Neutral Citation Number: [2020] EWHC 2487 (Admin)
Case No: CO/5058/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 18/09/2020
Before:
MR DARRYL ALLEN QC
(Sitting as a Deputy High Court Judge)
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Between:
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THE QUEEN
(on the application of AA) |
Claimant |
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THE LONDON BOROUGH OF SOUTHWARK |
Defendant |
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Mr Nick Bano (instructed by Morrison Spowart) for the Claimant
Miss Siân Davies (instructed by Southwark Legal Services) for the Defendant
Hearing dates: 9 October 2019
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Judgment Approved
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties’ representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10:30am on 18 September 2020.
Darryl Allen QC:
Anonymity
1. On 18th December 2018, an anonymity order was granted by Mr Justice Murray in favour of the Claimant and her two children [60]
. Insofar as is necessary, I confirm that order remains in place and is to continue. The Claimant, her eldest child and youngest child are to be referred to in these proceedings and any reporting of these proceedings as AA, OA and YA respectively.
Introduction
2. This is an application for judicial review. It arises out of the Claimant’s application for accommodation and support under section 17 of the Children Act 1989. Permission was granted by Ms Heather Williams QC, sitting as a Deputy High Court Judge, limited to two grounds [65]:
i) Ground 1(v) - Alleged failure to re-assess the Claimant’s application after the submission of further information following the original assessment delivered to the Claimant on 21st January 2019
;
ii) Ground 4 - Alleged failure to put matters to the Claimant and/or to make proper inquiries.
3. Permission was refused on the Claimant’s other grounds; no application has been made to renew those grounds.
Background
4. AA is a Nigerian national. She entered the UK unlawfully in 2010. As a result she had no recourse to public funds. In 2012, she returned, briefly, to Nigeria and then re-entered the UK. Since then she has enjoyed periods of employment as has her husband. Her evidence is that she was last employed in 2014.
5. AA has two children, OA and YA. They both attend school in the Lambeth area. Lambeth Council has responsibility for YA under the Children and Families Act 2014 as he has an education and health care plan.
6. On 6th December 2018, the Claimant presented to the Defendant seeking accommodation and support under section 17 of the Children Act 1989. She was asked to return on 11th December 2018. She duly did so and met with the Defendant’s Community Support Unit. She informed them that she had been living with her family in accommodation provided by Mr A, but that she had been told by him that she now had to move out. Mr A is in his 80s. It is said that he found it difficult living with the children, particularly YA who has behavioural problems.
7. The Claimant informed the Defendant that she had been allowed to return to Mr A’s house between 6th and 11th December 2018, but was still required to move out.
8. The Claimant was asked to provide further documentation, which she provided on 12th December 2018. The Defendant told her that it would have to make further inquiries, including a visit to and interview with Mr A.
9. On 13th December 2018, the Claimant’s solicitors sent a pre-action letter requesting accommodation and support under section 17 pending completion of the assessment [128]. That request was refused on the basis that the assessment was close to completion and the Claimant and her children had a place to stay in the interim, Mr A having extended his offer of accommodation [136]. The Defendant also referred to the fact that the Claimant’s bank statements showed that she had sufficient funds [including a Barclaycard Credit Card] to obtain bed and breakfast accommodation for the assessment period if required and if Mr A did not continue his offer of accommodation.
10. On 18th December 2018, Mr Justice Murray directed that the Defendant was to provide interim accommodation and support for the family on the assumption that it was obliged to do so under section 17 of the 1989 Act pending further order [60].
11. On 21st January 2019, the Defendant provided the Claimant with the January 2019 assessment [82]. It concluded that there was “no evidence to show that the family are facing homelessness” [102] and the application was refused on the basis that the Claimant and her husband were able to meet the needs of their children [103].
12. Further representations were received from the Claimant’s solicitors by email dated 23rd January 2019 [138]. Those representations are set out in detail later in this judgment. Suffice to say that the solicitors challenged the accuracy of a number of assertions/conclusions in the January 2019 assessment, requested a fresh assessment and asked for the interim accommodation and support to be continued pending the challenge to the January 2019 assessment.
13. On 6th February 2019, one of the Defendant’s social workers attended Mr A’s home address. There was no response.
14. On 13th March 2019 a new or updated assessment was produced. The conclusion of that assessment was that the Defendant was not satisfied that the Claimant’s children were “in need”. The reasons for that decision were:
i) Mr A had stated that only he and his wife lived at their address - the Defendant was not satisfied that was the Claimant’s most recent address;
ii) the Claimant had used a number of different postal addresses for correspondence but denied having access to those properties;
iii) the Claimant’s bank records showed money coming in from various sources but she had not provided (a) the names of the friends whom she claimed had provided that money, or (b) any information from those who were said to have provided that money to confirm the amounts provided;
iv) failure to provide any explanation for “more than minimum payments to two credit cards”, non-essential taxi journeys and photographic shoots which were recorded in her bank statements;
v) refusal by the Claimant to disclose her monthly outgoings;
vi) failure to disclose the existence of her ISA account.
