they were provided with support under Children Act s17

The claimant was an Algerian national. In 2008, she arrived in the UK with leave to enter but overstayed. In 2010, she married a British national on whom she was financially dependent. They had two children before their relationship ended in domestic violence. The claimant was by then entitled to reside in the UK as a Zambrano carer (see Ruiz Zambrano v Office National de l’Emploi [2012] QB 265). When she sought accommodation from Oldham City Council, it decided that she was not eligible for assistance. The council agreed to provide temporary housing and financial support under Children Act 1989 s17. By reason of the section 17 provision, she had the practical and legal support necessary to protect the children against being obliged to leave the territory of the European Union while under her care.

Her claim was that this was not enough and that her children were entitled to enjoy the same benefits and opportunities of growing up in Britain that other British children have. She challenged the legality of the amendment regulations (The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 SI No 2588, amending the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI No 1294) introduced in November 2012 and designed to limit the rights of Zambrano carers to obtain housing and homelessness assistance. The effect of the amendment had been to add Zambrano carers to list of exclusions from qualifying rights of residence.

The Supreme Court rejected a contention that as a result of the amending regulations, the claimant had been a victim of discrimination contrary to Human Rights Act 1998 Sch 1 Article 14 read with Article 8, or Article 1 of Protocol No 1:

Discrimination on the basis of immigration status is of course a fundamental and accepted part of both EU and national law, but cannot in itself give rise to an issue under Article 14. In so far as Mrs HC’s differential treatment arises from her status as a third country national, she can have no complaint. So far as concerns her Zambrano status, that is a creation of European law, and such differences of treatment as there are, as compared to other categories of resident, do no more than reflect the law by which the status is created. [31]

The amending regulations were not unlawful. Zambrano carers would, by virtue of CA 1989 s17, get such assistance as was necessary to protect their children from being obliged to leave the territory of the EU while under their care. Assistance under that section was a matter for individual local authorities but:

it is clearly desirable that there should be a degree of consistency as between authorities. The legislation allows for the provision of national guidance. Judicial review is available as a backstop, but it is likely to be unsatisfactory for the levels of appropriate support to be left for determination by the individual authorities on a case-by-case basis, subject only to control by the courts by reference to conventional Wednesbury principles. [37]

and

The authority will no doubt take into account that these are British children, born and brought up here, who have the right to remain here all their lives; they cannot therefore be compared with asylum-seeking children or the children of asylum-seeking parents, who may end up with no or only a limited right to remain. They will no doubt also wish to take into account the impact upon the proper development of these children of being denied a level of support equivalent to that of their peers, that is, the other British children around them whose families are dependent on income-related benefits. That level of support is not fixed at a level designed to lift children out of poverty, as officially defined, but at a level much closer to subsistence. [46]

Court of Appeal

R v Ealing LBC ex p C

(2000) 3 CCLR 122, CA

Assessment flawed: no proper reasoning process regarding child’s accommodation needs

C was a 9-year-old boy. From birth he suffered from profound problems. He was partially sighted, suffered from dyspraxia, dyslexia and severe asthma and was incontinent. It was common ground that he was a child in need for the purposes of Children Act 1989. He lived with his mother and an elder brother in a two-bedroomed maisonette, where he had to share a bed with his mother in a bedroom measuring 13 feet by 9 feet. His mother was unable to leave him unattended. She sought assistance from Ealing. Although the social services department carried out assessments of C’s needs, it did not deal with the adequacy or otherwise of his accommodation. Although the family were on the housing department’s transfer list, they were assessed as having no points. In March 1999, on an application for judicial review, the council was ordered to draw up a care plan. That plan stated that C’s needs could be met by the ‘provision of aids and adaptations to the family home’ but that no expenditure on adaptations should be carried out while the family remained on the transfer list. However, no one responsible for making the assessment on behalf of the council went upstairs to see the bedrooms. In a further application for judicial review, Scott-Baker J dismissed an application relating to C’s accommodation.

The Court of Appeal allowed C’s appeal. The decision and the decision-making process were flawed. There was no proper reasoning process. The decision was Wednesbury unreasonable because the right question or questions were not asked and no reasonable steps were taken by the council to enable the question to be answered correctly. Important practical questions, such as how a mother and 9-year-old boy could continue to share a room, let alone a bed, were simply not addressed.

R (J) v Worcestershire CC

[2014] EWCA Civ 1518; [2015] 1 WLR 2825; [2015] 2 All ER 792; [2015] PTSR 127; [2015] 2FLR 1053, 25 November 2014

An authority was required to provide services under section 17 to a child after it had left its area

The claimant was a young disabled child in a family of travelling showmen. The family spent each winter residing in the council’s area. The council accepted he was a child in need entitled to services under Children Act 1989 s17. It provided those services but said that it had no power to continue them once the claimant left its area during the travelling season. As a result, his family would need to secure services in turn from each council through whose area they moved. On a claim for judicial review, Holman J held that the council did have a power to continue the provision of services under section 17 for children who had been in, but were now outside, its area.

The Court of Appeal dismissed the council’s appeal. Nothing in section 17 prohibited the continuance of the provision of services to a child of an itinerant household moving across local government boundaries.

High Court

R (Stewart) v Birmingham CC

[2018] EWHC 61 (Admin), 24 January 2018

Family with outstanding in-country right to appeal against refusal of leave to remain were entitled to apply for permission to rent accommodation under Immigration Act 2014 and were therefore not destitute

Mr and Mrs Stewart were Jamaican nationals. They entered the UK in 2002 on visitors’ visas and overstayed. In 2005, they gave birth to their daughter Deidre. Until 2011, they were both employed and lived in rented accommodation. In 2011, they stopped working and applied for indefinite leave to remain. After a friend ceased to provide the family with accommodation free of charge, Birmingham agreed to provide them with assistance under Children Act 1989 s17. The family made a subsequent application for leave to remain after their first application for indefinite leave was refused. This was also refused in 2016 and the family appealed against that decision. In September 2016, Birmingham conducted a visit of the family’s home with a view to assessing whether Deidre was still a child in need. The social worker conducting the visit witnessed ‘lots of high value equipment’, ie smart phones, computers, televisions, Sky TV box, bracelet watches and an aquarium). The family confirmed that friends and family in the UK provided them with emotional and practical support, but refused to disclose their names. They also refused to provide bank statements or any of the bills for Sky TV or smart phones. Birmingham subsequently decided that Deidre was no longer a child in need. Mr Stewart sought judicial review of that decision on the basis that the re-assessment took no account of the fact that the family would be prohibited from renting accommodation under the Immigration Act 2014. In a subsequent decision, Birmingham considered that the family could live with friends and family, who had previously been supporting them, free of charge and this would not therefore breach the Immigration Act 2014.

Jeremy Baker J dismissed a claim for judicial review. Birmingham had been clearly entitled to find that the family had financial support from friends and family which was incompatible with them being destitute. This was supported by the fact that the family had not been open or honest about their own finances or the extent of their support network. The fact that Birmingham had not initially considered whether the family would be able to rent accommodation lawfully did not vitiate the decision as the social worker had concluded that the family could reside with friends and family free of charge. In any event, the family was entitled to apply to the secretary of state for permission to rent accommodation, which they had not done. Although the secretary of state advised this would be decided on a case by case basis, the secretary of state’s guidance explained that the existence of an outstanding in-country right of appeal against the refusal of their application for leave to remain would normally result in permission being granted.

R (U and U) v Milton Keynes Council

[2017] EWHC 3050 (Admin), 29 November 2017

Decision that children were not in need flawed because there was no evidence that the family would be let housing that did not infringe Immigration Act 2014

The claimants were Nigerian children. They arrived in the UK with their mother but overstayed their leave to enter. The mother had no right to work; the family had no recourse to public funds; and they were not eligible for housing assistance. Because of their immigration status, it would be unlawful for a private landlord to let to them: Immigration Act 2014 ss20–21. The council decided that the claimants were not ‘children in need’ for the purposes of Children Act 1989 because the mother had access to funds from friends and family sufficient to obtain somewhere to live. It declined to reassess and said that she could use her funds to obtain hotel accommodation or others could meet her accommodation costs, thus avoiding the prohibition in sections 20–21. At trial, it also suggested the alternatives that (1) she could rent a mobile home (to which the Immigration Act 2014 provisions do not apply) or (2) seek special exemption from the Home Office to enable her to rent privately.

Upper Tribunal Judge Markus QC, sitting as a High Court Judge, quashed the decision. The only realistic option was hotel accommodation. The other scenarios were hypothetical and, without consideration of what was realistically possible in this particular case, they could not excuse the refusal to reassess the claimants’ needs. Hotel accommodation might itself fall within sections 20–21. The Explanatory Notes to Immigration Act 2014 para 108 state ‘for example, holiday accommodation will not ordinarily be captured, as for most people it will not provide their only or main home, but if somebody chooses to live in a hotel, the arrangements for that person will be captured.’ As a result, it could not be ruled out that occupation of a hotel by this family in this case would amount to occupation contrary to sections 20–21 and so would not be permitted. The council ‘should have assessed whether it was possible, compatibly with the children’s needs, for [the mother] to secure accommodation for the family in the light of the limitations in Immigration Act 2014 s20. Its failure to do so rendered the continuing refusal to reassess unlawful.’ [64]

R v Tower Hamlets LBC ex p Bradford

(1998) 1 CCLR 294; (1997) 29 HLR 756, QBD

Child entitled to proper assessment of housing needs under section 17; needs not addressed by consideration of family circumstances as a whole

The applicant was an 11-year-old boy with special educational needs. One of his parents was severely disabled. They applied for a transfer from their council home where the whole household had been subject to a campaign of harassment, culminating in attempted arson. They were given priority points but the accommodation offered under the allocation scheme did not meet the parents’ requirements (which may have been unreasonably restrictive). The son sought judicial review of the council’s failure to address his housing needs as part of an assessment under Children Act 1989 s17.

Kay J found that: (a) the applicant was entitled to a proper assessment of his needs for the purposes of s17; (b) such an assessment must include his housing needs as, on the facts, housing circumstances might be hampering his development (as defined by s17(11)); and (c) such needs were not addressed by consideration of the family circumstances as a whole – it was necessary to consider the effect on the child of remaining in the present home, even if he continued living there only because of the unreasonable attitude of his parents. Since no assessment along these lines had been conducted, the council would need to undertake one.

R v Hillingdon LBC ex p McDonagh

[1999] LGR 459; (1999) 31 HLR 531; (1998) Times 9 November, QBD

R v Hillingdon LBC ex p McDonagh

Authority seeking possession against trespassers not obliged to carry out Children Act 1989 or homeless person assessments

R (A) v Enfield LBC

[2016] EWHC 567 (Admin), 16 March 2016

A teenager whose parents were unable to prevent her from being radicalised was a child in need even though her parents were willing to provide her with accommodation

C, in 2014, was 16 years old. She lived with her parents. In February 2014, she left home and travelled to the Turkish/Syrian border with an adult man. On her return she was questioned by counter-terrorism police. She told the police that she was unhappy living at home and wanted to live in an environment that was observant to stricter Islamic codes of behaviour. She was referred to a programme for vulnerable people drawn to violent or extremist behaviour. In August 2014, C left the family home for a second time and, in September 2014, left the country. On her return in November 2014 she refused to live with her parents. She made a homeless application to Tower Hamlets. Tower Hamlets conducted a preliminary assessment and concluded that she was a high risk due to issues concerning radicalisation. Tower Hamlets referred C back to Enfield children’s services for them to undertake a more detailed assessment. Enfield, however, did not undertake such an assessment and decided that as C could return to live with her parents she was not homeless and therefore not a child in need for the purposes of Children Act 1989 ss17 or 20. After a pre-action protocol letter had been sent by C’s solicitors, Enfield undertook an assessment but concluded that she was not a child in need because she was not a child ‘at risk’ and was not homeless. In the subsequent period, C entered into an Islamic marriage with a man in his 30s who was believed to have radical Islamic beliefs, spent nights at his flat or with friends and then, in November 2014, C once again tried to leave the country with a substantial sum of money. She was, however, prevented from doing so by the police. Upon her release C’s solicitors issued a claim for judicial review of Enfield’s decision that she was not a child in need.

Hayden J allowed a claim for judicial review. Enfield’s decision that C was not a child in need was irrational because:

[35]… It is strikingly clear that the Defendants did not truly analyse C’s case at all within the framework of [s.17]. Indeed it would seem to me that the risks arising to C by virtue of her views and belief structure and the concerns that she was within a spectrum of radicalisation, undoubtedly placed her securely within the contemplated reach of s17. To this must also be added: preparation for a marriage to a much older man, which her parents were apparently unable to prevent; two occasions in which C had travelled extensively and alone in dangerous parts of the world; allegations by C of being locked in her home against her will for considerable periods of time; direct requests to the Local Authority from C’s parents that she be found somewhere ‘safe’ to live; very significant periods when C’s whereabouts were not known at all and allegations made by C to the effect that she had been subjected to disproportionate degrees of force from her father.

…

[37]… It is paradigmatic that many children who are at risk or ‘in need’ live with parents or carers who themselves present the risk or, as here, are unable to protect from it. That such parents continue to offer a home to their children is often, again as here, understandable but frequently irrelevant. The Defendants have created a false logic: (i) the parents offer a home; (ii) the child is not homeless and therefore; (iii) the child is not ‘in need’ (per s.17). The flaw in this reasoning, which I am satisfied was the false equation constructed by the Defendants, is manifestly irrational.

Although, by the date of the claim C had turned 18, the outcome was not academic as Enfield retained a discretion to treat C as a former relevant child even though, by reason of Enfield’s unlawful refusal to provide C with accommodation, C had not been looked after for the requisite period. It was therefore also appropriate to make a mandatory order requiring Enfield to consider whether it should treat C as former relevant child.

R (BC) v Birmingham CC

[2016] EWHC 3156 (Admin), 2 December 2016

Authority’s decision that family not destitute was unlawful as the authority had rejected the evidence of the applicant without making sufficient inquiries

BC was a Jamaican national who was in the UK unlawfully. She lived with her six-year old son (NM). She moved to Birmingham, from Bromley, to live with her cousin after her relationship with her partner had broken down. Three months later, BC applied to Birmingham for accommodation under Children Act 1989 s17 after her son had joined her and her cousin had asked her to leave. BC’s cousin provided evidence that she was no longer willing to provide accommodation to BC. Birmingham declined to provide accommodation on the basis that accommodation remained available to BC in Bromley or, if it was not, she should apply to Bromley for accommodation.

BC’s claim for judicial review was allowed. Both BC and NM were present in Birmingham; the obligation therefore fell on Birmingham to provide accommodation. The authority’s decision that BC had accommodation available to her either in Birmingham or Bromley was contrary to the evidence before it. While Birmingham were not obliged to accept that evidence, if it was to reject the evidence it was first required to make enquiries and, in light of those enquiries, assess whether the evidence was correct.

See also R (OK) v Dagenham LBC, 24 March 2017, High Court, authority had not been entitled to find that a Nigerian family, who had outstanding applications for leave to remain, were not destitute where authority had not properly investigated or considered the evidence of the family or third parties.

R (Bangura) v Southwark LBC

[2007] EWHC 1681 (Admin), 20 June 2007

It is for child rather than parent to challenge Children Act 1989 s17 assessment

See Housing Law Casebook 4th edition, U6.4.

R (Jalal) v Greenwich LBC

[2016] EWHC 1848 (Admin); [2016] HLR 40, 27 July 2016

An authority’s refusal to accommodate a family under Children Act 1989 s17 was not unreasonable and did not breach Article 8

Mr Jalal applied to Greenwich for assistance under Housing Act 1996 Pt 7. Greenwich provided him, his wife and four children with temporary accommodation, but ultimately decided that he had become intentionally homeless after he had rejected an offer of accommodation made by Wandsworth LBC under Housing Act 1996 Pt 7. Greenwich served Mr Jalal with a notice to quit and informed him that, in pursuance of its duty under Housing Act 1996 s190(2), he could remain in the accommodation for two months to enable him a reasonable opportunity to secure alternative accommodation. Mr Jalal did not obtain alternative accommodation and Greenwich’s children’s services department refused to provide him with accommodation under Children Act 1989 s17 on the basis that Mr Jalal’s children were not in need. Greenwich’s reasons for this decision were that; Mr Jalal had already had a sufficient opportunity to secure alternative accommodation; had sufficient resources to rent alternative accommodation; had made no proper attempts to secure alternative accommodation; and there was no reason for him to settle in Greenwich. Alternatively, in the event that the children were to become homeless Greenwich would accommodate the children, but not Mr Jalal or his wife. Mr Jalal sought to judicially review that decision.

