Sep 2024 – Child in need: s17 Children Act 1989 (High Court judgment)

High Court quashes local authority assessment of siblings’ needs and orders fresh section 17 Children Act 1989 assessment

Please note: The summary below focuses exclusively on the analysis by the High Court of the second ground of the judicial review, i.e., failure by the local authority to conduct a lawful needs assessment of two children as required by section 17 Children Act 1989 and connected decision-making about provision of accommodation to meet the children’s needs. This summary does not cover the first ground of the judicial review concerning failure to secure suitable accommodation for the family and breach of duties under the Housing Act 1996 (please refer to paragraphs 19-111 and 143-145 of to the judgment).

Background

This judicial review concerns a family of two children (whose ages are not mentioned in the judgment) and two adults. The older girl “suffers from mental health problems, originating from trauma arising from sexual abuse”. The younger girl “has diagnoses of physical illness (postural sclerosis), and mental health illness (sensory processing disorder)”. During the period relevant to the court proceedings, she had an education health and care plan (EHCP). The girls’ mother’s partner, who’s lived with the family for 12 years, “suffers from anxiety, depression, suicidal ideation, and bi-polar disorder”.

In February 2023, the family were evicted from their privately rented accommodation due to rent arrears. Following an application by the girls’ mother to the local authority for assistance as a homeless person, the local authority confirmed that the family were eligible for assistance under the Housing Act 1996. Temporary accommodation in a bed and breakfast was arranged while the family’s circumstances were being assessed. This temporary accommodation was described by the local authority as a furnished “room in a hostel” and not self-contained, with personal washing facilities being shared by “more than one household”. This offer was refused by the girls’ mother and the family moved in with the girls’ grandparents where the children were staying in the main house and their mother and her partner in the garage next to the house.

In a letter to the local authority, the girls’ mother described the bed and breakfast accommodation as “completely unsuitable for the family’s needs”, stating that both the manager at the accommodation and the children’s child and adolescent mental health services (CAMHS) nurse agreed it was not suitable. The reasons it was not suitable were: the girls would have to share one room with their mother and her partner – this was significant because the older sister had experienced sexual abuse by her father; the family would have to share the communal areas in the accommodation with other families which was significant because of the younger sister’s needs (she “has sensory processing disorder, severe social anxiety and will not speak to people she does not know”); delay in providing suitable support to the family would lead to a deterioration of the younger sister’s mental health; the mother’s partner suffers from severe depression and anxiety and, after viewing the accommodation, he became “very withdrawn and anxious”; the accommodation does not allow dogs and the family have a support dog for the children’s “social and mental health issues”.

In early March 2023, the girls’ mother was notified by the council that she was indeed eligible for support, homeless and in priority need but that by failing to pay rent she had made herself intentionally homeless and, therefore, the local authority duty to provide accommodation to the family ceased.

In mid-July 2023, the girls’ mother wrote to the council claiming ongoing breaches of both the Housing Act 1996 and the Children Act 1989 – specially section 17.

In early August 2023, the local authority notified the mother of the outcome of an assessment of the children’s and the family’s needs under section 17 Children Act 1989 (see ‘High Court’s analysis for details).

Judicial review

In the application for judicial review of the local authority’s decision, the mother (claimant in the judicial review) raised two separate grounds:

• Failure to secure suitable accommodation in breach of Housing Act 1996 duties [this is not covered in this summary – please see paras 19-111 for the legal analysis); and
• Failure to conduct a lawful assessment of the children’s needs as required by section 17 Children Act 1989 (see lower down for analysis).

The legal framework

Section 17 Children Act 1989: ‘Provision of services for children in need, their families and others’)

Subsection 1 sets out the general duty placed on local authorities (emphasis added):

(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.

Subsection (2) connects section 17 with Schedule 2 to the 1989 Act which contains a range of important supplementary provisions: 

(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2.

Subsection (3) gives power to local authorities to provide section 17 services for the family as a whole or for individual member/s of the family if that would safeguard and promote the welfare of the child who is in need (emphasis added):  

(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child’s welfare.

Subsection (6) gives power to local authorities to provide accommodation as part of section 17 assistance: 

(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or . . . in cash.