15. The Claimant issued these proceedings on 18th December 2018. Limited permission to seek judicial review was granted on 9th May 2019.
16. On 7th October 2019, the Claimant and her children were granted to leave to remain in the Country until April 2022, with permission to work and apply for public funds. Those public funds would include access to assistance under the Housing Act 1996 and other welfare benefits. That assistance and those benefits are likely to be significantly more advantageous than support provided pursuant to section 17. The parties and the Court were unaware of that development at the date of the hearing. It was only discovered by the Defendant after the hearing and communicated to the Claimant’s representatives and the Court by email. The parties provided written submissions on the issue of remedy in the light of that development.
Legislation
17. Section 17(1) of the Children Act 1989 provides,
“(1) It shall be the 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 y their families,
by providing a range and level of services appropriate to those children.”
18. The Defendant accepts that, by implication, the section 17(1) duty requires a local authority to take reasonable steps to assess the needs of any child in its area who appears to be in need, and that a child without accommodation is a child in need [see R (S and J) v. London Borough of Haringey [2016] EWHC 2692 (Admin)].
19. The parties agree that the core principles applicable to carrying out a section 17 assessment of a child’s needs and making provision to meet those needs are set out at §13-21 of the judgment of Helen Mountfield QC, sitting as a Deputy High Court Judge, in R (O) v. London Borough of Lambeth [2016] EWHC 937 (Admin). Those principles have been adopted and applied in subsequent cases.
20. That decision confirmed, inter alia:
i) A local authority under a duty to make reasonable enquiry as to whether a child is in need is under a duty to make those enquiries that are reasonably suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances [§16].
ii) Whether a child is or is not “in need” is a question for the judgment and discretion of the local authority [§17].
iii) An applicant should provide as much information as possible to assist the decision-maker to reach a fully informed conclusion [§18].
iv) Where an applicant has apparently been accommodated and living in this country for many years without recourse to public funds but supported by the goodwill and kindness of friends and family, then the local authority “is entitled and indeed rationally ought to enquire why and to what extent those other sources of support have suddenly dried up.” [§19].
v) In the absence of adequate information and explanation, the local authority may reasonably conclude that such a family is not homeless or destitute [§19].
vi) Fairness demands that any concerns are put to the applicant before any adverse inferences are drawn from gaps in the evidence [§20].
vii) Failure to provide information/explanation where the circumstances call for an explanation may be a proper consideration for a local authority to take into account in drawing the conclusion that the applicant is not destitute, however, that does not absolve the local authority of the duty to make proper enquiry [§21].
21. The Court is required to assess the fairness of the process adopted in an individual case, affording appropriate respect to the judgment of social workers and other professionals involved in the assessment process. If the decision adopted is within the range of reasonable decisions open to the local authority, absent some error of law, principle or procedure, it is not for the Court to disagree or substitute its own decision.
22. Section 17 assessments are to be read in a practical way, understanding the context in which they are prepared.
23. I was referred to a number of first instance decisions in which individual judges have determined the lawfulness of the approach adopted by a number of local authorities in differing factual circumstances. They have been of limited assistance given that (i) the parties are agreed as to the relevant legal principles, and (ii) the decisions in each of those cases turn on their particular facts.
The Claimant’s case
24. Ground 1(v) - The Claimant alleges that the Defendant failed to reassess whether the family was in need when further material came to light that suggested that the children were in need.
25. It is the Claimant’s case that the Defendant was required to carry out a reassessment or, at the very least, to make enquiries to decide whether a reassessment was required. She submits that the assessment of 13th March 2019 corrected or resolved in the Claimant’s favour a number of errors in the earlier January 2019 assessment. The Claimant ultimately submits that the 13th March 2019 assessment was not a true reassessment but simply a repeat of the original assessment based upon earlier information which had been superseded. She says that the Defendant was obliged to carry out “a new, open-minded, assessment - an assessment that actually engages with AA’s case and the information that she provided - in order to comply with its statutory duty.” Its failure to do so represents a breach of section 17 of the 1989 Act.