The claim for judicial review was dismissed. Greenwich’s decision that the children were not in need was not irrational; it had been entitled to have regard to the fact that Mr Jalal had the resources to secure alternative accommodation and his failure to do so had resulted from his unreasonable failure to take steps to secure alternative accommodation. Likewise, Children Act 1989 s17 confers authorities with the power to provide accommodation to children and their parents, not a duty to do so. The refusal had been reasonable and it did not constitute a breach of the family’s Article 8 rights in circumstances where, by the date of the hearing, they had been accommodated for 10 months.

R (MN) v Hackney LBC

[2013] EWHC 1205 (Admin), 10 May 2013

R (MN) v Hackney LBC

An authority was entitled to find that children were not in need

R (N) v Greenwich LBC

[2016] EWHC 2559 (Admin), 25 May 2016

Assessment that a child was not in need because his mother could rent accommodation in the private sector was irrational as mother was precluded from doing so by Immigration Act 2014

N was seven years old and a French national. He lived with his mother who was a Gambian national and who did not have leave to remain in the UK. N and his mother were made homeless after being evicted from accommodation rented in the private sector. Greenwich refused to provide N and her mother with accommodation on the basis that N’s mother had sufficient funds to be able to continue to provide N with accommodation by renting it in the private sector or could be supported by unnamed friends and family. N sought judicial review of that decision and interim relief.

At a return date the High Court continued an application for interim relief. The authority’s decision that N would be able to rent accommodation in the private sector was irrational; Immigration Act 2014 s21 disqualified N from renting accommodation let under a residential tenancy. Likewise, the decision that N could be provided with accommodation by friends and family was deficient because the assessment failed to identify the names of anyone who could provide such support.

R (N and N) v Newham LBC

[2013] EWHC 2475 (Admin); [2014] 1 FCR 1; [2013] BLGR 898, 9 August 2013

It was not unlawful for an authority to base its assessment that the children were not in need on the fact that sufficient support had been provided historically where the children’s parents had refused to co-operate with the authority’s assessment

The claimants were children. Their parents were in the UK unlawfully and were homeless. The children applied to the council for accommodation with their parents under s17. The authority refused to provide accommodation on the basis that the children were not in need and the refusal to provide accommodation would not breach their rights under Article 8.

Swift J dismissed the judicial review claim. The council had not materially erred in declining assistance under either its initial or subsequent assessments of the claimants. It had been entitled to find that the children were not ‘in need’ because in the past the family had been provided with alternative means of support by family and friends and the claimants’ parents had refused to provide the names and details of these people to enable the authority to investigate if this was still the case.

R (O) v Lambeth LBC

[2016] EWHC 937 (Admin)

Authority entitled to find that applicant was not a child in need where mother had failed to provide evidence of her means and how she had previously supported herself

O’s mother was a Nigerian national. She arrived in the UK in 2007 and overstayed. In 2010, she gave birth to O. She subsequently lived with friends who provided her with financial assistance. All O’s mother’s applications for leave to remain had been refused. In 2015, O’s mother applied to the authority for assistance under Children Act 1989 s17. The authority decided that she was not destitute as she was still being accommodated by friends and had in the past been provided with financial assistance (as had been evident from her earlier bank statements). The authority decided that such assistance was now being hidden and not being paid into O’s mother’s bank account.

The High Court dismissed the claim. The authority’s decision that the child was not destitute, so as not to give rise to a potential breach of Article 8, was not irrational as there was evidence of financial assistance in the past and the applicant’s mother had not answered the authority’s reasonable enquiries as to her finances. It was incumbent upon applicants to provide authorities with as much information as possible to assist them with their decision and an authority was entitled to draw adverse inferences where such information was not provided. In any event there was no impediment to the family’s return to Nigeria as the applicant’s mother had no outstanding applications for leave to remain. Accordingly, there would be no breach of Article 8 were the mother to return to Nigeria with O.

See also: R (AC) v Lambeth LBC [2017] EWHC 1796 (Admin) – authority were entitled to treat mother’s account with scepticism where information sought as to her finances was not forthcoming; it was not obliged to present its provisional conclusions on her credibility; assessment was flawed, however, because no consideration had been given to the fact that the child was autistic.

See also: R (CO) v Lewisham LBC, High Court, 16 June 2017 – authority’s decision was irrational where it had failed to reconsider the applicant’s circumstances after she lost accommodation, her family had provided evidence that they had ceased to support her and she used all of the little money she did have to pay for a hotel so that she could otherwise not afford to support her children.

R (PK) v Harrow LBC

[2014] EWHC 584 (Admin), 30 January 2014

Authority’s decision not to accommodate children with their mother was unlawful as it had failed to carry out an Article 8 assessment

A mother and her children had been evicted from their home. They were destitute and street homeless. The council accepted that it was obliged under Children Act 1989 s20 to accommodate the children. It decided that it was not obliged to secure housing for their mother, who was their sole carer, under section 17. The children sought judicial review, claiming that the council’s assessment meant that they would be separated from their mother in breach of the right to respect for family life protected by Article 8. The local authority accepted that its obligations under s17 did engage Article 8, but contended that its assessment did not amount to a decision.

Eder J held that the council had failed properly to take into account the children’s Article 8 rights. No human rights assessment had been carried out. The decision was unlawful and was quashed.

R (S) v Plymouth CC

[2009] EWHC 1499 (Admin), 3 June 2009

Assessment of the claimant’s needs did not provide a realistic plan regarding alternative accommodation

The claimant was a boy aged 11. He lived with his younger brother and his mother in her two-bedroom council flat. Due to his disabilities, in particular autism, he needed his own bedroom. The council accepted that he was a child in need for the purposes of Children Act 1989 s17 and produced an assessment and action plan which recognised, among other matters, his need for other accommodation. His mother had applied for a transfer but the council operated a choice-based lettings scheme under which she had to bid for advertised properties. Nothing suitable had been advertised. The council recognised that three-bedroom accommodation could be obtained in the private rented sector, offered to help with a deposit and rent in advance, but refused to agree to meet any shortfall between the rent payable and the housing benefit the mother might receive. That was because it considered that the mother could secure rehousing by the council if she bid for a wider range of types of property in different areas of its district.

Holman J granted a declaration that the assessment of the claimant’s needs did not provide a realistic plan of action with regard to accommodation. He said of that aspect of the assessment:

…It does seem to me that the local authority have got to be much more proactive in working together with the mother to see exactly what might be available in the private sector, what it would cost, the extent of housing benefit that the mother can obtain towards that cost and the extent, if any, to which Plymouth City Council ought to, and is willing to, bridge any difference. … It is only when Plymouth City Council, working no doubt in co-operation with the mother, have come up with a fully costed and detailed alternative for renting in the private sector that they can be said to have actually produced a realistic plan of action in relation to accommodation (paras 34–35).

R (S and J) v Haringey LBC

[2016] EWHC 2692 (Admin); (2016) 19 CCLR 527, 28 October 2016

Assessment that child was not in need quashed because adverse inferences, drawn by a solicitor in a response to a pre-action protocol letter, had not been put to applicant

JB was a Ghanian national. She had two children: S (a British national) and J (a Ghanian national). Both JB and J had leave to remain in the United Kingdom, albeit on the basis that JB’s leave to remain was subject to a condition that she was not to have recourse to public funds. She was therefore not eligible for welfare benefits. JB’s income, from employment and contributions from the children’s fathers was, £663.20 per month. In 2015, the family was evicted from private sector accommodation and were forced to stay with a variety of friends. In December 2015, the family were forced to sleep on a friend’s kitchen floor and sought accommodation from Haringey under Children Act 1989 s17 on the basis that the children were in need of accommodation. Haringey rejected the application in April 2016 and found that the children were not in need as JB was able to provide accommodation for herself and her children. In June 2016, a lawyer instructed by the authority, in a response to a Pre-Action Protocol letter, also argued that the children were not in need because JB’s general testimony as to her family’s circumstances could not be relied upon because JB had failed to provide the authority with details of how she had previously supported her family financially and afforded to rent accommodation. JB – through her children – sought to judicially review that decision.

The claim for judicial review was allowed in part. Whether or not a child is in need, and what services or provision that need calls for, is a matter of judgment for the local authority. The court should focus on the question of whether the information gathered by the local authority is adequate for the purpose of performing its statutory duty, and in particular whether due regard has been had to ‘… the dimensions of a child’s best interests for the purposes of [Children Act 1989 s17] and in the context of the duty in [Children Act 2004 s11] to have regard to the need to safeguard and promote the welfare of children.’ (R (C) v Southwark LBC [2016] EWCA Civ 707; [2016] HLR 36). The decision, by the authority’s social worker, that JB was able to provide accommodation, by staying with friends and family until she secured private sector accommodation, was not irrational. That assessment also meant that there could be no breach of Article 3 or Article 8 as the family were being provided with accommodation.

However, the claim was allowed because the authority had, subsequent to the initial April assessment, drawn adverse inferences from JB’s failure to supply information without putting those concerns to her. It was especially important to put those concerns to JB, because the information concerning how she had previously supported herself had never been requested of her before the authority had reached its decision in its pre-action protocol response.

R (VC) v Newcastle CC

[2011] EWHC 2673 (Admin), [2012] 2 All ER 227; [2012] PTSR 546; [2012] 1 FLR 944; [2012] 1 FCR 206; (2012) 15 CCLR 194; [2012] Fam Law 280, 24 October 2011

Local authority cannot conclude that a child is no longer in need simply because there is a possibility that support may be available from the secretary of state under Immigration and Asylum Act 1999

VC was a failed asylum-seeker. She married and had two children, but left her husband after allegations of domestic violence. Newcastle decided that her children were ‘in need’ and provided her and her children with accommodation under Children Act 1989 s17. In February 2010, Newcastle informed her that she should apply to the Secretary of State for support under the Immigration and Asylum Act 1999 and, that if she did not do this, they would cease to provide support under section 17. VC and her children sought judicial review.

The Administrative Court allowed their claim. There was no evidential basis upon which Newcastle could properly conclude that the children were no longer ‘in need’. In particular, any support which might be provided by the Secretary of State was unlikely to meet the needs of the children. In any event, it was not open to Newcastle to conclude that a child was no longer in need simply because there was a possibility that support may be available from the Secretary of State when there was no legal basis for compelling the Secretary of State to provide such support.

Children Act 1989 s20

Supreme Court (formerly House of Lords)

R (G) v Southwark LBC

[2009] UKHL 26; (2009) 12 CCLR 437; [2009] LGR 673; (2009) Times 4 June, 20 May 2009

Child satisfying the conditions of s20 is owed a duty by social services and not to be referred to homeless section

The claimant was 17. He was excluded from his mother’s home. After several weeks of sofa-surfing and sleeping in cars, he applied to the children’s services department of the council for assistance. After assessment, it decided that he was a child in need (Children Act 1989 s17) and that he needed help in obtaining accommodation. It directed him to the council’s homeless persons unit for assistance on the basis that he would be accommodated because he had a priority need: Homelessness (Priority Need for Accommodation) (England) Order 2002 SI No 2051 Article 3. A claim for judicial review was dismissed and the Court of Appeal, by a majority, dismissed an appeal from that decision.

The House of Lords held that because he satisfied all of the conditions in Children Act 1989 s20(1)(c), he had been owed an accommodation duty under that section. The children’s services department could not release itself from the obligations of that duty by a referral to a housing department. Lord Neuberger said:

The purpose of the 2002 Order was, as I see it, to fill [a] lacuna, not to enable a children’s authority to divert its duty under section 20 to the housing authority, thereby emasculating the assistance to be afforded to children of 16 or 17 who ‘require accommodation’ (para 40).

The advantage to the claimant of establishing a s20 duty was that he would benefit from the ‘leaving care’ provisions of the Children Act 1989, as amended.

R (M) v Hammersmith and Fulham LBC

[2008] UKHL 14; [2008] 1 WLR 535; [2008] 4 All ER 271; [2008] LGR 159; (2008) Times 3 March, 27 February 2008

An authority had not unlawfully accommodated 17-year-old homeless applicant under s188(1); applicant should have been referred to social services; she was, however, not to be treated as having been accommodated under Children Act 1989 s20 where no social services assessment had been carried out

M was a young woman with an unsettled childhood. By 15 she was excluded from school for a year. At 16 she was arrested for robbery and threats to kill. In April 2006 M’s mother felt unable to cope with her behaviour and excluded her from the family home. She had nowhere else to live and approached the council for assistance. An application was taken under Housing Act 1996 Part 7 and she was placed in interim accommodation under s188 while the council made enquiries into her application. Her case was not referred to social services. M failed to co-operate with the enquiries and some months later was detained in custody by a criminal court. She was not due for release until after she was 18. By this time she was pregnant. Before her release she sought judicial review of the council’s prior decision to take an application from her under Part 7, contending that, as a social services authority, the council should have recognised that she was a child in need to whom it owed a duty to accommodate under Children Act 1989 s20 and therefore that she should now be regarded as a ‘former relevant child’ and be provided with accommodation under Children Act 1989 s23C. The Court of Appeal dismissed her appeal.

The House of Lords dismissed her further appeal. The authority had been under an obligation to provide her with accommodation under s188(1) because as a 17 year old it had reason to believe that she might have a priority need. The housing department should, however, have referred her to the social services department; they had sufficient information to suggest that she might be a child in need. Nor could the authority decide that she had a priority need until it was satisfied that she was not a child in need under Children Act 1989 s20 (as children in need do not have a priority need). None the less, it could not be said that she was now a former relevant child; she had never been looked after under section 20. This was not a case where a social services authority had side-stepped its duty under section 20 by seeking to claim it had accommodated a child under section 17. She had never been brought to the attention of social services and had been housed by the housing department.

Court of Appeal

R (GE) (Eritrea)) v Bedford BC

[2014] EWCA Civ 1490; [2015] 1 WLR, 20 November 2014

Young persons cannot be former relevant children if they were not provided with accommodation by social services; the authority, however, had a discretion to treat such persons as if they were a former relevant child

GE had entered the UK from Eritrea. On applying for asylum she claimed to be 16 and a half. The UK Border Agency disputed her age and said she was over 18 and subsequently took steps to remove her. After instructing solicitors she obtained interim relief preventing that from happening. In the course of those proceedings her solicitors also wrote to Bedford BC asking that they assess her age. Bedford decided that she was over 18 and refused to provide her with accommodation. Subsequently the High Court ordered that the UKBA provide her with accommodation. Bedford were then added to the proceedings and GE sought to judicially review their decision that she was not a child in need within the meaning of section 20. GE, on her own case, subsequently turned 18 before she had had the opportunity to challenge Bedford’s finding as to her age. She amended her challenge to one that she was a former relevant child and was thus still owed duties by Bedford. Her judicial review failed after the Administrative Court found that she had never in fact been provided with accommodation by the authority and therefore refused to carry out an assessment of her age on the basis that it was now irrelevant. GE appealed.

The Court of Appeal allowed the appeal in part. The judge below had been right to find that she could not be a former relevant child because she had not been provided with accommodation by the authority. It was irrelevant that the authority should have provided such accommodation. Previous High Court authorities which had decided otherwise were wrong. However, a social services authority ‘may use its discretionary powers to make good any unlawfulness that it has committed in the past and may, in some circumstances, be obliged to do so’. Christopher Clarke LJ held

[55]… There is no general rule that, wherever it has acted unlawfully, a local authority must undo its past errors to the fullest extent that it can. Much will depend on the circumstances, including whether or not the claimant had sought interim relief and been refused (as here), whether he was guilty of unacceptable delay, and whether and to what extent the authority or the claimant should be regarded as blameworthy. There may be countervailing considerations of public interest which would entitle it to refuse any relief at all. It may be relevant to consider what other remedies are open to the claimant. The matter would be one for the discretion of the local authority, to be determined in the light of whatever application is made and in the circumstances applying when it is invoked.

In this case it meant that it was necessary for GE’s age to be determined, because while – even if she won – she could not be a former relevant child she would be entitled to request that the authority exercise its discretion to treat her as if she was a former relevant child.

R (RO) v East Riding of Yorkshire Council

[2011] EWCA Civ 196; (2011) 14 CCLR 256, 2 March 2011

Child placed in residential school remained ‘looked after’

The claimant was a boy aged 13 with severe autism. The council was both the local education authority and the children’s services authority for his area. The council decided that his needs would best be met by the provision of a full-time placement at a specialist residential school. It took the view that from the date of his placement he ceased to be a looked after child for the purposes of the care and accommodation duties imposed by the Children Act 1989. Cranston J upheld that decision on the basis that the accommodation at the residential school was provided under duties under the Education Act 1996 rather than the Children Act 1989.