Subsection (10) sets out the definition of a ‘child in need’ and ‘family’ for the purposes of Part III of the 1989 Act (‘Support for children and families provided by local authorities in England’) (emphasis added):

(10) For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
and “family”, in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom he has been living.

Finally, subsection (11) defines the meaning of ‘disability’ (for the purposes of Part III), ‘development’ and ‘health’:

(11) For the purposes of this Part, a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity or such other disability as may be prescribed; and in this Part—
“development” means physical, intellectual, emotional, social or behavioural development; and
“health” means physical or mental health.

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While there is no reference in the judgment to subsection (4A), it’s crucial that all advocates are aware of this provision as it relates to children’s wishes and feelings in the context of section 17 duties (emphasis added): 

(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—
(a) ascertain the child’s wishes and feelings regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

Relevant case law 

Summarising W, R (on the application of) v. London Borough of Barnet [2003] UKHL 57 (23 October 2003), the High Court recalled the analysis by the House of Lords (predecessor to the Supreme Court) of section 17 Children Act 1989 duties (emphasis added): 

a) A child who is without accommodation is a child in need.
b) Local authorities are under a duty to assess the needs of any child within their area who appears to be in need. The adequacy of assessment may be challengeable on the usual public law grounds.
c) The duty to safeguard and promote welfare under section 17 [Children Act 1989] does not impose any enforceable duty to meet the unmet needs of any particular child, even where those needs have been identified on assessment. Rather it confers a power to provide assistance in any particular case, the refusal to exercise which may be challengeable on the usual judicial review grounds…

[In light of the above, and relying on other domestic case law, the High Court set out the role of the courts as follows (para 117 of the judgment): 
What services should be provided under section 17 will thus be a matter for the local authority; the Court's function is limited to reviewing the legality of what the local authority may decide and require it to reconsider if what it has determined to do, or not do, was unlawful - it is not for the Court to determine or substitute its judgement for that of the local authority as to what may be the appropriate service to be provided under section 17 …  More specifically, appropriate respect must be given to the judgements reached under section 17 by social workers, often making difficult decisions in financially straightened circumstances, whilst not losing sight of the Court's duty to scrutinise those decisions with care ….]

Summarising Stewart, R (on the application of) v London Borough of Wandsworth & Ors [2001] EWHC 709 (Admin) (17 September 2001), the High Court, in paragraph 118 of its judgment, recalled the duty to assess needs under section 17 Children Act 1989 (emphasis added): 

i) A duty to assess under the "general duty" is triggered by the physical presence of a child in need in a local authority's area. No more is needed.
ii) It follows that more than one local authority may be the subject of the duty to assess (in Stewart the child was living in one London Borough and going to school in a second).
iii) Where more than one authority is under such a duty there is no reason for more than one authority to assess and "there is a manifest case for co-operation under s27 of the Children Act and a sharing of the burden by the authorities". 
iv) The duty is to assess the needs of the child which includes situations in which the child is unlikely to maintain a reasonable standard of health or development without the provision of services by "a" local authority; "The provision is not restricted to services that would be provided by the authority making the assessment ".

Statutory guidance 

Working together to safeguard children: A guide to multi-agency working to help, protect and promote the welfare of children (updated 2023) “applies to all children up to the age of 18 years whether living with their families, in state care, or living independently” (see para 5, page 9) and must be complied with by authorities unless exceptional circumstances arise (page 9; R v Islington LBC ex p Rixon (1997) 1 CCLR 119).

The High Court’s analysis of the lawfulness of the section 17 assessment

The purpose of the August 2023 section 17 assessment, which was said to be an update on an earlier, April 2023 assessment, was “to ascertain whether there are any additional needs to reconsider following [threat of judicial review] proceedings”. The assessment identified that a child in need plan had been previously put in place for both girls but “interventions were stepped back in October 2021”. The assessment concluded: “There are no safeguarding concerns. The only concern is the family’s housing issues. We therefore recommend for the family to move to a temporary accommodation: 3-bedroom accommodation in Manchester for 28 days in order [to allow] the family [time to] obtain private rented accommodation”. The local authority was “willing to pay the deposit and one month’s rent”. The assessment further concluded: “Though there is concern for [the daughters] regarding their health issues, services to deal with this can be accessed from varying health services across the country”. A review by a manager within the assessment report concluded (among other things): “I am aware that a temporary accommodation has been identified in Manchester which I hope [the claimant] will consider whilst searching for her private rented property. As it stands, there remains no role for social care, and I therefore agree to no further action to be taken”.

