In this issue we zoom in on a 2018 judicial review in which the High Court found a local authority had failed to safeguard and promote the welfare of children in need, breaching statutory duties under the Children Act 1989 and Children Act 2004. In the same judgment, the High Court concluded a local housing authority had failed to discharge its duty to co-operate with another authority, as required by section 27 of the Children Act 1989. The judgment contains a useful analysis of relevant legislation, including its interpretation by UK courts, and will be of value to anyone supporting children and families in need.
Failure to co-operate leaves family in need stuck between local authority children’s and housing services
This 2018 judicial review was brought by a mother, KS, and her daughter, AM, aged six at the time of the court proceedings. KS acted as a litigation friend for her daughter. KS also has a son, JM, who was 11 years-old at the time.
KS, AM and JM lived together in a first-floor, two-bedroomed council flat in a block of flats. KS was then the sole carer for the two children, and she had physical and mental health difficulties, including anxiety and panic attacks. Both JM and AM were recognised as ‘children in need’ by their local authority. AM has autism, significant sensory issues, behavioural issues, and problems with sleep and self-harming. She also has difficulties with going to the toilet, diet and speech. While AM enjoys running and climbing things, she has been assessed by professionals as having no sense of danger and not comprehending the idea of risk. AM also experiences what has been described as ‘absences’ – periods of time lasting for up to five minutes when she is not responsive. AM’s older brother, JM, has a heart condition. He also acts as a young carer for his mother and sister, helping with tasks such as feeding and changing AM. Due to AM’s sleep problems, JM slept in one room with his mother.
KS applied for alternative housing in October 2016. In December 2016, solicitors wrote to local authority housing and children’s services setting out the family’s health difficulties, AM’s disability and related vulnerabilities, and the unsuitability of their accommodation. It was said that a ground floor flat with an outside play area, appropriate bathing and toilet facilities, and three bedrooms were needed to ensure the welfare of the children. The local authority social worker was of the same view.
The risks to the children were documented in an assessment carried out by the local authority in February 2017. Clear safety risks were raised by the social worker, alongside a concern about the risks to AM increasing as she grew older. The negative impact of the living arrangements on JM’s well-being and education were also recorded, as were pressures on KS as the sole carer for the children. The social worker’s assessment stated unequivocally that the flat was not adequate and did not meet the children’s individual needs, especially AM’s. A request for assistance and appropriate accommodation was made by children’s services to the local housing service, and supporting information was provided in April 2017. In early May 2017, children’s services discontinued its involvement with the family (‘closed the case’) as, in their view, there were no safeguarding concerns in terms of KS’s care of the children.
In July 2017, the family’s situation was assessed by the housing service, which concluded that it was “not so serious or critical as to warrant Band A or Band B priority”. KS was advised to explore “other housing options”. The decision was challenged by KS’s solicitors. In response, the housing authority cited severe shortage of accommodation. The local authority also relied on an opinion of a medical professional who said – without visiting the property or examining AM – that a first-floor property was not ideal but acceptable.
Adaptations to the family’s flat, such as permanently locking windows and balcony doors to keep AM safe, were ruled out following a fire assessment. The housing authority issued two decision letters, dated December 2017 and January 2018, confirming that the family would remain in Band C.
The local authority’s housing allocations policy at the time allowed it to exercise discretion and “award additional priority and approve offers of housing” based on a decision of the housing panel.
Following the housing authority’s refusal, a claim for judicial review was made on KS’s and AM’s behalf.
The matters before the High Court
The High Court was asked to decide whether, in light of the available evidence, the local authority had acted unlawfully and irrationally by failing to develop a plan or address the needs of the family.
Additionally, the High Court was asked to decide whether the local authority had fulfilled its statutory duties under the Children Act 1989 (sections 17 and 27 specifically) and Children Act 2004 (section 11 specifically).
The legal framework
- Duty to co-operate set out in section 27 Children Act 1989
Section 27 of the Children Act 1989 (‘Co-operation between authorities’) states: (1) Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority specifying the action in question. (2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions. (3) The authorities are — (a) any local authority ... (c) any local housing authority (ca) NHS England […] Domestic case law - M and A v London Borough of Islington  EWHC 332 (Admin) (25 February 2016) - clarified the duty expressed in section 27 by setting out the following: - The section 27 duty concerns co-operation between different local authorities, not different departments within the same local authority, co-operating with one another. - However, “within a unitary authority different departments must act in the same way as would be required if section 27 did apply.” (Paragraph 14; emphasis added) The section 27 duty is also referenced in statutory guidance: Working together to safeguard children - paragraph 79: “Where requested to do so by local authority children’s social care, practitioners from other parts of the local authority such as housing and those in health organisations have a duty to co-operate under section 27 of the Children Act 1989 by assisting the local authority in carrying out its children’s social care functions”. [There’s corresponding guidance in relation to local authorities’ duties towards looked after children: Volume 2 Children Act 1989 guidance and regulations - paragraph 4.32: “... Health authorities, local authorities, local housing authorities and other social services departments have a duty to comply with a request from a children’s services department for help in the exercise of their functions.”]