The Court of Appeal allowed the appeal. It was impossible to construe the placement of the claimant in residential accommodation, under a special educational needs statement, as being wholly or mainly to meet his special educational needs. It was plain that the claimant continued to require full-time accommodation so as to give him the care, which owing to his parent’s inability to cope with or control him, he needed. As section 22(3A) required the authority to promote a looked after child’s educational achievement, it would be irrational if the provision of a special educational needs placement, which included residential accommodation, ended a child’s looked after status. It followed that the authority had acted irrationally by considering that the special educational needs placement under the Housing Act 1996 supplanted and ended the claimant’s looked after status under Children Act 1989.

R (S) v Sutton LBC

[2007] EWCA Civ 790; (2007) 10 CCLR 615, 26 July 2007

Social services owed claimant a duty under section 20 on her release from prison

For the period August 2005 to end of January 2006 S, a young girl, was on bail in relation to an assault on her mother and a robbery. She could no longer stay with her mother and initially resided with her father but that placement failed after only two days. She went to live with W, a family friend. She was then sentenced and detained until 24 November 2006 when she was released, subject to an electronic curfew and supervision. She was 17. She had no accommodation and had applied to social services for assistance while in prison. It had assessed her but initially decided that she did not meet the conditions for the provision of accommodation under Children Act 1989 s20. On release she was taken to a hostel (Wayside) run by a charity for young homeless women. When evicted from that, she was provided with other hostel accommodation by a district council under the homelessness provisions of Housing Act 1996 Part 7. In judicial review proceedings S claimed that she was owed duties by the defendant social services under Children Act 1989 s20 and s23B. Stanley Burnton J dismissed the claim ([2007] EWHC 1196 (Admin)).

The Court of Appeal allowed an appeal. The provisions relating to a ‘relevant child’ (s23) and the duty under section 20 were considered. It was held that in the period prior to sentence S had not been ‘looked after’ by the defendant for the requisite period to engage s23B. S had been accommodated by W and did not ‘require’ accommodation under section 20. The defendant had not taken the kind of central role, set out in Southwark LBC v D (R (O) v Haringey LBC), to categorise the period she lived with W as being ‘looked after’ by the defendant. However, the defendant owed the section 20 duty immediately prior to S’s release. She did require accommodation and section 20(1)(c) was satisfied. The defendant had unlawfully sought ‘… to “side step” its duties under section 20(1) by having the appellant declare herself homeless and thus (hopefully) obtain state benefits with which she could “buy” accommodation, in the first instance from a charity.’ [50] The defendant was quite wrong to tell her to apply, on release, for accommodation under the homelessness provisions. It owed her the section 20 duty and ought to have performed it. The accommodation at Wayside would be treated as having been provided pursuant to the section 20 duty.

R (T) v Hertfordshire CC

[2016] EWCA Civ 1108; [2017] HLR 10, 11 November 2016

An authority was not under an obligation to provide financial support to a grandmother where she had voluntarily, and without the involvement of the authority, agreed to look after and provide accommodation to a child who would otherwise be in need

In 2012, R’s mother was arrested. At that time, R was 18 months’ old. R, at the suggestion of his mother, went to stay with his uncle and then his grandmother in Derby. At the time, R’s grandmother indicated that she would look after R for no more than a few weeks. Hertfordshire played no part in making those arrangements, but were aware of them. Several weeks later R’s mother pleaded guilty to the offence that had led to her arrest and R’s grandmother agreed voluntarily, and without the encouragement or facilitation of Hertfordshire, to continue to provide a home for R. Hertfordshire made plans to provide accommodation to R in the event that R’s grandmother ceased to provide him with a home, but this never arose. R’s grandmother accepted, in evidence before the court, that she would continue to provide R with a home and support notwithstanding the fact she was struggling emotionally and financially. She contended, however, that the accommodation she was providing to R was a stop-gap and on an emergency basis and could not be construed as ‘accommodation’ being available for the child. Her claim for judicial review failed and she appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. The duty under Children Act 1989 s20 only arises where it appears to the local authority that a child in need in its area requires accommodation. A decision that a child is not in need of accommodation is only susceptible to challenge on Wednesbury grounds. In circumstances where accommodation is being provided by a family member, an authority will only be deemed to have provided accommodation under Children Act 1989 s20 if it has been deeply involved in the arrangements for the accommodation of the child and the family members had been led to believe that financial support would be provided. No such arrangements had been made in this case. The arrangement for R’s grandmother to look after him had been entirely voluntary. The fact that the provision of accommodation may have been on only on an emergency and stop-gap basis was immaterial if accommodation continued to be provided. The duty under section 20 could only have been triggered had R’s grandmother indicated that from a certain date she would no longer agree to provide R with accommodation.

Note: Cf Southwark LBC v D (Southwark LBC v D).

R (TG) v Lambeth LBC

[2011] EWCA Civ 526; [2011] 4 All ER 453; (2011) 14 CCLR 366; [2011] LGR 889; (2011) Times 6 June, 6 May 2011

Where child assessed as a child in need but referred to the homeless department, accommodation deemed to have been provided under Children Act 1989 s20

The claimant was a young man. Lambeth provided accommodation for him between March and October 2006 when he was aged 16 and 17. The accommodation was provided ostensibly by the council in performance of its duties as a local housing authority to provide interim accommodation for the homeless: Housing Act 1996 s188. In judicial review proceedings, Lambeth conceded that ‘in all probability’ the accommodation should have been provided by it as a children’s services authority under a duty under Children Act 1989 s20 (para 4). The issue in the judicial review claim was whether a court could treat or deem the accommodation as having been provided under section 20 so that the claimant would have the statutory rights enjoyed by a care-leaver. McCombe J dismissed his claim that he was a ‘former relevant child’ within the meaning of Children Act 1989 s23C(1).

The Court of Appeal allowed an appeal. It held that the proceedings had revealed a serious absence of co-ordination within Lambeth between its housing department and its children’s services department, and that the circumstances suggested a need for all local authorities to take urgent steps to remedy any such failures in their own services. A social worker in Lambeth’s Youth Offending Service ‘represented … the eyes and ears of the children and families division of’ Lambeth’s Children and Young People’s Service. She had decided that the claimant was a child in need of accommodation before referring him to the homeless persons service, and in those circumstances, the Children Act 1989 duty was owed as it could not be said that the claimant had not been brought to attention of social services.

Southwark LBC v D

[2007] EWCA Civ 182; (2007) 10 CCLR 280, 7 March 2007

Fostering arrangement was made under Children Act s23; as soon as duty to accommodate under section 20 arose, girl ‘looked after’ despite being accommodated with family friend

S, a 13-year-old girl whose mother lived overseas, told her teacher that her father, with whom she was living, had been violent to her. The council held an urgent case conference later that day and the father agreed to have no further contact with S. A social worker telephoned D, with whom S had previously stayed, and D agreed to take S in. The council then contended that it had facilitated a private fostering arrangement and that it was under no duty to support D financially. It argued that it had never owed S an accommodation duty under Children Act 1989 s20 because S had not required accommodation as D had agreed to take her. D’s claim for judicial review was allowed and the council appealed.

The Court of Appeal dismissed the appeal. The council owed a crystallised duty to accommodate S (under s20(1)(c)) and she became a looked-after child as soon as that duty arose. The council itself was under a duty to provide accommodation for S and the arrangement it made with D was in pursuance of that duty:

… in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child to ‘side-step’ that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case … Where a local authority takes a major role in making arrangements for a child to be fostered, it is more likely to be concluded that, in doing so, it is exercising its powers and duties as a public authority pursuant to sections 20 and 23. [49]

If an authority was facilitating a private foster arrangement it should make clear to the foster carer that he or she would have to look to the parents for financial support. The only inference that could reasonably be drawn in the instant case was that the council had asked D to accommodate S at its expense under section 23(2).

See also:

•R (A) v Coventry CC [2009] EWHC 34 (Admin); 22 January 2009: Where child in need accommodated by friend’s mother he was owed a duty under s20.

•R (SA) v A Local Authority [2011] EWCA Civ 1303; [2012] 1 FLR 628: Child’s accommodation with grandmother was under s20 and grandmother entitled to payment.

High Court

R (A) v Enfield LBC

[2016] EWHC 567 (Admin), 16 March 2016

Enfield were ordered to consider, in the exercise of its discretion, treating her as a former relevant child where she did not meet the statutory criteria (R (A) v Enfield LBC)

R (A) v Haringey LBC

[2016] EWHC 3054 (Admin), 16 September 2016

Authority was not obliged to continue to find accommodation under Children Act 1989 s20 for a child who refused any accommodation that was not offered to him in a particular area

A was 17 years old. In 2014, he had been taken into care by the authority after his parents left Haringey. Haringey placed him in a number of residential homes. In each case, A was required to leave those placements after he committed acts of violence against other residents or refused to inform the staff of his whereabouts amid concerns that he was involved in gangs, was drug dealing and had been charged with possessing a firearm. Haringey sought to arrange another placement in Nottingham on the basis that it was best way of keeping A safe. A, however, refused to move to Nottingham. Haringey subsequently decided that if A was unwilling to move to Nottingham and engage with his social worker there was little more the authority could do for him and treated itself as having ceased to being under an obligation to provide accommodation to A under Children Act 1989 s20. A judicially reviewed that decision and contended that he remained a child in need, as he was street homeless and forced to stay with friends or sleep in bus shelters, and sought accommodation in Haringey.

The claim for judicial review was dismissed. Haringey had performed its duty under Children Act 1989 s20 and had done all that could be reasonably expected of them; it had decided that A was a child in need and that his needs would be met by providing him with the placement in Nottingham notwithstanding A’s reluctance to move there. A could not demand, pursuant to section 20, that he be provided with accommodation in Haringey if it was not in his best interests.

R (Behre and Others) v Hillingdon LBC

[2003] EWHC 2075 (Admin); (2003) 6 CCLR 471; (2003) Times 22 September, 29 August 2003

Unaccompanied asylum-seekers were ‘looked after’ when provided with accommodation by social services

All four claimants arrived at Heathrow Airport in 2000 as unaccompanied asylum-seeking children. None had family in the UK. All were destitute. The immigration authorities referred them to Hillingdon social services department, which was responsible for them under the Children Act 1989. The four claimants received assistance from social services, but this ceased when they became adults. The claimants argued that the council owed them duties under the Children (Leaving Care) Act 2000 on the basis that they had been ‘looked after’ as they had ‘accommodated’ under Children Act 1989 s17 or s20. The council asserted that it had not accommodated them but had ‘supported [them] in housing provision in the community’ and thus they had not been ‘looked after’.

Sullivan J held that the provision by a local authority of housing assistance to an unaccompanied asylum-seeking child amounted to the provision of accommodation. The claimants had been ‘looked after’. Hillingdon’s attempt to differentiate between providing ‘housing’ for children who required somewhere to live as a result of their circumstances and providing ‘accommodation’ was mere sophistry and a distinction without a difference. Furthermore, there was no basis for requiring the prescribed period in Children Act 1989 s19B(2)(b) or Sch 2 Part II para 19B(2)(a) to begin before a child turned 16. All that was required was that the prescribed period ended when the child was 16 or 17. The claimants had been looked after for the requisite period, were now former relevant children and were owed duties under the 2000 Act. They were also in priority need for the purposes of Housing Act 1996 by virtue of Homelessness (Priority Need for Accommodation) (England) Order 2002 SI No 2051 article 4.

See also: R (W) v Essex CC [2003] EWHC 3175, 19 December 2003; R (L) Nottinghamshire CC [2007] EWHC 2364 (Admin), 26 September 2007 (Housing Law Casebook 4th Edition U4.15); H, Barhanu, B v Wandsworth LBC, Hackney LBC, Islington LBC [2007] EWHC 1082 (Admin); (2007) 10 CCLR 439; [2007] 2 FCR 378, 23 April 2007 (Housing Law Casebook 4th Edition U4.7).

R (JG) v Kent CC

[2016] EWHC 1102 (Admin), 13 May 2016

A child who physically assaulted his family on a number of occasions was a child in need for the purposes of Children Act 1989 s20 because his family was no longer able to provide him with suitable accommodation

TG had diagnosis of unsocialised conduct disorder with mixed neurodevelopmental difficulties. As a result he was often violent towards his family and pupils he went to school with. Kent made a statement of special educational needs, which resulted in TG being educated in a special day school. TG’s family requested that, because of his increasing outbursts of violence, he be moved to a different residential school. Kent refused. Eventually, TG was expelled from his day school after he had physically assaulted a pupil. On his return home he physically assaulted his mother and the police were called. Several months later, after another serious assault by TG against his mother, TG’s father decided to take TG out of the family home and TG moved to Sunderland to stay with his grandparents until more suitable accommodation could be obtained. Kent subsequently contended that as TG had moved to Sunderland they no longer owed him a duty. TG applied for judicial review.

The High Court allowed the claim. By the time that TG had moved to Sunderland, after the second serious assault, it was obvious that TG’s parents were no longer able to provide TG with suitable accommodation. No other conclusion could have been rationally reached. It followed that Kent were under an obligation to provide TG with accommodation under Children Act 1989 s20.

Although TG had caused harm to his family, and there was every possibility that while he remained living with his family there was a risk of further harm, his behaviour towards his brothers was not sufficiently serious to be the equivalent of ‘inhumane or degrading treatment or punishment’ so as to engage Article 3. It followed that Kent had not been under a positive obligation to take steps to protect TG’s brothers.

R (KA and NBV) v Croydon

[2017] EWHC 1723 (Admin), 7 July 2017

Council did not need to continue accommodating applicant after finding that Children Act 1989 s20 did not apply

The claimants were provided with accommodation and support by Croydon on the basis that they were unaccompanied asylum-seeking children: Children Act 1989 s20. When the council concluded age assessments finding that they were in fact adults, notice was given of those decisions and accommodation and support were immediately withdrawn. The claimants sought judicial review. They contended that the simultaneous delivery of the written decisions and withdrawal of accommodation impeded their right of access to justice because they would be rendered homeless before they could mount any challenge to the correctness of the decisions.

Laing J dismissed the claim. No statutory provision required the council to continue accommodating after an adverse decision. The right of access to the courts was not impeded because applicants for judicial review of adverse decisions could, in appropriate cases, obtain interim relief.

R (S) v Croydon LBC

[2017] EWHC 265 (Admin), 24 February 2017

Authority was required to accommodate unaccompanied asylum seeking child pending the outcome of his age assessment

S was an Iraqi national. He arrived in the UK as an asylum seeker and claimed he was 15 years old. Croydon agreed to carry out an assessment of his age but refused to provide him with accommodation under Children Act 1989 s20 before that assessment was concluded. S sought to judicially review that decision. Meanwhile, S was accommodated by the UK Border Agency under Immigration and Asylum Act 1999. Croydon asserted that it should not be required to accommodate S because of safeguarding concerns about placing him with children in the event that he turned out to be an adult.

The claim for judicial review was allowed. Statutory guidance provided that unaccompanied asylum seeking or trafficked children are presumed to be children and ought to receive immediate access to assistance and support. Accordingly, Croydon were obliged to follow the statutory guidance, and provide accommodation to S, unless there were cogent reasons for departing from the guidance. In this case there were none. There was no evidence that S could not be accommodated in a way that would not give rise to a risk to other children.

Children Act 1989 s23C

In England, authorities have duties in relation to former relevant children. A ‘former relevant child’ is:

a)a person who has been a ‘relevant child’ (and would be one if under 18) and in relation to whom the authority were the last responsible authority; or

b)a person who was being looked after by the authority when he reached the age of 18 and immediately before ceasing to be looked after was an eligible child): Children Act 1989 s23C(1).

An ‘eligible child’ is a child who:

a)is aged 16 or 17; and

b)has been looked after by a local authority for a period of 13 weeks (in aggregate) which began after he reached 14 and ended after he reached 16: Children Act 1989 Sch 2, para 19B(2), Children (Leaving Care) (England) Regs 2001 SI No 2874 reg 3.

A relevant child is a child who:

a)is not currently being looked after by a local authority, was ‘an eligible child’ before last being ceased to be looked after, and is aged 16 or 17: Children Act 1989 s23A(2); or

b)would have been looked after by a local authority as an eligible child but for the fact that on his or her 16th birthday he/she was detained through the criminal justice system, or in hospital, or if he/she has returned home on family placement and that has broken down: Children Act 1989 s23A(3), Children (Leaving Care) (England) Regs 2001 reg 4.

Until a former relevant child reaches the age of 21 the ‘last responsible authority’ must provide any assistance to the extent that his or her welfare requires it: s23C.