The claimant’s lawyer challenged the lawfulness of the girls’ section 17 needs assessment raising a number concerns.

• Were the children ‘in need’?

The claimant’s lawyer argued: failure to identify whether the children are ‘in need’; failure to identify the children as disabled and therefore ‘in need’; and failure to identify that the children were statutorily homeless and therefore ‘in need’.

The High Court stated:

“[…] Both of the claimant’s children were clearly, at the relevant time, ‘children in need’ within the meaning ascribed to that term by the 1989 Act. The Assessment is [full of] references to “wellbeing concerns” for the children, and clearly identifies the children’s mental health issues and how those issues manifest. The assessment also identifies, on multiple occasions, that the younger child has “disabilities” … [these being] mental and physical health/disability concerns, a learning disability, and concerns [about the child’s safety and wellbeing]. Scrutiny of the assessment should focus on the substance and the reasons given, not on the particular words used or labels ascribed or not ascribed. On my reading of the assessment, it cannot be said that it fails to identify the children as being ‘children in need.’ Indeed, it seems to me to be axiomatic that there was such an acceptance by the assessing social worker, given that the outcome of the assessment was a recommendation that the family move to temporary 3-bedroom accommodation … This offer was made to meet the concern regarding the “family’s housing issues”. It is common ground that accommodation can be provided under section 17 of the 1989 Act. It has not been suggested that the provision of this accommodation … was made pursuant to any duty under [the Housing Act 1996], or indeed any other power or duty other than the general duty to children in need under section 17 of [the Children Act 1989]”. (Paragraphs 129-130; emphasis added)

• Were the children’s educational needs duly considered as part of the assessment?

The claimants lawyer argued: failure to identify that the younger sister was not receiving any formal education and that her needs meant that without the provision for her of services [under section 17 Children Act 1989] by the local authority she was unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of development, meaning she was in fact ‘in need’; failure by the local authority to explain how the temporary accommodation offered to the family could rationally be considered suitable in light of the children’s educational needs.

Considering the relevance of the younger sister’s EHCP, the High Court concluded:

“Whilst I accept that the EHCP is the primary document that deals with a child’s educational needs, that does not render those needs, and how they are to be met, an irrelevant consideration in a section 17 assessment. Quite the contrary is the case, educational needs are part of the overall circumstances that the assessment should consider. It is also prudent to observe that … the EHCP from February 2023 … identifies that the EHCP outcomes were not being met at that time. In my conclusion … the assessment does clearly identify the relevant circumstances of the youngest child’s education and the concerns arising therefrom, and the author of the report specifically refers, on multiple occasions, to the fact that the youngest child … [is home schooled with the help of weekly visits from a tutor]”. (Paragraphs 132-133; emphasis added)

Stressing that a referral had been made by the younger sister’s school for ‘an education plan’ in June 2023 and a report from that was awaited, the High Court found that “it was open to the author of the [section 17 assessment report] to find that there were no concerns as to whether the education needs of the youngest child were being met” (paragraph 135).

However, the assessment was found to have failed to explore the significance of the younger child having a tutor, or the need for a tutor in the new accommodation:

“[…] I conclude that the analysis of whether to offer accommodation in Manchester for 28 days as a response to ‘concerns’ regarding the children, is flawed for failure to take lawful account of the youngest child’s education needs”. (Paragraphs 139; emphasis added)

• Was the suitability of the temporary accommodation duly considered as part of the assessment?

The claimant’s lawyer argued failure to investigate and evidence the suitability of the temporary accommodation offered to the family.

The High Court dismissed this part of the challenge concluding that the needs assessment “carefully identifies the area of concern for the children regarding the accommodation with their grandparents and, moving to a three-bedroom property undoubtedly addresses the concerns that were identified. The size of the property also addresses the concerns raised by the claimant on behalf of the children…”

The High Court’s decision and relief (redress)

The August 2023 needs assessment of the girls’ needs was quashed, and the local authority was ordered to undertake a new assessment within specified timescales.