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03 JUL 2013

MN and Another v London Borough of Hackney [2013] EWHC 1205 (Admin); (2013) PLLR 085

Community Care - Children Act - Support - In Need

As the child Claimants were not found to be destitute and therefore ‘in need' pursuant section 17 of the Children Act 1989, the Defendant local authority was under no obligation to provide accommodation and support.

10 May 2013

Administrative Court

Leggatt J

(1)        By this claim, the two Claimants (siblings aged 3 and 13) challenged the Defendant local authority's decision to refuse to provide them and their parents with support and accommodation under section 17 of the Children Act 1989.

(2)        The Claimants and their parents are Jamaican nationals who are illegally present in the UK. The Claimants' parents' application for leave to remain had been refused, but no removal directions given.

(3)        From their arrival in the UK until March 2011, the family had lived without assistance from social services. The Claimants' mother approached the Defendant in March 2011, stating that she and her family were to become homeless. The Defendant responded that due to her immigration status she was not entitled to housing assistance, this refusal was reiterated in January 2012, although an assessment was undertaken to establish whether the Claimants were children in need, as set out in section 17 of the Children Act 1989.

(4)        In March 2012, the Defendant received a letter stating that the family were staying with a friend temporarily, but had been asked to leave by 17 March, at which point they would be homeless unless they were provided with accommodation and financial assistance.

(5)        By that point, the Defendant had nearly completed the assessment for the purposes of the Children Act and an assessment of whether refusing the family assistance would breach article 3 or 8 of the ECHR. Each of these assessments eventually concluded that there would be no breach of the Defendant's obligations through the failure to provide support and accommodation.

(6)        On the 19 March 2012, these proceedings were begun and Lloyd-Jones J ordered that the Defendant provide the family with support and suitable temporary accommodation.

(7)        The parties agreed that if the Defendant had lawfully concluded that the family was not destitute, and was therefore not in need pursuant to section 17 of the Children Act 1989, then the grounds on which judicial review were sought failed.

(8)        HELD: The Court noted that the assessments repeatedly made reference to the lack of information as to how the family had been managing and why the assistance by friends had ceased. The assessments did not give a clear answer as to the question of whether the family were, or would become, homeless and destitute. Without information as to why assistance was no longer being provided by friends, the author of the assessments was not willing to accept that this was no longer possible and that the family were therefore destitute.

(9)        The Court stated that until a determination had been made that a child was in need, the local authority's powers to provide services were not engaged. As the assessments did not conclude whether the Claimants were destitute and therefore ‘in need' the Defendant did not have power to provide accommodation and assistance under section 17 of the Children Act.

(10)     The Court found that the steps taken to investigate the Claimants' circumstances had been reasonable, as evidenced by the assessments. The Court would not accept that the decision made by the Defendant was irrational. It was made by a social worker with 16 years' experience, and he was best placed to decide what approach to take.

(11)     The Court thus determined that the Defendant had acted lawfully in declining to accept that the Claimants were children in need as of 16 March 2012. It thus followed that there was no duty upon the Defendant to provide accommodation or support under section 17. The claim thus failed.

(12)     Although not required to do so, the Court also examined the merits of the claim regarding that had the Claimants been found to be children in need, had their ECHR rights been breached by the failure to provide support. The Defendant contended that the family could return to Jamaica with there being no breach of their EHCR rights.

(13)     The Court found that the assessments had failed to consider the impact of severing the Claimants' social and cultural ties to the UK and, as such, had not given proper consideration to the Claimants' rights to respect for their private life. The Court did not make a determination that such an interference could not be justified by reference to other legitimate aims.

(14)     The Court concluded that if the Defendant became satisfied that the family would be destitute without support and accommodation, unless it could conclude that that the interference with the Claimants' article 8 rights was outweighed by other competing claims, it would be both entitled and obliged to provide support and accommodation under section 17 of the Children Act 1989.

(15)     The decision to refuse to provide support and accommodation was therefore lawful. The claim for judicial review was therefore dismissed.

Claim dismissed.

Key Paragraphs

[24] - Issue of destitute determinative.

[37] - Assessments findings.

[41] - No power under section 17.

[44] - Sufficient investigation.

[45] - Not irrational.

[46] - Section 17 conclusion.

[62] - No in need in Jamaica. 

[90] - Failed respect private life.

[106] - Best interests.

[110] - Public sector duty.

[111] - Conclusion summaries.

[120] - Dismissed.

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