Court of Appeal

R (SO) v Barking and Dagenham LBC

[2010] EWCA Civ 1101; [2011] 1 WLR 1283; [2011] 2 All ER 337; (2010) 13 CCLR 591; [2011] PTSR 549; [2011] HLR 4, 12 October 2010

Authorities were required to provide accommodation to former relevant children where it was necessary for the child’s welfare

The claimant entered the UK as an unaccompanied asylum-seeker. He was accommodated by the council as a child in need under its duties under Children Act 1989 s20 from the time when he first claimed asylum until his alleged 18th birthday on 6 July 2008. In 2009, the council gave notice that it had decided to withdraw its support on the basis that the National Support Service (NASS) would accommodate him. On a judicial review of that decision, Calvert-Smith J held that a local authority derives no power to provide accommodation from Children Act 1989 s23C(4)(c), whether to a former relevant child asylum-seeker or to any other person. He further held that, even if it did, the local authority was entitled to conclude that the former relevant child asylum-seeker would be likely to receive assistance from the NASS, at least until the result of any application for such assistance was known, and thus that his welfare did not require the provision of accommodation by the local authority

The Court of Appeal allowed the claimant’s appeal on both points. Section 23C(4)(c) did empower local authorities to provide accommodation to former relevant children. The draftsman had used language – ‘other assistance’ – which the Court of Appeal had construed on three separate occasions, in a similar context, as encompassing the provision of accommodation. It was highly unlikely that the draftsman would have used identical language if he did not intend other assistance to include the provision of accommodation. Nor could the local authority, when considering whether the appellant’s welfare required that he be accommodated by them under section 23C(4)(c), take into account the possibility that he could have been accommodated by the UK Border Agency under section 4(2) of the Immigration and Asylum Act 1999. The power under section 4(2) was residual and could not be exercised if the failed asylum-seeker was entitled to accommodation under some other provision, such as section 23C(4)(c).

High Court

R (Deeming) v Birmingham CC

[2006] EWHC 3719 (Admin), 2 November 2006

Pathway plan did not have proper contingency plan if claimant lost his accommodation

Mr Deeming had been in local authority care and the council owed him duties under the Children Act 1989 ss23D and 23E in respect of provision of a personal adviser and a pathway plan into adulthood. Children (Leaving Care) (England) Regulations 2001 SI No 2874 reg 8 and Sch 1 para 9 required that the pathway plan contain ‘contingency plans for action to be taken by the responsible authority should the pathway plan for any reason cease to be effective’. Mr Deeming sought judicial review of the adequacy of the pathway plan contending, inter alia, that it contained no proper contingency plan if he lost his current accommodation. It simply provided that a local housing authority could assist under homelessness provisions.

Elias J, allowing the application in part, considered that the reference to the claimant presenting himself to the local housing office for alternative accommodation was not an adequate contingency plan. It simply left the burden on him to cope with the particular problem. What was required was an identification of who within the council would take responsibility for seeking to ensure that steps could be taken in those circumstances to obtain accommodation. The changes need not be very significant but it would require a particular responsibility on somebody within the council who would then know that it was their task to deal with this particular difficulty if and when it arose.

R (Sabri) v Croydon LBC

[2012] EWHC 1236 (Admin), 23 April 2012

The authority had the power to provide financial contributions towards the cost of accommodation in connection with a former relevant child’s education

The claimant was a young man in his early twenties and was a ‘former relevant child’ in respect of whom the council had continuing functions under Children Act 1989 s23C. In judicial review proceedings the court was asked to determine, as a preliminary issue, whether, the authority had the power to provide assistance by way of financial contribution to the cost of accommodation in connection with the receipt of education.

Charles George QC granted the declaration:

the words ‘contributing to expenses incurred by him in living near the place where he is or will be receiving education or training’ in section 24B(2) and 23CA(5) of the Children Act 1989 permit the local authority to make a contribution, including 100 per cent contribution, to accommodation and accommodation-related expenses (para 12).

Age assessments

Supreme Court (formerly House of Lords)

R (A) v Croydon LBC; R (M) v Lambeth LBC

[2009] UKSC 8; [2009] 1 WLR 2557; [2010] 1 All ER 469; (2009) 12 CCLR 552; [2010] LGR 183, 26 November 2009

Age assessment is a question of fact ultimately to be decided by the court at a fact finding hearing rather than reviewing an authority’s decision on conventional judicial review principles

The claimants were young people who had applied to the two councils for accommodation under Children Act 1989 s20. They argued that before considering whether someone was a child in need for the purposes of the Children Act 1989 (an evaluative judgment which was subject only to challenge on Wednesbury grounds), it was first necessary for the court to decide on the balance of probabilities if the applicant was in fact a child. This was a precedent or jurisdictional fact and so was a question for the courts to decide.

The Supreme Court decided that it was a jurisdictional fact. The word child was objectively defined by the Children Act 1989. It was not a question which required a value judgment to answer it. It was plain that before deciding if a person was in need and entitled to support the objective question of whether he or she was a child had to be determined. The fact that it was impractical for the Administrative Court to hear disputes of fact was immaterial.

Court of Appeal

R (FZ) v Croydon LBC

[2011] EWCA Civ 59; (2011) 14 CCLR 289; [2011] LGR 445, 1 February 2011

Guidelines for proper approach to age assessments and principles to be applied in leave applications concerning factual issues

The claimant was an unaccompanied asylum-seeking child. The council accepted that it had a duty to accommodate him under Children Act 1989 s20, but following an age assessment process it decided that he was 17 rather than his claimed age of 15. That decision was upheld on a review. The claimant sought a judicial review but Deputy High Court Judge James Dingemans QC refused permission to bring the claim.

The Court of Appeal allowed an appeal and granted permission to seek judicial review. In deciding whether to grant permission to apply for judicial review, the court was required to consider whether the material before it raised a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. The deputy judge had been wrong to refuse permission on the basis that the authority had carried out a Merton compliant assessment (R (B) v Merton LBC [2003] EWHC 1689 (Admin)). The claimant’s factual case, taken at its highest, could potentially succeed at a fully contested hearing.

It was also a basic principle of fairness that an applicant should, (i), be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his claim that he was a child which may weigh against him and, (ii), be given the opportunity of attending the interview with an appropriate adult. The authority had not done either and so it was also appropriate to grant permission on those grounds.

Nonetheless, the Administrative Court was not well equipped to decide questions of fact and so it was appropriate to transfer the claim to the Upper Tribunal. The Court of Appeal drew attention to Senior Courts Act 1981 s31A and article 11(c)(ii) of the First-tier Tribunal and Upper Tribunal (Chambers) Order 2010 SI No 2655, which, from 29 November 2010, requires the Administrative Court to transfer age assessment cases, which have been started in the Administrative Court, to the Upper Tribunal. It would first be appropriate to decide whether to grant permission before transferring the claim, but no further directions should then be made. The fact that a claimant was said to be vulnerable was immaterial. He or she would receive an entirely appropriate hearing before the Upper Tribunal, which has a sufficient judicial review jurisdiction to hear the claim.

Note: The earlier cases which established principles to be applied in assessing age are all still relevant.

See:

•R (B) v Merton LBC [2003] EWHC 1689 (Admin); [2003] 4 All ER 280; [2003] 2 FLR 888; (2003) 6 CCLR 457; (2003) Times 18 July; 14 July 2003 (see Housing Law Casebook 4th edition, U4.10): Guidance on the assessment of age.

•R (CJ) v Cardiff CC [2011] EWCA Civ 1590, 20 December 2011: there is no burden of proof when assessing a person’s age.

•R (A) v Croydon LBC (No 2) [2009] EWHC 939 (Admin): the use of medical evidence was unreliable. It would be rare – and only when the report indicated that a social worker had ignored a relevant consideration - that a medical assessment ought to change the outcome of a decision.

•R (PM) v Hertfordshire CC [2010] EWHC 2056 (Admin); (2010) Times 18 November; 4 August 2010 (see Housing Law Casebook 5th edition, U4.24: Authority could not merely rely on Immigration Tribunal’s decision on applicant’s age.

Adults

On 1 April 2015, the Care Act 2014 came into force in England. On that date, the Care Act 2014 repealed National Assistance Act 1948 s21 in England: see National Assistance Act 1948 s33. As from 1 April 2016, all those persons who were being provided with accommodation under section 21, prior to its repeal, are now deemed to have been provided with accommodation under the Care Act 2014: Care Act 2014 and Children and Families Act 2014 (Consequential Amendments) Order 2015 SI No 914 art 3.

Under the Care Act 2014, where, after an assessment, a social services authority is satisfied that an adult has needs for care and support, and that such needs meet the eligibility criteria, the local authority must meet that adult’s needs if the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence and the adult’s accrued costs exceed the cap on care costs: Care Act 2014 ss 9, 13 and 18. As under section 21, this duty does not apply to a person to whom Immigration and Asylum Act 1999 s115 applies where their need for care and support arises solely from their destitution: s21(1).

Meeting an adult’s needs may include the provision of accommodation in a care home or in premises of some other type: Care Act 2014 s8(1)(a). However, an authority may not meet a person’s needs by doing anything which it or another local authority is required to do under Housing Act 1996 s23(1).

An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result of the adult’s needs the adult is unable to achieve two or more outcomes prescribed by regulations and as a consequence there is, or is likely to be, a significant impact on the adult’s well-being: Care and Support (Eligibility Criteria) Regulations 2015 SI No 313 reg 2(1), (2).

Social services authorities may also have an obligation to provide accommodation to people who have been detained under Mental Health Act 1983 by way of section 117 of that Act.

On 6 April 2016, Social Services and Well-being (Wales) Act 2014 Part 4 came into force in Wales and National Assistance Act 1948 Part 3 was repealed. It is drafted in similar, although not identical, terms to the Care Act 2014. As in England, an authority is under an obligation to assess an adult’s needs and to meet those needs that are eligible. Meeting an adult’s needs may include the provision of accommodation in a care home or in premises of some other type: ss19, 32, 34 and 35.

The Secretary of State, through the UK Border Agency, has an obligation to provide accommodation to asylum seekers and their families who would otherwise be destitute under Immigration and Asylum Act 1999 and may provide accommodation to failed asylum seekers or people who are otherwise in the UK unlawfully under Immigration and Asylum Act 1999 s4.

Which authority?

A social services authority in England is required to meet a person’s needs for care and support if that person is ordinarily resident in their area: Care Act 2014 s18. Where an adult is being provided with NHS accommodation, after care accommodation under Mental Health Act 1983 s117, living in a care home, shared lives or supported living accommodation under the Care Act 2014, he or she is treated as being ordinarily resident in the area where he or she lived immediately before moving into such accommodation: section 39 and Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014 SI No 2828.

A social services authority in Wales is required to meet a person’s needs for care and support if that person is ordinarily resident in their area or of no settled residence and present within the area: Social Services and Well-being (Wales) Act 2014 s35(1).

A social services authority is under a separate obligation to provide after care services under Mental Health Act 1983 s117 to persons who are either resident in their area at the date of their admission or, where a patient was not resident in any area, where the patient was discharged: s117(3) and R v Mental Health Review Tribunal ex p Hall [1999] 3 All ER 132; (1999) 2 CCLR 361.

Supreme Court (formerly House of Lords)

R (Cornwall Council) v Secretary of State for Health

[2015] UKSC 46; [2016] AC 137; [2015] 3 WLR 213; [2016] 1 All ER 962; [2015] 3 FCR 347; [2015] HLR 32; [2015] BLGR 503; (2015) 18 CCLR 497; (2015) 145 BMLR 1; [2016] MHLR 164, 8 July 2015

A person could not be ordinarily resident, for the purposes of National Assistance Act 1948, in an area in which he had been placed by another authority in pursuance of its earlier obligations under Children Act 1989

A young man (PH) with physical and mental disabilities was originally provided with accommodation by Wiltshire Council under Children Act 1989 s20, albeit they had provided him with accommodation with foster parents in South Gloucestershire. After he turned 18, he went to live in residential care homes in Somerset. An issue arose as to which local authority would be responsible for paying for this accommodation. He had lived in South Gloucestershire with foster parents for the majority of his childhood, but had occasionally visited his parents who lived in Cornwall. The Secretary of State found that he was ordinarily resident in Cornwall. Cornwall Council sought a judicial review of that decision. Beatson J dismissed the claim. The Court of Appeal allowed an appeal and granted a declaration that he was ordinarily resident in South Gloucestershire.

The Supreme Court allowed the appeal. A person could not be resident in area in which he had been placed by another authority in pursuance of an earlier duty under Children Act 1989. Accordingly, even though PH had lived in South Gloucestershire for the majority of his childhood it could not be his place of ordinary residence for the purposes of the National Assistance Act 1948. PH’s ordinary residence was therefore with the authority who had placed him with his foster parents, namely Wiltshire.

See now: Care Act 2014 and Social Services Well-being (Wales) Act 2014.

Court of Appeal

R (Hertfordshire County Council) v Hammersmith and Fulham LBC

[2011] EWCA Civ 77; [2011] PTSR 1623, 15 February 2011

The deeming provision under National Assistance Act 1948 s24(4) did not apply to questions of residence under Mental Health Act 1983 s117

JM suffered from a significant cognitive impairment and Korsakoff’s psychosis. Between 1991 and 2006 he lived in Hammersmith in a one bedroom flat. However, in 2006, after being hospitalised following a car accident, Hammersmith provided him with accommodation within a care home under National Assistance Act 1948 s21. In 2007, after a reassessment of JM’s mental health, Hammersmith moved him to another care home this time situated within Sutton. In April 2008, JM’s mental health deteriorated and he was detained under Mental Health Act 1983 s3 in a hospital in Sutton. By November 2008, JM’s consultant psychiatrist decided that he could be released from detention. Hammersmith informed the psychiatrist that they were no longer liable for JM’s care and that they had discharged him from their caseload. In a separate judicial review, Mitting J declared that Sutton were responsible for providing after-care services to JM. This was not appealed. However, as JM wished for Hammersmith to be responsible for his care, he was given permission to be joined as an interested party in an appeal brought by Hertfordshire County Council against a decision that it, rather than Hammersmith, was responsible for the care of another person, JW, under Mental Health Act 1983 s117. This was despite the fact that the appeal itself was academic, and only being pursued by Hertfordshire as they viewed the point as important, as Hammersmith had agreed to be responsible for JW’s care.

Hertfordshire and JM contended that Mental Health Act 1983 s117 should be read purposively so that the provision of residential accommodation under section 21 should not be taken into account for the purposes of deciding the area in which an applicant had been resident prior to his detention under Mental Health Act 1983 s3. This was because it could not have been Parliament’s intention for the responsibility of a person’s care to switch authorities upon him being detained under Mental Health Act 1983 s3.

The Court of Appeal held that section 117(3) could not be construed in that way. Immediately before his detention JM had been resident in Sutton and it was therefore Sutton who were now responsible for his after-care, not Hammersmith.

R (Kent County Council) v Secretary of State for Health

[2015] EWCA Civ 81; [2015] 1 WLR 1221; [2015] 4 All ER 452; (2015) 18 CCLR 153, 11 February 2015

National Assistance Act 1948 s24, before its amendment on 19 April 2010, provided that a person who had been accommodated in residential accommodation provided by the NHS was ordinarily present in an authority’s area

NA was a disabled adult. He originally lived in Sutton and then Barking and Dagenham where he had been provided with accommodation under National Assistance Act 1948 s21. In 2009, he moved to residential accommodation in Kent. This was funded by the NHS. In 2010, NA’s needs changed and the NHS ceased funding his accommodation. At that point he once again became eligible for support under section 21, albeit he remained in the same accommodation. A dispute arose as to which local authority was liable to pay for his care and accommodation. The Secretary of State determined that Kent County Council were responsible. Kent sought permission to judicially review that decision. This was refused and Kent appealed to the Court of Appeal.

The Court of Appeal dismissed the appeal. It was common ground that had NA been placed in his latest accommodation after 19 April 2010 then Kent would not have been responsible for the cost of his care. This was because section 24, subsequent to its amendment, provided that a person placed in residential accommodation provided by the NHS is deemed to remain ordinarily resident in the area he lived in before being placed in that residential accommodation. However, section 24, as it applied in 2009, did not include NHS residential accommodation. It followed that NA had been ordinarily resident in Kent at the date he became eligible under section 21 for accommodation and therefore Kent were responsible for paying for his care.

See now: Care Act 2014 and Social Services Well-being (Wales) Act 2014.

High Court

R (Greenwich LBC) v Secretary of State

[2006] EWHC 2576 (Admin); (2007) 10 CCLR 60, 13 July 2006

‘Ordinary residence’ for purposes of responsibility under s21

An elderly woman lived all her life in Bexley where she owned her own home. She went into residential care in Bexley in May 2001 and sold her home to meet the care costs. In 2002 she required alternative care arrangements and Bexley LBC found a place for her in a care home in Greenwich. Bexley did not provide the accommodation under section 21. Shortly after moving into the care home, however, she became eligible for social services assistance with care costs. The Secretary of State determined that Greenwich were responsible because Bexley had not provided the accommodation under section 21.