- Arrangements to safeguard and promote the welfare of children
Section 11(2) of the Children Act 2004 states local authorities (and other public bodies) in England: “must make arrangements for ensuring that— (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need”. Section 11(4) requires local authorities to have regard to statutory guidance when discharging their duty under section 11 of the Children Act 2004. In respect of section 11, UK case law holds that: - “…section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case.” (Paragraph 24 of  UKSC 22; emphasis added) - “…Safeguarding is not enough:...[the child’s] welfare has to be actively promoted.” (Paragraph 46 of  UKSC 73; emphasis added) Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children (2018) defines ‘safeguarding and promoting the welfare of children’ broadly as: - Protecting children from maltreatment; - Preventing impairment of children’s mental and physical health or development; - Ensuring that children grow up in circumstances consistent with the provision of safe and effective care; - Taking action to enable all children to have the best outcomes.
- Support for children and families in need
Section 17 of the Children Act 1989 concerns ‘provision of services for children in need, their families and others’. Section 17(1) creates an overarching, two-pronged duty: It shall be the general duty of every local authority [in addition to the other duties…] — (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs. Section 17(4A) places a statutory duty on local authorities to ascertain the child’s wishes and feelings (so far as is reasonably practicable and consistent with the child’s welfare) and give them due consideration (having regard to his age and understanding) before deciding what (if any) services to provide. Section 17(6) states that services provided by a local authority in line with section 17 duties “may include providing accommodation and giving assistance in kind or in cash”. The definition of what constitutes ‘need’ is set out in section 17(10): For the purposes of this Part (of the Children Act 1989) a child shall be taken to be in need if — (a) they are unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision ... of services by a local authority ...; (b) their health or development is likely to be significantly impaired, or further impaired, without the provision ... of such services; or (c) they are disabled, and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom the child has been living.
The High Court’s analysis and decision
The local authority was found to have acted unlawfully by failing to create a plan for the family or take steps to meet the family’s needs, and by failing to comply with the statutory duties set out in section 11 of the Children Act 2004. The housing authority was also found to have acted unlawfully by failing to co-operate with children’s services, as required by section 27 of the Children Act 1989.
The High Court found that it was not sufficient for children’s services to refer the matter to housing and then ‘close the file’:
“The obligation of [children’s services] is an ongoing one, which is underpinned by the statutory duties imposed by section 17 of the Children Act 1989 and section 11 of the Children Act 2004 to safeguard and promote the welfare of a child in need. It is irrational and unlawful … not to have continued with their involvement with the provision of measures to ensure the safety and welfare of [the children]. […] it is not consistent for [children’s services] to be safeguarding and promoting the welfare of a child in need while not addressing the risks to that child”. (Paragraph 47; emphasis added).
The High Court concluded that based on the needs on the family’s, as evidenced by the local authority’s own assessment, not exercising discretion (which the housing authority had the power to do according to its own housing allocations policy) was irrational. The High Court pointed out that the local authority’s reliance on AM’s mother to keep her safe through “constant and never wavering vigilance’ was also irrational and not in line with what would ordinarily be expected of a parent with a child of AM’s age. The High Court concluded that the risks to AM “have not been adequately assessed or dealt with”.
While the local authority argued that it had in fact complied with the section 17 obligation to support children in need by making the request for co-operation to the housing authority, the High Court disagreed saying that failure to “deal with the unaddressed risks” meant the duty continued.
The High Court also remarked on the risks of individual services ‘passing the buck’ and failing to co-operate in an effective, multi-agency fashion:
“[The local authority] were obliged to give proper weight to the findings of [Children and Young People’s Service] and the expressed need that this family needed rehousing. The consequence of not doing so means that the [family] have fallen between [children’s services] and housing rather than the two departments working in co-operation with each other, operating a multi-agency approach”. (Paragraph 49; emphasis added)
The local authority argued that the request from children’s services to the housing department was limited to a reassessment of the family’s housing needs, which it complied with, but the High Court dismissed this argument:
“By simply looking at the family’s situation again and assessing that they remain where they are is not fulfilling the section 27 [Children Act 1989] request and is unlawful. What the housing authority were obliged to do, in light of the section 27 request, was to make a decision based upon the safety risk and the overcrowding issue that the social worker highlights in her assessment. […] There is no evidence provided that a decision to rehouse would unduly prejudice the discharge of the housing duties and the discretionary power contained within the allocation policy establishes that there is a flexibility. The decision … that the [family] remain in Band C, which effectively means that they will not be rehoused, either means that the conclusions of the social worker … were not taken into account or they were taken into account but not given sufficient weight. The housing authority had more than an obligation to reconsider, it had an obligation to rehouse suitably.” (Paragraphs 66-67; emphasis added)
The High Court cancelled the local authority’s decision concerning the family remaining in housing Band C and directed the local authority to reassess the family’s accommodation and other needs and put a plan in place which meets their needs.
You can read the full judgment here: KS & Ors v London Borough of Haringey  EWHC 587 (Admin) (21 March 2018)