Charles J dismissed an application for judicial review. The deeming provision under s24(5) did not apply as she had not been placed in the care home by Bexley under National Assistance Act 1948. She had since become ordinarily resident in Greenwich and Greenwich were therefore liable to meet the costs of paying for her accommodation.

See now: Care Act 2014 and Social Services Well-being (Wales) Act 2014.

R (S) v Lewisham LBC

[2008] EWHC 1290 (Admin), 15 May 2008

Where applicant had no settled residence the authority owing section 21 duty was authority where applicant was physically present on the day of application

The claimant lived, in turn, in Lambeth and Hackney. She applied to Lewisham for accommodation under National Assistance Act (NAA) 1948 s21. All three councils agreed that she was entitled to accommodation but they could not agree which of them should provide it. The secretary of state declared that the claimant had no ‘settled’ residence. On a claim for judicial review, Lewisham was ordered to house her pending the hearing. It sought an order requiring Hackney to meet those accommodation costs.

Davis J held that the authority subject to the section 21 duty for a person with no settled residence was the authority for the area where the person was physically present. On the day of her application to Lewisham, the claimant had physically been in Lewisham. No degree of residence in the area of the authority to which the claimant presented herself was required. Lewisham was liable to pay.

See now: Care Act 2014 and Social Services Well-being (Wales) Act 2014.

Accommodation for adults: Care Act 2014 and Social Services and Well-being (Wales) Act 2014

Care Act 2014 and Social Services and Well-being (Wales) Act 2014 repealed National Assistance Act 1948 s21 in both England and Wales. However, in R (SG) v Haringey () it was held that the principles that governed the provision of accommodation under National Assistance Act 1948 remained relevant to the provision of accommodation under the Care Act 2014. As such, relevant cases under the National Assistance Act 1948 are summarised below.

One important distinction is that under section 21 authorities were obliged to provide accommodation to applicants if they were satisfied that their needs meant that they required care and attention and that such care could not be provided if the applicant did not have accommodation. Under both the Care Act 2014 and Social Services and Well-being (Wales) Act 2014, authorities have a discretion as to what services they may provide to applicants with needs to care and support: R (SG) v Haringey (). However, it is likely to be irrational for an authority to refuse to provide applicants with accommodation if their need for care and support requires services that cannot be provided unless the applicant also has accommodation.

Supreme Court (formerly House of Lords)

R (M) v Slough BC

[2008] UKHL 52; [2008] 1 WLR 1808; [2008] 4 All ER 831; (2008) 11 CCLR 733; [2008] HLR 44; [2008] LGR 871; (2008) Times 5 September, 30 July 2008

Destitute HIV+ applicant who was on retroviral medication was not in need of ‘care and attention’

M came to the UK from Zimbabwe on a visitor’s visa. He was later diagnosed as being HIV positive and as possibly having AIDS. He was provided with retroviral medication to manage his condition. He overstayed his visa and later sought leave to remain under Article 3 ECHR, stating that if he was returned to Zimbabwe he would be unable to receive effective medical treatment and would die within a year of returning. He was therefore an asylum-seeker for the purposes of the Act. He was staying with a cousin but that accommodation was due to end. He required accommodation which would include provision for refrigeration of his medication. He applied to Slough for assistance under National Assistance Act 1948 s21. Following an assessment and a series of reviews Slough concluded that M did not qualify for accommodation under section 21 as he was able-bodied and could care for himself. He was not in need of ‘care and attention’. If he were to become homeless, any physical effects of this would solely result from his destitution and accordingly section 21(1A) debarred him from assistance that might otherwise have been provided under section 21. M applied for judicial review. The issue was whether housing should be provided by NASS (on the basis that the claimant had no need of care and attention) or by Slough.

In judicial review proceedings, Collins J held that responsibility lay on Slough and an appeal to the Court of Appeal was dismissed.

The House of Lords allowed Slough’s appeal. A person who only needed provision of normal housing (with a fridge) was not in need of ‘care and attention’. In order to be so, a person had to need ‘looking after’; M did not need looking after. M’s medical needs did not mean that he required ‘care and attention’. If M did need help as a result of medical needs, that particular assistance was ‘otherwise available’ from the NHS.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

Note: See R (SG) v Haringey LBC () where it was held that the same test (ie whether someone needed looking after) applied to the Care Act 2014.

R (SL) v Westminster CC

[2013] UKSC 27; [2013] 1 WLR 1445; [2013] 3 All ER 191; [2013] PTSR 691; [2013] HLR 30; [2013] BLGR 423; (2013) 16 CCLR 16, 9 May 2013

The need for care and attention had to be for services that are not available otherwise than through the provision of residential accommodation

SL was a failed asylum seeker. He approached Westminster and asked that they provide him with accommodation under National Assistance Act 1948 s21. SL had attempted suicide in 2009 after he had become homeless. He was subsequently diagnosed as suffering from depression and post-traumatic stress disorder. It was not in dispute, however, that, at the date of his application, SL had no self-care needs, no cognitive or motor difficulties and was sociable and able to form relationships. SL’s care co-ordinator gave evidence that while he suffered from anxiety, depression and low self-confidence, he did not need looking after. Rather SL required advice, encouragement and for his condition to be monitored. Westminster decided therefore that he was not in need of care and attention. This was upheld by the Administrative Court but overturned on appeal by the Court of Appeal. Laws LJ decided that SL’s care co-ordinator was ‘looking after’ SL by ‘doing something for the claimant which he cannot do for himself: he is monitoring his mental state so as to avoid if possible a relapse or deterioration.’

The Supreme Court allowed the appeal. The provision of care and attention did not cover all forms of social care or practical assistance. The need has to be for care and attention which is not available otherwise than through the provision of residential accommodation. This means that it has to be normally provided in the home (whether ordinary or specialised) or will be effectively useless if the claimant has no home. It need not, however, be specialised care and attention that can only be provided in a residential setting. This therefore meant more than, as in this case, monitoring someone from afar through weekly or monthly meetings.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

Note: See R (SG) v Haringey LBC () where it was held that the same test (ie whether someone needed looking after) applied to the Care Act 2014.

Court of Appeal

R v Kensington and Chelsea RLBC ex p Kujtim (also spelt Kutjim)

[1999] 4 All ER 161; (1999) 2 CCLR 340; [1999] LGR 761; (2000) 32 HLR 579; (1999) Times 5 August, CA

Council entitled to treat section 21 duty as ended if persistent refusal to comply with rules

Mr Kujtim, an Albanian asylum-seeker, was evicted from two lodgings because of violent behaviour towards staff, threats to kill the management and a failure to abide by the rules and regulations of the house. Scott Baker J held that in those circumstances the council was under no mandatory obligation to meet his continuing need for accommodation under National Assistance Act 1948 s21(1).

The Court of Appeal dismissed Mr Kujtim’s appeal. Where a person’s needs satisfy the criteria contained in National Assistance Act 1948 s21(1)(a), the authority has a continuing duty to provide accommodation while the person’s needs remain the same. However, an authority is entitled to treat its duty as discharged and to refuse to provide further accommodation if the person refuses accommodation offered or, following its provision, manifests by his or her conduct a persistent and unequivocal refusal to observe the authority’s reasonable requirements in relation to occupation of such accommodation. Before concluding that there has been such a refusal it is desirable that the authority write a final warning letter. Any decision by the authority to treat its duty as discharged by conduct requires a reassessment both of current need and careful consideration of the nature of that conduct, including any medical condition or infirmity known to the authority. By the time of the hearing Mr Kujtim had left the UK of his own accord. The authority agreed to reassess the situation in the light of a psychiatric report that had been prepared on him, should he return.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R v Sefton MBC ex p Help the Aged

(1997) 1 CCLR 57; (1997) Times 23 August, CA

Lack of funds did not excuse council from performing section 21 duty

Sefton adopted a policy of taking into account its own resources when deciding whether to offer assistance under National Assistance Act 1948 s21(1)(a).

The Court of Appeal granted Help the Aged’s appeal against a dismissal of its application for judicial review. Where a local authority is satisfied that a person is in need of care and attention which is not otherwise available to him or her, the section 21 duty is owed and lack of funds does not excuse the authority from performing its duty to make appropriate arrangements.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (Khana and Karim) v Southwark LBC

[2001] EWCA Civ 999; (2001) 4 CCLR 267; [2002] HLR 31; (2001) Times 15 September, CA

Section 21 duty is to meet needs, not satisfy preferencesTimes 5 August, CA

The applicants, an elderly couple, sought judicial review of the council’s decision to meet their care needs by provision of places in a residential care home. The applicants wanted, for personal and cultural reasons, to live in the community independently in a home of their own, with the support of their relatives and the statutory services. Hallet J dismissed the application. The council had carefully considered all relevant matters and the central government guidance. That consideration included weight being given to the wishes of the couple but the council concluded that their needs could only be met in a residential setting. If the couple refused ‘point blank’ to take the residential care unit, even after the judgment had been explained to them, that refusal would be ‘unreasonable’ for the purpose of relieving the council of a continuing duty (subject to review) – applying R v Kensington and Chelsea RLBC ex p Kujtim [1999] EWHC 285 (Admin) (see now the Court of Appeal decision (R v Kensington and Chelsea RLBC ex p Kujtim (also spelt Kutjim))).

The Court of Appeal dismissed the applicants’ appeal. A local authority’s duty is to assess and meet applicants’ needs, not to satisfy their preferences. Where a local authority concludes that the only way to meet needs is to offer space in a full-time residential home and where that conclusion and the reasonableness of the offer cannot be challenged, the local authority has satisfied its duty under the legislation.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (Nassery) v Brent LBC

[2011] EWCA Civ 539; [2011] LGR 711; (2011) Times 5 July, 11 May 2011

Applicant with no current need for ‘care and attention’ but with possible need arising in the future outside section 21Times 5 September, 30 July 2008

The claimant sought judicial review of the council’s decision that he was not in need of ‘care and attention’ and therefore did not qualify for accommodation under National Assistance Act 1948 s21. His case was that, in the light of his mental illness, personality disorder, history of self-harm and previous detention under the mental health legislation, the council should have been satisfied that he either now needed or in future would need care and attention. HHJ Robinson, sitting as a Deputy High Court Judge, dismissed Mr Nassery’s claim for judicial review.

The Court of Appeal dismissed an appeal. It held that on the facts as at the date of the council’s decision, the claimant’s condition had been under control. To provide for someone who might in due course need care and attention was beyond what the statute required, applying R (M) v Slough BC (R (SO) v Barking and Dagenham LBC).

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (SG) v Haringey LBC

[2017] EWCA Civ 322, 3 May 2017

Appeal against refusal to declare that authority was obliged to provide accommodation under Care Act 2014 dismissed as it was academic; comments within the decision of the High Court that authority had a discretion to provide accommodation were, however, obiter and should not be followed

The claimant was an asylum-seeker from Afghanistan. She was provided with asylum support pursuant to Immigration and Asylum Act 1999 s95, which included accommodation. On 20 May 2015, Haringey decided that the claimant had eligible needs for care and support under the Care Act 2014 but she was not entitled to be provided with accommodation pursuant to section 18 of that Act in order to meet those needs.

On a claim for judicial review, John Bowers QC, sitting as a Deputy High Court Judge, allowed a claim for judicial review on the basis that, firstly, the claimant had been entitled to have, but did not have, an independent advocate to support her during the assessment process and, secondly, by failing to give any proper consideration to whether SG’s needs called for the provision of accommodation. He declined to grant a declaration that the council was bound to provide the claimant with accommodation pursuant to the Care Act 2014 as he decided it was for the authority determine, in the exercise of its discretion, the answer to that question.

The Court of Appeal dismissed an appeal from the refusal of that declaration. It held that the role of a local authority under Care Act 2014 s18, whether it be a duty or a power, only comes into play after a valid determination under s13 has been made to the effect that the relevant individual has accommodation-related care and support needs. As the judge found, the council had wholly failed to address the question of accommodation during its assessment and therefore it had not made a relevant determination under section 13 sufficient to trigger the next stage of the process, with respect to accommodation under section 18 and the care and support plan required by section 23(4)(1)(a). The judge had therefore set the May 2015 assessment aside with the implication that it would have to be undertaken afresh. On the facts of the case, and the judge’s findings on those facts, any wider question as to the local authority’s role under section 18 was premature and did not fall for determination by the judge or by the Court of Appeal. That said, the judge comments that it was for the authority to determine whether accommodation ought to be provided were obiter and should not be followed in any future case.

R (Wahid) v Tower Hamlets LBC

[2002] EWCA Civ 287; (2002) 5 CCLR 239; [2003] HLR 2; [2002] LGR 545

Section 21 is a safety net provision; duty premised on an unmet need; overcrowding did not trigger duty

The claimant, aged 53, lived with his wife and their eight children in a two-bedroomed council flat. From November 2000 to January 2001 he was in hospital receiving treatment for schizophrenia, from which he had been suffering since 1972. On his discharge he sought an assessment under National Health Service and Community Care Act 1990 s47. The council concluded that for the purposes of National Assistance Act 1948 s21 the claimant was not ‘in need of care and attention’ that was not otherwise available to him. It considered that support was being provided under Mental Health Act 1983 s117(2) by social services to address his mental health problems and that the risk of a breakdown being caused by overcrowding was relatively small. It accepted that his accommodation was overcrowded and unsuitable and assisted him in obtaining a medical priority under the allocation scheme. Offers of accommodation were made to him and his adult sons but turned down on the basis that they were unsuitable. Stanley Burnton J dismissed his application for judicial review, holding that section 21 was a safety net provision of last resort and that neither overcrowding nor any other risk to health arising from housing conditions triggered the section 21 duty.

The Court of Appeal dismissed Mr Wahid’s appeal. Although ordinary housing could be provided under section 21, it did not follow that because the claimant needed ordinary housing a duty arose to provide it to him. The duty to provide accommodation under section 21 is premised on an unmet need for ‘care and attention’ (a ‘condition precedent’). The fact that a person was in need of accommodation did not make him in need of care and attention. It was for the local authority to determine whether the applicant was in need of care and attention. The council had considered the medical evidence and medical opinion on any future risk to the health of the claimant if he were not rehoused and its conclusion that there was no unmet need for care and attention was one which it was entitled to reach and was not irrational.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (Z) v Hillingdon LBC

[2009] EWCA Civ 1529; (2010) 13 CCLR 157, 17 December 2009

Blind asylum-seeker owed a duty under section 21(1)(a)Times 5 September, 30 July 2008

The claimant was an asylum-seeker awaiting a decision on his asylum application. He was also disabled. He sought accommodation from the council under National Assistance Act 1948 s21. The council decided that he did not need ‘care and attention’. In the Administrative Court that decision was quashed. The council appealed.

The Court of Appeal dismissed the appeal. Applying the approach to the assessment of care and attention set out in R (M) v Slough BC (R (M) v Slough BC) by Baroness Hale at paragraph 33, Laws LJ said:

The question at the end is as to the council’s view of the facts in the light of paragraph 33 in the M case. I have already summarised the claimant’s needs as the council found them. Some are clearly related to the claimant’s functioning in home surroundings. He is, as I have said, totally blind. While Lady Hale’s approach in paragraph 33 would no doubt not be met by problems that are de minimis, this is far from such a case. The claimant needs others to do what he cannot do for himself to a substantial extent. A reasonable local authority was bound to find that he fell within section 21(1)(a) (para 19).

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

High Court

R v Newham LBC ex p C

(1999) 31 HLR 567, QBD

Authority misunderstood its powers or fettered its discretion in deciding that it could only provide B&B accommodation and not self-contained accommodation under s21

See Housing Law Casebook 4th edition, U5.10.

R v Newham LBC ex p Medical Foundation for the Care of Victims of Torture

(1998) 1 CCLR 227; (1998) 30 HLR 955, QBD

‘Residential accommodation’ not limited to institutional accommodation

See Housing Law Casebook 4th edition, U5.11.

R v Newham LBC ex p Plastin

(1998) 1 CCLR 304; (1997) 30 HLR 261, QBD

Able-bodied man entitled to work not in urgent need of care and attention –despite lack of English and ineligibility for benefits

See Housing Law Casebook 4th edition, U5.12.

R v Richmond upon Thames LBC ex p T

January 2001 Legal Action 27; 20 July 2000, QBD

Where description of accommodation not mere preference but part of needs, duty was to provide that accommodation

Mr T had a history of mental health problems. He was assessed as ready to return from supported hostel accommodation to ordinary housing in the community. His doctor wrote ‘He is requesting to get accommodation in a street house in a residential area which I believe is entirely justified considering his mental health needs.’ The council initially offered tower block accommodation (in error) and then flats in smaller blocks of flats.

Newman J held that the council had failed to meet its duties owed to Mr T under National Assistance Act 1948 s21. He held that the description of the accommodation put forward was not mere preference but part of the individual applicant’s needs. (See R v Avon CC ex p M (1993) 2 CCLR 185, QBD.) He granted an order of mandamus, that the council ‘provide the applicant with accommodation in accordance with his lawfully assessed needs, including his psychological needs’ within three months.

See now Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (AA) v Lambeth LBC

[2001] EWHC Admin 741; (2002) 5 CCLR 36, 19 September 2001

Social services have power to provide accommodation pending assessment

The claimant was an asylum-seeker. He suffered from hepatitis B. He was destitute and sought assistance from the defendant council, a social services authority. It failed to assess his needs under National Health Service and Community Care Act 1990 s47. The claimant sought judicial review (for which permission was granted) and an interim order requiring the provision of accommodation. The council contended that until the s47 assessment was completed, there could be no duty (or power) to accommodate pursuant to National Assistance Act s21 and that, accordingly, the provision of interim accommodation would be ultra vires.

Forbes J held that, as enacted, s21 gave a local authority a power (and thus the vires) to accommodate a person in the claimant’s circumstances. Even if that were wrong, the court itself had power in appropriate cases (of which this was one) to order the council to secure accommodation on an interim basis.

R (GS) v Camden LBC

[2016] EWHC 1762 (Admin); [2016] HLR 43; (2016) 19 CCLR 398, 27 July 2016

A need for accommodation did not give rise to a need for care and support (R (GS) v Camden LBC)

R (Mooney) v Southwark LBC

[2006] EWHC 1912 (Admin); (2006) 9 CCLR 670; 6 July 2006

Where need is for ‘housing’ but not ‘care and attention’, no section 21 duty owed; alternatively need being met by priority for transfer

The claimant was the single parent of three children. She had a disability rendering her incapable of using stairs. She had a room on the ground floor of a maisonette. Her two 9-year-old twins, who had emotional and behavioural problems and required constant supervision, had their bedroom upstairs, as did her 17-year-old son. After carrying out assessments, social services nominated her for a priority transfer under the council’s allocation scheme. The claimant sought judicial review of the council’s failure to accommodate her under National Assistance Act 1948 s21.

Jackson J dismissed the claim. The first question to ask was whether the council was in breach of duty under section 21. The council’s assessments undoubtedly identified a need for more suitable accommodation, both for the claimant and for her children. However, identifying a need for housing was not the same as identifying a need under section 21(1) (applying R (Wahid) v Tower Hamlets (R (Wahid) v Tower Hamlets LBC)). The needs of the children could not trigger a duty under section 21. On analysis, there was no acceptance by the council of a need that triggered section 21(1) – the various assessments did not suggest that the claimant was in need of care and attention by reason of her disability and that such care and attention was not available to her otherwise than by the provision of accommodation under section 21. On the contrary, the assessments were to the effect that additional social services support would be provided and a priority nomination made under the allocation scheme. That brought into play section 21(8) which prevented section 21(1) from imposing an obligation in the circumstances. The second question was whether the council acted lawfully in deciding that the claimant did not have a need triggering section 21. There was nothing irrational or otherwise unlawful in the council’s decision that the need for better accommodation could be met by means of a priority nomination. (R v Wigan MBC ex p Tammadge (1997–98) 1 CCLR 581 and R v Islington LBC ex p Batantu distinguished.)

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (Patrick) v Newham LBC

(2001) 4 CCLR 48, QBD

Council’s reliance on applicant’s refusal of hostel did not discharge section 21 duty where no assessment and no explanation of offer

The claimant was evicted from accommodation provided under Housing Act 1996 s190 (short-term duty to intentionally homeless). Within a fortnight she began sleeping rough. Later the same month she came to the attention of the council again and it offered her a hostel place in south London at a charitable centre for those with mental health problems. She refused it. Ten days later a certificate of mental incapacity was granted. Solicitors instructed by the Official Solicitor asked the council to arrange accommodation. It refused. On her application for judicial review, the council contended that the offer of the hostel place had discharged any duty under National Assistance Act 1948 s21.

Henriques J granted judicial review. He held that the council had failed to carry out any assessment of her needs under the National Health Service and Community Care Act 1990 s47. The council’s reliance on the refusal of the hostel place was vitiated by its failure, at the time of its offer, to ensure that it had explained the offer and the consequences of refusal to the point of comprehension. He made an order that the council conduct a s47 assessment and provide accommodation forthwith.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

Eligibility

Both the Care Act 2014 s21(1) and Social Services and Well-being (Wales) Act 2014 exclude adults who (a) require leave to enter and remain but not have it, or (b) have such leave but it is subject to a condition that he or she does not have recourse to public funds, or (c) was granted such leave as a result of a maintenance undertaking, from being provided with accommodation under Care Act 2014 and Social Services and Well-being (Wales) Act 2014 Part 1 if his need for care and attention has arisen solely because he is destitute or because of the physical effects, or anticipated physical effects, of his being destitute. This is the same as the test that used to apply under the National Assistance Act 1948.

Until the decision of R (SL) v Westminster CC (R (SL) v Westminster CC) it had been thought that applicants would meet this test if they could demonstrate that their need for care and attention, under section 21, was to any material extent made more acute by some circumstance other than the mere lack of accommodation or funds, such as age, illness or disability (R (Mani) v Lambeth LBC [2003] EWCA Civ 836; [2004] HLR 5). This is now qualified, however, by the fact that the need for care and attention must also be for services of a sort usually provided in a home. In R (SG) v Haringey LBC () it was held that the same principles apply under the new legislation.

Nationality, Immigration and Asylum Act 2002 Sch 3 further excludes the same class of people who are ineligible for support under the Children Act 1989 (see Eligibility above) from support under Care Act 2014 Part 1 and Social Services and Well-being (Wales) Act 2014 unless the refusal to provide support would breach their EEA treaty rights or rights under ECHR.

This means that asylum seekers are only entitled to support under Care Act 2014 Part 1 or Social Services and Well-being (Wales) Act 2014 if their need for care and attention does not arise from the effect of being destitute. Asylum seekers who otherwise require accommodation must apply for accommodation from the Secretary of State under Immigration and Asylum Act 1999 s95.

Failed asylum seekers are only entitled to support under Care Act 2014 or Social Services and Well-being (Wales) Act 2014 if the refusal to provide such support would amount to a breach of their rights under the ECHR. Otherwise, they must apply for support under Immigration and Asylum Act 1999 s95A.

Supreme Court (formerly House of Lords)

R (Westminster CC) v National Asylum Support Service

[2002] UKHL 38; [2002] 1 WLR 2956; [2002] 4 All ER 654; [2002] HLR 58; (2002) 5 CCLR 511; [2003] LGR 23; (2002) Times 18 October, 17 October 2002 (also known as R (Westminster CC) v Secretary of State for the Home Department)

Infirm destitute asylum-seekers are the responsibility of local authorities, not NASS

Mrs Y-Ahmad came to the UK with her daughter and sought asylum. She was not only destitute but also suffered from spinal cancer and required special facilities as a result of that condition. Westminster argued that the burden to support and accommodate destitute asylum-seekers had been removed by introducing s21(1A). It contended that Mrs Y-Ahmad and her daughter were entitled to support provided by NASS under Immigration and Asylum Act 1999 s95. NASS claimed that the burden was moved to central government only in relation to asylum-seekers whose need arose solely from their destitution rather than because they were also sick, elderly or disabled and that Westminster was obliged to provide accommodation under s21. NASS conceded that, if Westminster was not obliged to accommodate and support Mrs Y-Ahmad, it would do so under Immigration and Asylum Act 1999 s95. Westminster’s judicial review and appeal to the Court of Appeal were dismissed and it appealed to the House of Lords.

The House of Lords dismissed Westminster’s appeal. Local authorities are obliged to provide accommodation for destitute asylum-seekers who are in need of care and attention and whose need does not arise solely from destitution but also arises from infirmity. Lord Hoffman said:

The use of the word ‘solely’ [in s21(1A)] makes it clear that only the able bodied destitute are excluded from the powers and duties of s21(1)(a). The infirm destitute remain within. Their need for care and attention arises because they are infirm as well as destitute. They would need care and attention even if they were wealthy. They would not, of course, need accommodation, but that is not where section 21(1A) draws the line.

As support was available to infirm asylum-seekers under National Assistance Act 1948 s21 they could not be deemed destitute for the purposes of Immigration and Asylum Act 1999 s95(1) and were excluded from such support.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

Court of Appeal

Croydon LBC; Hackney LBC v R (AW, A and Y)

[2007] EWCA Civ 266 (Admin); (2007) 9 CCLR 225; [2007] LGR 417; (2007) Times 11 May, 4 April 2007

Local authorities are responsible under section 21 for ‘destitute plus’ failed asylum-seekers who make purported fresh claims for asylum, not NASS

The claimants were asylum-seekers. Their claims failed. Subsequently they purported to make fresh claims for asylum. The Secretary of State had refused to consider Y’s fresh claim and had yet to make a decision whether or not to accept those made by AW and A. Removal directions had not been issued against them. The claimants claimed they were entitled to support under section 21(1A) because they were ‘destitute plus’. Their applications were refused. Within judicial review proceedings the parties sought a preliminary ruling on three issues. The High Court held that a failed asylum-seeker was excluded from assistance under section 21 unless provision is necessary to avoid a breach of an applicant’s ECHR rights. If provision was needed such support was to be given under section 21 by the local authority rather than NASS. In deciding whether support was necessary to avoid a breach of the ECHR, the local authority was entitled to consider all the circumstances, which included the merits of the fresh claim for asylum. However, ‘in many cases – possibly the great majority – it may well be inappropriate for the public body to embark on any consideration of the purported fresh claim’ and it should provide support.

The Court of Appeal dismissed the appeal against the finding that support must be provided to failed asylum seekers by the local authority where it is necessary to avoid a breach of the ECHR.

See now: Care Act 2014 and Social Services Well-being (Wales) Act 2014.

R v Wandsworth LBC ex p O; R v Leicester CC ex p Bhikha

[2000] 1 WLR 2539; [2000] 4 All ER 590; (2000) 3 CCLR 237; [2000] LGR 591; (2001) 33 HLR 419, 22 June 2000, CA

Section 21(1A) applies where an applicant’s need for care and attention is to any material extent made more acute by circumstances other than destitution; s21 concerned with need – unlawful presence irrelevant

The claimants were subject to immigration control as ‘over-stayers’. One had severe psychiatric problems and the other had recurring cancer of the duodenum which required continuous medical treatment. Both were destitute. They applied to the Secretary of State for the Home Department for exceptional leave to remain (ELR), on the ground that there was credible medical evidence that return to their countries of nationality would result in substantial damage to their physical or psychological health. Both appellants were ineligible for benefits and became destitute. They applied to their local authorities for accommodation and support under National Assistance Act 1948 s21. In reliance on R v Brent LBC ex p D (1999) 31 HLR 10; (1998) 1 CCLR 234, QBD, the authorities refused assistance on the ground that, although they might suffer serious injury as the result of having to go back to live in their countries of origin, they were nonetheless able to travel and leave the United Kingdom without risking life or serious injury. Accordingly, it was contended, the principle that no one may take advantage of their own wrongdoing applied to them and they could not be assisted under s21 if they remained unlawfully in the UK.

The Court of Appeal held that this principle did not apply in the context of National Assistance Act 1948 s21. Section 21 was concerned exclusively with questions of need. Unlawful conduct – including unlawful presence in the United Kingdom – did not preclude eligibility for assistance. R v Brent LBC ex p D was wrong to hold that a public policy exclusion applies to persons other than those unable to travel. Simon Brown LJ said:

… s21(1) affords the very last possibility of relief, the final hope of keeping the needy off the streets. Not even illegality should to my mind bar an applicant who otherwise qualifies for support … the local authority has no business with the applicant’s immigration status save only for the purpose of learning why the care and attention ‘is not otherwise available to them’ as s21(1) requires – and indeed … for reporting such applications to the immigration authorities if they conclude that the Home Office is unaware of their presence here. In my judgment, however, it should be for the Home Office to decide (and ideally decide speedily) any claim for ELR and to ensure that those unlawfully here are promptly removed, rather than for local authorities to, so to speak, starve immigrants out of the country by withholding last resort assistance from those who today will by definition be not merely destitute but for other reasons too in urgent need of care and attention … this particular benefit is of such a nature that, where otherwise claimable, it should not be withheld on the public policy ground of illegality.

The Court of Appeal also considered the meaning and effect of the new s21(1A), inserted by Immigration and Asylum Act 1999 s116. On this Simon Brown LJ said:

The appellants … submit that if an applicant’s need for care and attention is to any material extent made more acute by some circumstances other than the mere lack of accommodation and funds, then, despite being subject to immigration control, he qualifies for assistance. Other relevant circumstances include, of course, age, illness and disability, all of which are expressly mentioned in s21(1) itself. If, for example, an immigrant, as well as being destitute, is old, ill or disabled, he is likely to be yet more vulnerable and less well able to survive than if he were merely destitute … I have not the slightest hesitation in preferring [this approach]. The word ‘solely’ in the new section is a strong one and its purpose there seems to me evident. Assistance under the 1948 Act is, it need hardly be emphasised, the last refuge for the destitute. If there are to be immigrant beggars on our streets, then let them at least not be old, ill or disabled.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

Note: The claimants would now potentially be ineligible by way of Nationality, Immigration and Asylum Act 2002 Sch 3.

R (O) v Haringey LBC

[2004] EWCA Civ 535; [2004] FLR 476; (2004) 7 CCLR 310; [2004] LGR 672; [2004] HLR 44; (2004) Times 27 May

R (O) v Haringey LBC

Where applicant infirm and destitute but children merely destitute, local authority responsible for applicant and NASS responsible for children

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

High Court

R (AG and MD) v Leeds CC

[2007] EWHC 3275 (Admin), 11 December 2007

Expectant mothers excluded from section 21 could not get help under section 21(1)(aa)

The claimants were failed asylum-seekers and were expectant and (later) nursing mothers. They claimed that the council was required to assist them under National Assistance Act 1948 s21 – as they had no accommodation or support – or it had power to do so under section 21(1)(aa). The secretary of state was willing to provide assistance under Immigration and Asylum Act 1999 s4. She and Leeds submitted that that was the only duty or power under which accommodation could be provided.

Mitting J dismissed claims for judicial review. The claimants were excluded from assistance under section 21(1)(a) because their needs had arisen solely from destitution: section 21(1A).

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (De Almeida) v Kensington and Chelsea RLBC

[2012] EWHC 1082 (Admin), (2012) 15 CCLR 318; (2012) 127 BMLR 82, 27 April 2012

It was necessary to provide accommodation under section 21 to avoid a breach of Article 3; the claimant’s case was exceptional because he was at the end of his life and he would be unable to obtain accommodation and financial support in Portugal

The claimant, a Portuguese national living in the UK, suffered from skin cancer, depression, AIDS and hepatitis C. He did not have a right to reside and so was subject to immigration control. When he became too ill to work, he was evicted from his private rented accommodation because he could no longer pay the rent. He supported himself until his funds ran out. His friends then provided food and accommodation. He moved into a 400-room hostel with shared bathroom facilities. In November 2011, his life expectancy was about six months. He applied to the council for accommodation under National Assistance Act 1948 s21. It decided that he did not qualify and could obtain such assistance as he needed by returning to Portugal. He applied for a judicial review of the council’s latest community care assessment of his needs.

Lang J held that the council’s decisions that he had no eligible needs requiring care and attention within the meaning of section 21; and that it was not necessary to make arrangements for him under section 21 for the purpose of avoiding a breach of the ECHR (see Nationality, Immigration and Asylum Act 2002 Sch 3 para 3) were both unlawful.

The claimant’s case was exceptional as he was at the end of his life and he would not be able to obtain the accommodation and benefits he would need in Portugal. His illness had reached such a critical stage that it would be inhuman treatment to deprive him of the care which he is currently receiving and to send him back to Portugal.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (P) v Camden LBC

[2004] EWHC 55 (Admin), 14 January 2004

No breach of Article 8 for applicant to return to USA to obtain assistance

Mr P was an American national who lived in the UK. He was married to a British national who had a tenancy of a flat. He was subject to immigration control, the terms of which included a condition that he could not have recourse to public funds. He suffered from mental health problems. At times he had received support from relatives in the USA. Although both he and his wife wanted their marriage to succeed, she said that she was unable to live with Mr P when he was ill. In October 2003, he was admitted to a psychiatric unit. On his discharge, his wife felt unable to live with him and he applied to Camden for assistance under National Assistance Act 1948 s21. Following an assessment, Camden concluded that it was not under a duty to provide assistance since accommodation was otherwise available to him. He could reasonably live with his wife and, failing that, he could return to the United States and obtain assistance there. Camden’s assessment was that it was not breaching his rights under Article 8 ECHR. Mr P sought judicial review of the assessment, claiming that Camden’s assessment was irrational.

Richards J dismissed the application. It was reasonably open to Camden to conclude that P’s wife would not leave the claimant without accommodation. In any case, it had been reasonable for the authority to conclude that the claimant would be able to obtain assistance in the United States. There was no basis on which it could be said that the Mr P’s rights under Article 8 had been infringed.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

R (Sharef) v Coventry CC

[2009] EWHC 2191 EWHC (Admin), 13 May 2009

Applicant recovering from non-Hodgkinson’s lymphoma not an exceptional case and therefore not eligible

The applicant was a failed asylum seeker and a Chad national. He had previously been diagnosed as suffering from follicular non-Hodgkinson’s lymphoma and Coventry had accommodated him National Assistance Act 1948 s21. After treatment the applicant’s doctors confirmed that he was in remission and there was no evidence of the cancer returning. At this point Coventry decided to withdraw his accommodation on the basis that he was no longer in need of care and attention. Shortly afterwards his asylum claim was refused. The applicant’s solicitors requested that Coventry carry out a fresh assessment to determine whether he was entitled to accommodation under section 21. Coventry refused contending that he was not eligible for assistance by way of Nationality and Immigration Act 2002 Sch 3. He sought judicial review that decision on the ground that the authority were obliged to carry out an assessment of his need for accommodation under s21 on the basis of a medical report which showed that his condition would worsen if he was not provided with stable accommodation.

The claim for judicial review was dismissed. There was no obligation on the authority to carry out an assessment of an applicant’s needs under section 21 if they were satisfied that he was not eligible for assistance. The decision that the applicant was ineligible was also not unlawful. Coventry had been right to hold that the applicant’s Article 3 rights would not be infringed if he was not provided with accommodation; he was free to return to Chad and the ECHR did not require member states to provide medical treatment that was not available within a person’s country or origin other than in exceptional circumstances (N v Secretary of State for Home Department [2005] UKHL 31; [2005] 2 AC 296).

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

See also: R (N) v Coventry CC [2008] EWHC 2786 (Admin) – failed asylum seeker who was HIV positive and suffering from tuberculosis, meningitis and syphilis not an exceptional case.

R (Tekeste) v Islington LBC

[2008] EWHC 2405 (Admin), 18 June 2008

Council entitled not to exercise power to accommodate fit applicant despite caring for her mother

The claimant was a failed asylum-seeker. The secretary of state was providing her with ‘hard cases’ support and accommodation in London under Immigration and Asylum Act 1999 s4. She was the principal carer for her disabled mother who was being accommodated by Islington under National Assistance Act 1948 s21. When faced with the prospect of dispersal to a regional centre by the secretary of state, the claimant invited Islington to accommodate her with or near to her mother. When it declined, she sought judicial review asserting a direct right to such accommodation or an indirect right (based on her mother’s needs for care).

Ouseley J dismissed the claim. The claimant had no direct right to section 21 assistance as she was fit and able bodied. Even if she had had the requisite needs, her immigration status barred her from section 21 assistance: section 21(1A). For those reasons she could not be given assistance under Local Government Act 2000 s2: Local Government Act s3. The indirect claim also failed. Although section 21(2) contains a power to provide section 21 accommodation for family members in addition to a disabled person, Islington had declined to exercise that power. It had done so based on a needs assessment which did not indicate that the mother needed the claimant to be accommodated with her. That assessment had not been challenged. Although the secretary of state disclaimed any power to meet the claimant’s costs of travelling to care for her mother, the council accepted that Local Government Act s2 might cover those costs. The question of payment for such costs had not yet arisen.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

Note: Support under Immigration and Asylum Act 1999 s4 was abolished by the Immigration Act 2016.

Mental Health Act 1983 s117

High Court

R (Mwanza) v Greenwich LBC and Bromley LBC

[2010] EWHC 1462 (Admin); [2011] PTSR 965; [2010] BLGR 868; (2010) 13 CCLR 454; [2010] MHLR 226, 15 June 2010

After care services were limited to meeting a need that arose directly from an applicant’s mental disorder; exceptionally that might extend to the provision of bare accommodation

The claimant was a Zambian national. He entered the UK lawfully with his wife and their two children. Shortly afterwards the claimant was detained under Mental Health Act 1983 s3. On his discharge he returned to live at an address in Greenwich.

Greenwich adopted a care plan which set out the after-care services he would be provided with but he failed to engage and Greenwich told him that its duty had ended. The claimant and his wife’s leave to remain then expired and an application to extend it was refused. This prevented the claimant and his wife from working in the UK and they became unable to pay the rent for the hostel they resided at in Bromley and they were evicted for rent arears.

The claimant’s solicitors sent a pre-action protocol letter to Bromley demanding that financial support and accommodation be provided to the claimant under either Mental Health Act s177 or National Assistance Act 1948 s21. This was refused. The claimant issued judicial review proceedings against both Bromley and Greenwich.

The Administrative Court dismissed the claims against both Greenwich and Bromley. Section 117 does not impose a general duty upon local authorities to provide financial support or accommodation. After-care services are limited to services that meet a need arising directly from a person’s mental disorder and are required to reduce that person’s chance of being re-admitted to hospital for the disorder. In certain exceptional cases that might include the provision of an assured shorthold tenancy, but this was not such a case; the need for housing arose from the claimant and his wife’s immigration status and their inability to work and not from his mental disorder. The claimant was not entitled to assistance under s21 because he was unlawfully present in the UK and his return to Zambia would not breach his rights under ECHR.

Immigration and Asylum Act 1999

Times 4 November, 3 November 2005Asylum-seekers and their dependents who are likely to become destitute are entitled to accommodation, which is adequate for their needs, provided by the secretary of state: Immigration and Asylum Act 1999 ss95-96. Accommodation is generally provided in ‘dispersal’ areas where there is a ready supply of accommodation. An asylum-seeker’s preference as to the type and location of his or her accommodation must not be taken into account, but their circumstances are relevant to the accommodation provided: s97.

Failed asylum seekers, ie persons whose asylum claims have been rejected, and their dependants may be provided with accommodation by the Secretary of State if they are destitute, or are likely to become destitute, and the failed asylum seeker faces a genuine obstacle to leaving the United Kingdom: s95A.

Nationality, Immigration and Asylum Act 2002 s55 provides that an asylum-seeker who fails to claim asylum ‘as soon as reasonably practicable’ after arrival in the UK cannot be provided with support under Immigration and Asylum Act 1999 ss4, 98 or 95. This exclusion does not apply to asylum-seekers with dependent children. Furthermore, it does not prevent support to the extent necessary to avoid breach of an applicant’s ECHR rights (s55(5)). Since the House of Lords decision in R (Limbuela, Tesema and Adam) v Secretary of State for the Home Department (R (Limbuela, Tesema and Adam) v Secretary of State for the Home Department) the use of s55 has been very limited. Refusals of support generally relate to asylum-seekers staying with friends or relatives and seeking ‘subsistence only’ support.

Supreme Court (formerly House of Lords)

R (Limbuela, Tesema and Adam) v Secretary of State for the Home Department

[2005] UKHL 66; [2006] 1AC 396; [2005] 3 WLR 1014; [2007] 1 All ER 951; (2006) 9 CCLR 30; [2006] HLR 10; (2005) Times 4 November, 3 November 2005

Refusal of asylum support to destitute asylum-seekers breached ECHR Article 3

The claimants were all destitute asylum-seekers who were refused asylum support as a result of Nationality, Immigration and Asylum Act 2002 s55 on the basis that they had not applied for asylum as soon as reasonably practicable and that the denial of support would not breach their ECHR rights.

Mr Limbuela, a 23-year-old Angolan national, spent two nights sleeping on the street, outside a police station. He begged for food without success. He was then provided with accommodation and food in a night shelter for four nights. He suffered from stomach pains and had also been to his GP concerning other complaints including constipation, a cough and pain in his testicles. When he was no longer able to stay in the night shelter he applied for judicial review and obtained interim relief.

Mr Tesema, a 26-year-old Ethiopian national, obtained interim relief before having to spend any time without accommodation or food. A psychiatrist then prepared a report which recounted Mr Tesema’s maltreatment in Ethiopia and set out various physical ailments of which Mr Tesema complained (some loss of hearing and intermittent pain). The psychiatrist diagnosed him as suffering from some anxiety.

Mr Adam, a 27-year-old Sudanese national, spent nearly a month sleeping on the streets outside the Refugee Council’s offices in Brixton, where he obtained a meal and had access to washing facilities during the day. He obtained medical evidence indicating that he suffered from haemorrhoids, back pain and gastritis and was psychologically depressed.

All three claimants applied for judicial review and their claims were allowed at first instance. The Court of Appeal, by a majority, dismissed the appeals and the secretary of state appealed to the House of Lords.

The House of Lords dismissed the appeal.

1)Article 3 ECHR imposes an absolute obligation on a state to refrain from acts or omissions which result in inhuman or degrading treatment. The test of what amounts to such treatment is no more exacting where the treatment is the result of a legitimate government policy.

2)In the context of the regime applied to asylum-seekers, including the general prohibition on work, the refusal of support by virtue of section 55 amounted to ‘treatment’ for the purposes of Article 3 ECHR.

3)The Article 3 threshold is a high one and it is not possible to imply a general public duty to house the homeless or provide for the destitute. The secretary of state’s power under section 55(5)(a) to avoid a breach of Article 3 arises when it appears that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by the denial of shelter, food or the most basic necessities of life. It is not possible to formulate any simple test applicable in all cases. However, the threshold is, in the ordinary way, crossed if there is persuasive evidence than an applicant is obliged to sleep in the street, except perhaps for a short and foreseeably finite period, or is seriously hungry, or unable to satisfy the most basic requirements of hygiene.

Court of Appeal

R (A) v National Asylum Support Service and Waltham Forest LBC

[2003] EWCA Civ 1473; [2004] 1 WLR 752; [2004] 1 All ER 15; (2003) 6 CCLR 538; [2004] LGR 1; [2004] HLR 24; [2004] 1 FLR 704; (2003) Times 31 October, 23 October 2003

Local authority was only under an obligation to assist the Secretary of State in obtaining adequate accommodation for an asylum seeker who was the mother of a disabled child

The Court of Appeal held that

•Immigration and Asylum Act 1999 ss95 and 122(3) provide that the accommodation be adequate. This should be equated with the suitability of accommodation under National Assistance Act 1948 s21. There is no justification for providing a different standard of accommodation for disabled children under section 95 compared with disabled adults under section 21. To do so would be discriminatory under ECHR Article 14.

•The difference lay in the context. The context of asylum support was that the accommodation is intended to be temporary and to prevent destitution.

•When considering the adequacy of accommodation a balancing exercise has to be carried out. The question at the forefront is whether the accommodation is adequate for the needs of the disabled children in the circumstances which persist at that moment in time. Accommodation that may be adequate in the short term might become inadequate over the longer term.

•The assessment of adequacy, however, can take account of the difficulty in finding adequate accommodation.

•NASS were not in breach of their duty at the time the application was heard, having regard to the efforts that they had made to find accommodation and A’s failure to use the accommodation in a way that would mitigate the difficulties for the family.

R (EW) v Secretary of State for the Home Department

[2009] EWHC 2957 (Admin), 18 November 2009

Article 3 does not prescribe a minimum standard of social supportTimes 4 November, 3 November 2005

In deciding a claim for judicial review of an immigration decision, the Administrative Court considered the extent to which Article 3 ECHR requires the state to provide accommodation to the homeless. After reviewing R (Limbuela) v Secretary of State for the Home Department (R (Limbuela, Tesema and Adam) v Secretary of State for the Home Department), Hickinbottom J said:

… the important point to note is that there is no general right to accommodation or a minimum standard of living that can be drawn from the [convention] or the Directives, or from elsewhere in the European or our domestic human rights, social or other legislation. The setting of such a minimum standard – no matter how low – is a matter for social legislation, not the courts. … their Lordships were at pains to stress that Article 3 does not prescribe a minimum standard of social support for those in need: it does not require the state to provide a home or a minimum level of financial assistance to all within its care… … The opinions in Limbuela were clear in reinforcing the proposition that Article 3 did not require a member state to provide accommodation for all within its jurisdiction, nor provide a minimum standard of living … and it required more than a state’s passivity for breach (paras 23, 86 and 90).

R (Gezer) v Secretary of State for the Home Department

[2004] EWCA Civ 1730; [2005] HLR 16, 17 December 2004

No breach of ECHR in treatment of claimant who suffered racial attack in dispersed accommodation

Mr Gezer was a Turkish national of Kurdish origin who came to the UK with his family and sought asylum. He was diagnosed as suffering from psychotic depression as a result of having been tortured in Turkey. He claimed asylum support and NASS dispersed him and his family to accommodation on the Toryglen estate in Glasgow, a NASS dispersal area. From their arrival on the estate, the family were subjected to serious ongoing racial abuse and harassment as a result of which Mr Gezer’s health deteriorated. After their ‘deck access’ flat was attacked by a group of men who threatened Mr Gezer’s son with a knife, the police placed the family in emergency accommodation. The incident was treated as a racist attack by the police who issued advice that deck access accommodation was no longer suitable for asylum-seekers because of the lack of security. The family returned to London, where they stayed in overcrowded conditions with relatives. NASS offered the family alternative accommodation in Glasgow which they refused, as a result of which they received subsistence-only support. Mr Gezer applied for judicial review of both the decision to send him and his family to Glasgow and the decision to return them there. He claimed that this infringed their rights under Articles 3 and 8 ECHR. He argued that, as someone with a frail mental state, NASS should have made enquiries to ensure that he would not be exposed to the ill treatment that he and his family suffered. Following receipt of a further medical report NASS withdrew its decision that the family should return to Glasgow. Mr Gezer pursued a claim for damages. Moses J dismissed the application.

The Court of Appeal dismissed his appeal. Where there is a real risk of ill treatment as the hands of non-state agents and the treatment would, in the absence of any protection afforded by the state, involve a breach of Article 3, the state must provide reasonable protection. This was a positive obligation. It was accepted that the treatment of the family was grave enough to fall within Article 3. The question was whether NASS was in breach of its positive obligation. This, in turn, depended on whether NASS owed any duty of enquiry to obtain information regarding conditions on the estate (it was accepted that NASS was not aware of the problems). It was held that Article 3 did not impose such a requirement on NASS. It was only after the knife attack that the police took the view that it was no longer viable for the family to remain on the estate. Before that, NASS was entitled to regard the ordinary measures of police protection as adequate. Once NASS became aware of the problems on the estate, it did not require the family to return to the estate. There was nothing exceptional in Mr Gezer’s health problems that would have led NASS to treat him in a different way from other applicants.

High Court

R (Agolli) v Secretary of State for the Home Department

[2002] EWHC 1250 (Admin)

Policy of not dispersing asylum-seekers where children in school for one year did not apply to claimant who sought to ‘manipulate’ policy by reapplying for support after his children had been in school for over a year

See Housing Law Casebook 4th edition, U10.3.

R (Altun) v Secretary of State for Home Department

[2001] EWHC Admin 296, 28 February 2001

Asylum-seekers must, within reason, accept accommodation in dispersal area

The claimant was a Turkish national of Kurdish origin. He arrived in the UK in January 1993 and claimed asylum. His claim was refused and he exhausted the appeal process. He then made further representations and had an outstanding claim based on his ECHR rights. In August 2000 his wife and three youngest children arrived in the UK. The wife claimed asylum and applied for asylum support for the family. NASS accepted her application and decided to disperse the family to Nottingham. The claimant, who had been living in London for seven and a half years, sought judicial review of the decision.

Scott Baker J dismissed his application. NASS had taken into account and given proper weight to the claimant’s circumstances when making its decision. The decision did not depart from the principle, expounded by the secretary of state, that there should be no interference with a settled life without good reason. There was good reason in the present case. There was a great deal of pressure on space for asylum-seekers in London. The decision involved not just the claimant but also his family who had only recently arrived in the UK. Asylum-seekers do not have an unfettered right to choose where they live. They must, within reason, accept what is on offer if they wish to receive such support as they are entitled to.

R (Blackwood) v Secretary of State for the Home Department

[2003] EWHC 98 Admin; [2003] HLR 44, 21 January 2003

In exceptional circumstances NASS should support claimant in her council flat

The claimant, a 22-year-old Jamaican national, was brought to the UK in 1991 when aged 10. She was raised and educated in London. She obtained a council flat, a NI number and worked. She had a baby, but did not maintain contact with its father. She had a small network of friends and was seeking to re-establish her relationship with her mother, who lived in London. When she applied for a civil service post, immigration checks revealed that her status in the UK had never been regularised. She then applied for indefinite leave to remain in the UK on the basis that her rights under Articles 3 and 8 ECHR would be infringed if she were to be returned to Jamaica. She was, accordingly, treated as an asylum-seeker and provided with NASS support. However, NASS refused to pay the rent on her council flat and said that it would accommodate her outside London in accordance with its dispersal policy. NASS Policy Bulletin 31 provided for dispersal except in exceptional circumstances. NASS considered there were insufficient compelling or compassionate reasons why the claimant should not be dispersed. The claimant applied for judicial review. She obtained a psychologist’s report which stated that her mental health would suffer if she were dispersed. NASS maintained that she should be dispersed.

Collins J held that this was plainly an unusual and exceptional case. On ordinary common-law principles it was difficult to see how anyone could rationally reach the conclusion that the factual matrix did not constitute exceptional circumstances. Article 8 ECHR was clearly engaged because of the adverse effect a dispersal might have on the claimant’s ‘psychological well being’. NASS had failed to recognise that this was a case where dispersal was likely to breach Article 8 and accordingly the decision had to be quashed and the matter reconsidered.

R (Hetoja) v Secretary of State for the Home Department

[2002] EWHC 2146 (Admin); (2002) Times 11 November, 24 October 2002

Accommodation in hostel separate from claimant’s son’s fiancée and her children not in breach of Article 8 ECHR; Article 6 not breached

See Housing Law Casebook 4th edition, U10.6.

R (M) v Secretary of State for the Home Department

[2002] EWHC Admin 1924; November 2002 Legal Action 25

Dispersal to Middlesborough unlawful as no evidence that services could be provided in such a way as to compensate for problems arising from the disruption to services provided in London to applicant’s son, who had suffered from trauma

See Housing Law Casebook 4th edition, U10.7.

R (MG) v Secretary of State

[2015] EWHC 3142 (Admin), 5 November 2015

Secretary of State was not under an obligation to provide accommodation in the same town as the asylum seeker’s son, but was required to provide sufficient funds to enable him to visit his son

MG was a failed asylum seeker. In 2012, he began a relationship with a British Citizen and, in 2013, she gave birth to their child. MG was subsequently imprisoned and his partner and son continued to live in Canterbury. In February 2014, after being released from prison, the First-tier Tribunal determined that MG was entitled to subsistence under Immigration and Asylum Act 1999 s95 after the Secretary of State had accepted a new claim for asylum. In August 2014, this was replaced with full board accommodation at a hotel near Heathrow Airport. Shortly afterwards MG requested that he be provided with accommodation in Kent near to where his son and partner were living as he could not afford to travel to Canterbury to see them. The Secretary of State provided him with accommodation in Portsmouth and £36.62 for his essential living needs. MG contended, in a judicial review, that he could not afford to travel to Canterbury and that the Secretary of State had therefore failed to apply Borders, Citizenship and Immigration Act 2009 s55 and breached Article 8 by not treating the best interests of MG’s child as a primary consideration. The Secretary of State contended that Portsmouth was the closest available accommodation to Canterbury.

The claim was allowed. While the Secretary of State’s contention that no accommodation was available closer to Canterbury justified its decision to provide MG with accommodation in Portsmouth, that did not absolve the Secretary of State of limiting MG’s subsistence to £36.62. The Secretary of State ought to have provided MG with an additional modest sum to enable him to visit his son in Canterbury every fortnight.

R (Thiab) v National Asylum and Support Service

[2002] EWHC 905 (Admin), 18 April 200

Refusal to transfer claimant after racial violence and harassment not unlawful

See Housing Law Casebook 4th edition, U10.8.

R (Wanjugu) v Secretary of State for the Home Department

[2003] EWHC 3116 (Admin)

Policy of not dispersing asylum-seekers receiving counselling from the Medical Foundation did not apply where analogous treatment provided by other organisation

See Housing Law Casebook 4th edition, U10.9.

Localism Act 2011 s1 / Local Government Act 2000 s2

A local authority, in England, has power to do anything that individuals generally may do: Localism Act 2011 s1. This power therefore extends to providing accommodation to someone.

In Wales authorities may still use its ‘well-being’ power which, unlike in England, was not repealed. Local Government Act 2000 s2 provides:

Every local authority in Wales has power to do anything which they consider is likely to achieve any one or more of the following objects–

(a) the promotion or improvement of the economic well-being of their area,

(b) the promotion or improvement of the social well-being of their area, and

(c) the promotion or improvement of the environmental well-being of their area.

Authorities in England and Wales are not able to provide accommodation to persons who are excluded from obtaining support under Children Act 1989, Care Act 2014 or Social Services and Well-being (Wales) Act 2014 unless failure to do so would result in a breach of a person’s rights under the ECHR or their EEA treaty rights.

High Court

R (GS) v Camden LBC

[2016] EWHC 1762 (Admin); [2016] HLR 43; (2016) 19 CCLR 398, 27 July 2016

Authority was under an obligation to provide accommodation under Localism Act 2011 s1 to an applicant who was not entitled, or eligible for, accommodation under Care Act 2014

GS was born in Afghanistan, but became a Swiss national in 2006. She had physical and mental health problems and was wheelchair dependent. Between 1992 and 2011, she was accommodated and supported by the Swiss state. In 2011, she left her accommodation after she had been raped and slept in Zurich airport. In 2013, she came to the United Kingdom and lived in Heathrow airport for six months before being admitted to hospital. After leaving hospital she moved into a hostel and applied to Camden for accommodation under National Assistance Act 1948 s21. Camden found that she was ineligible for assistance and offered her money to return to Switzerland. However, Camden subsequently decided that GS was eligible for assistance after she was assessed as having a persistent delusional disorder and therefore lacked capacity to decide whether to return to Switzerland. Camden continued, save for a period when GS was in Canada and hospitalised, to provide accommodation under section 21 until October 2015 when an assessment was carried out under the Care Act 2014. Camden decided, as a result of that assessment, that GS did not have a need for care and support under the Care Act 2014; Camden were satisfied that while she suffered from a mental disorder this did not prevent her from being able to achieve two or more outcomes as prescribed by the Care and Support (Eligibility Criteria) Regulations 2015 SI No 313. A need for accommodation was not a need for care and support. GS challenged that decision on the grounds that her need for accommodation amounted to care and support within the meaning of the Care Act 2014 and, in any event, that if she were not provided with accommodation this would result in a breach of Article 3. GS argued that neither R(M) v Slough (R (M) v Slough BC) nor R(SL) v Westminster City Council (R (SL) v Westminster CC) should be followed because they concerned a different statute and the words under the National Assistance Act 1948 Act and Children Act 2014 were different. Accordingly, a need for care and support, as opposed to care and attention, could include a need for accommodation.

This was rejected by the High Court; a need for care and support, as under the National Assistance Act 1948, meant more than a need for accommodation. The fact that accommodation could be provided by an authority under Care Act 2014 s8 to meet a need for care and support did not mean that a need accommodation was a need for care and support. Accordingly, GS’s need for accommodation did not give rise to a need for care and support so as to trigger the obligation to provide her with accommodation. As she did not otherwise satisfy the eligibility criteria an obligation under the Care Act 2014 did not arise.

In respect of the alternative argument the High Court held that:

‘Taking into account the entirety of the Claimant’s circumstances including her potential social isolation, physical disabilities, pain, mental health condition and the physical difficulties that she encounters it is my judgement that if she were to become homeless then there would be a breach of Article 3.’

She would become homeless because she could not afford, on the income she received from a Personal Independence Payment, to pay for accommodation. Although the lack of accommodation was not of itself sufficient to engage Article 3, in GS’s case it did so because the lack of accommodation had in the past exacerbated her mental conditions, which included suicidal ideation. This meant that Camden was obliged to provide GS with accommodation in the exercise of its power under Localism Act 2011 s1.

R (J) v Enfield LBC and Secretary of State for Health (Intervener)

[2002] EWHC 432 (Admin); (2002) 5 CCLR 434; [2002] HLR 38; [2002] LGR 390; [2002] 2 FLR 1; (2002) Times 18 April

LGA 2000 s2 could be used to prevent infringement of Article 8 rights

The claimant came to the UK from Ghana in 1995. She overstayed the period permitted on her visa. Her daughter was born in February 2000 and during her ante-natal care the claimant was diagnosed as being HIV positive. In July 2001 she was threatened with homelessness and applied to the council for accommodation for herself and her daughter. She had applied for leave to remain in the UK in July 2000, but that application was not determined. The council refused to provide accommodation under National Assistance Act 1948 s21 on the basis that her need for care and attention resulted solely from her destitution (s21(1A)).

Elias J held that unless accommodation was provided to all of the family, Article 8 would be engaged because the family faced separation. The council conceded that the claimant’s accommodation problems could not justify the child being taken into care and that the conditions in Article 8(2) could not be satisfied. In those circumstances, the statutory safety net would fail the claimant and her convention rights would be infringed. However, the Secretary of State for Health contended that the council had a wide-ranging power under Local Government Act 2000 s2(1) to ‘do anything’ to promote or improve the ‘social well-being’ of their area. By s2(4)(b) that included a power to ‘give financial assistance to any person’. The power could be used to provide financial assistance to the claimant to secure accommodation for herself and her child.

R (MK) v Barking and Dagenham LBC

[2013] EWHC 3486 (Admin), 13 November 2013

A local authority could not provide accommodation under Localism Act 2011 s1 where its object was to circumvent the prohibition on providing accommodation to persons from abroad

K was Nigerian and was in the UK unlawfully. She was over 18. Her aunt and two cousins were being accommodated by Barking and Dagenham under Children Act 1989 in a one-bedroom flat. She began living with them until she was told by a social worker that she must leave the accommodation. When K issued her claim for judicial review she was sleeping on the floor of a church and she claimed that she was destitute. She claimed that her rights under both Article 3 and Article 8 were being breached. K submitted that the local authority had the power to provide her with accommodation under Children Act 1989 s17(6) or alternatively by using its general power of competence under Localism Act 2011 s1.

Her application for judicial review was dismissed. K was not a child; nor was she a former relevant child. The authority therefore did not owe her a duty under Children Act 1989. The local authority’s decision not to accommodate K because that accommodation was not necessary to promote or safeguard the welfare of the two cousins was a reasonable one having regard to the wide discretion the local authority had under section 17(1). Nor was it entitled to accommodate her under Localism Act 2011 s1 as it would have been done with the object of circumventing the prohibition of accommodating people who were unlawfully present in the UK.

Damages for failure to provide accommodation

Court of Appeal

Anufrijeva v Southwark LBC

[2003] EWCA Civ 1406; [2004] QB 1124; [2004] 2 WLR 603; [2004] 1 All ER 833; [2004] 1 FLR 8; [2004] UKHRR 1; [2004] HLR 22; [2004] LGR 184; (2003) 6 CCLR 415; (2003) Times 17 October; 16 October 2003

Delay and maladministration do not infringe Article 8 unless consequences serious; isolated acts unlikely to sufficeTimes 8 November, 25 October 2002

The Anufrijevas were asylum-seekers. They brought proceedings for damages under the Human Rights Act 1998 for breach of Article 8. They claimed that the council had failed to discharge its duty under National Assistance Act 1948 s21 because a property in which they had been housed was unsuitable. The stairs were too steep for the family’s grandmother, who was isolated on the top floor. They claimed that as a result of the defendant local authority’s failure to rehouse them, her quality of life was so poor that prompt action ought to have been taken and that failure by the defendant to act contributed to her physical and mental decline. It was not alleged that the defendant’s action infringed Article 8, but that there was a failure to take positive action that was necessary to ensure that the family’s Article 8 rights were respected. Newman J dismissed the claim.

The Court of Appeal dismissed their appeal. There is a stage at which the dictates of humanity require the state to intervene to prevent any person within its territory suffering dire consequences as a result of deprivation of sustenance. If support is necessary to prevent a person in this country reaching the point of Article 3 degradation, then that support should be provided. If such a basic standard exists, it must require intervention by the state, whether the claimant is an asylum-seeker who has not sought asylum promptly on entry or is a citizen entitled to all the benefits of our system. Article 8 is capable of imposing on a state a positive obligation to provide support (R (Bernard) v Enfield LBC (R (Bernard) v Enfield LBC)). Those obligations are not, however, absolute. There must be some ground for criticising the failure to act – an element of culpability and knowledge that the claimant’s private and family life are at risk. If there is delay, there is no infringement of Article 8 unless substantial prejudice has been caused to the applicant. Maladministration does not infringe Article 8 unless the consequences are serious. Isolated acts of even significant carelessness are unlikely to suffice. At first instance courts dealing with claims for maladministration should adopt a broad brush approach, without a close examination of authorities or a prolonged examination of the facts. Remedies have to be just and appropriate and necessary to afford just satisfaction. Levels of damages awarded in tort, by the CICB and local government ombudsmen might all provide some rough guidance. Courts should look critically at any attempt to recover damages for maladministration under the Human Rights Act 1998 other than in the Administrative Court. Before giving permission to apply for judicial review, the Administrative Court should require the claimant to explain why it is not more appropriate to use any internal complaints procedure. In this case the local authority had made reasonable efforts to meet the requirements of the family. The accommodation provided fell far short of placing the family in the type of conditions that would impose a positive obligation under Article 8 to install them in superior accommodation.

The House of Lords subsequently refused a petition for leave to appeal ([2005] 1 WLR 2809).

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

High Court

R (Bernard) v Enfield LBC

[2002] EWHC 2282 (Admin); [2003] UKHRR 148; (2002) 5 CCLR 577; [2003] HLR 27; [2003] LGR 423 Admin; (2002) Times 8 November, 25 October 2002

Article 8 breached where council’s failure to provide suitable accommodation under section 21 made it virtually impossible for meaningful private and family life; just satisfaction required damages owing to council’s failure to apologise

Mr Bernard was the carer of his wife, who was severely disabled. She had limited mobility and was dependent on an electronic wheelchair. She was doubly incontinent and suffered from diabetes. He also looked after the couple’s six children. After accruing mortgage arrears, the family was forced to move from its fully-adapted house and took a tenancy in an unadapted property. When the tenancy expired, they applied to the defendant local authority as homeless persons. The council provided accommodation for the family in October 1998. In June 2000 the authority found them intentionally homeless (that decision was confirmed on review and Mr Bernard’s appeals to the county court and subsequently the Court of Appeal were finally dismissed in December 2001, see Bernard v Enfield LBC). In the meantime they remained in the property. In September 2000, the social services department undertook a number of assessments of Mrs Bernard’s needs, which indicated that the property was unsuitable since it was not adapted to her needs: she could not use her wheelchair, she could not access the toilet, she spent much of the day in a shower chair in the lounge where she slept, together with Mr Bernard and their two youngest children. The care plan stated that she needed assistance to move to a suitably adapted property. The council accepted that it was under a duty to make arrangements for the provision of suitably adapted accommodation under National Assistance Act 1948 s21(1)(a), but provided no explanation for the failure to comply with that duty or to act on the social services’ recommendation.

Judicial review was granted on 27 March 2002 and the council was ordered to provide the claimants with suitable and adapted accommodation within six months. A claim for damages under Human Rights Act 1998 s8 was adjourned. The order was not complied with until 14 October 2002 when the claimants threatened to apply for an order requiring the council to show cause why its director should not be committed to prison for contempt of court. The council gave no explanation for the delay or failure to respond to correspondence.

Sullivan J held that, although some would describe the conditions in which the claimants were forced to live as degrading, particularly in light of Mrs Bernard’s incontinence, there was no breach of Article 3 ECHR (prohibition of inhuman or degrading treatment). The minimum level of severity threshold had not been crossed. Although not conclusive, the fact that there was no intention to humiliate or debase the claimants was an important consideration. Cases concerned with prisoner’s rights should be treated with caution outside the prison gates because a prisoner was in a uniquely vulnerable position. However, following the assessments in September 2000, the council was under an obligation to take positive steps to enable the claimants and their children to lead as normal a family life as possible (under Article 8). The failure to act showed a singular lack of respect for the claimants’ private and family life. It condemned them to living conditions which made it virtually impossible for them to have any meaningful private and family life. If a public body took steps once a problem had been drawn to its attention, it might be the case that nothing more would be required in order to afford just satisfaction. That was not the case here. Furthermore, the council had not acknowledged its error, provided an explanation or apology for its failure nor indicated that its procedures had been improved. The housing department had threatened to evict the claimant and the council had delayed in complying with the court order. An award of damages was necessary. It was difficult to see why awards should not be comparable to tortious awards. Furthermore, the awards recommended by the local government ombudsman were of great assistance. The award set should not be minimal because that would diminish respect for the policy underlying Human Rights Act 1998. Sullivan J awarded £8,000 to Mrs Bernard and £2,000 to Mr Bernard.

See now: Care Act 2014 and Social Services and Well-being (Wales) Act 2014.

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