26. Ground 4 - The Claimant alleges that the Defendant misdirected itself in law and/or its decision that the Claimant as not destitute was irrational. The Claimant’s specific challenges under this Ground are
:
i) failing to put matters to the Claimant before drawing adverse inferences from those matters;
ii) disbelieving the Claimant’s explanation for support which had previously been provided but which had ceased;
iii) failing to make proper inquiry with Mr A as to whether the Claimant had been living with him previously and whether he had decided to end that arrangement;
iv) failing to take into account the fact that the Claimant’s bank statement showed that she was in debt and that her debt was rising.
v) the decision was generally irrational in the light of all of the evidence.
27. The Claimant sought an order quashing the Defendant’s section 17 assessment(s), requiring the Defendant to carry out a new assessment and awarding her the costs of the proceedings.
The Defendant’s case
28. Ground 1(v) - The Defendant submits that it is plain that it undertook further inquiries in the light of the information provided by the Claimant’s solicitors in their email dated 23rd January 2019 [138]. It submits that its documentation represents a “running record” and that the additional information was taken into account and the matter was considered afresh in order to produce the assessment of 13th March 2019. The Defendant says that the format of an assessment is a matter for the individual authority and no particular format or approach is mandated. The Defendant further says that there is no support for the suggestion that the Defendant was obliged to disregard its previous inquiries and to conduct an entirely new assessment. The Defendant submits that it “engaged with the new information provided by the Claimant and took the view that the appropriate means of so doing was to use its earlier inquiries as a starting point.” [Defendant Skeleton Argument §24]. It says that approach was within the range of reasonable approaches to adopt for the reassessment.
29. Ground 4 - The Defendant’s case on this ground is that the Claimant had notice of the matters that were being held against her from the January 2019 assessment, that she had an opportunity to provide and did provide a detailed response to those matters by her solicitor’s email dated 23rd January 2019. That response and the information provided by the Claimant were taken into account in the March 2019 reassessment. The Defendant submits “[The Claimant] had notice of the matters upon which the council was not satisfied and the inferences it was minded to draw, clearly set out in the January 2019 assessment document, upon which she made representations on 23 January 2019. The council considered those representations. It altered its finding in light thereof. That is strongly indicative of a procedure which overall was fairly conducted.” [Defendant Skeleton Argument §26-27]. It further submits, “… this was a case in which the drawing of an inference of undisclosed support was within the range of reasonable responses.” [§29].
Discussion
30. Ground 1(v) - The Defendant produced its original assessment which was communicated to the Claimant on 21st January 2019. On 23rd January 2019, the Claimant’s solicitor responded by email stating that the original assessment included “numerous inaccuracies”, which she went on to address. These were:
i) Mr A - The Claimant’s solicitor said that she had spoken to Mr A who said that he had been visited by two people from the Council, he had been asked who was living there and had replied that it was him and his wife. That was correct as at 18th December 2018 as the Claimant and her family had moved out. He was said to be “extremely annoyed” that it was claimed that had said that no one else had been living there. The solicitor confirmed that Mr A was happy to speak to the Defendant again and offered to provide Mr A’s contact details if the Defendant wished to speak to him.
ii) Husband’s phone number - The Claimant’s husband’s phone number had been written down incorrectly by the social worker.
iii) The afternoon phone call of 18th December 2018 - The Claimant had provided the address that she was at when she received the phone call from the social worker on the afternoon of 18th December 2018. This was the house of another parent at school; that she knew her first name but not her surname and did not know her phone number.
iv) Returning to Mr A’s address - The Claimant denied that she had said that she could go back to stay at Mr A’s address: she had been able to go back to collect her belongings, which she did on 18th December 2018, but not to stay.
v) Address for correspondence - The Claimant had not previously changed her address with her sons’ school but had now done so. It was said that the school was fully aware of the Claimant’s situation. She had also changed her address with one of the banks.
vi) Bank accounts - As for money coming into her account, she explained that a friend gave her small amounts of money for allowing her to use her account. She provided a letter from him [“Mr O”]. She also explained that other friends had given her money.
vii) The ISA - She had not mentioned the ISA bank account as there was nothing in the account.
viii) Debt - She said that she moved money between her accounts, which were all overdrawn, to try and reduce interest charges. Her overall debt was rising.
31. The email attached a letter from Mr O, who confirmed that he provided money to the Claimant.
32. The assessment of 13th March 2019 does not refer to the solicitor’s email of 23rd January 2019 at all. It does not record any of that information that was provided in that email. It does not refer to or acknowledge the contents of the letter from Mr O confirming that he had provided money to her in the past. In fact, the March 2019 assessment positively asserts,
“Ms A was asked during the assessment to provide support letters from friends or charities to say the family were supported by them. Ms A did not provide the support letters even though she was given opportunities to provide support letters but failed to do so.”
33. The solicitor’s email of 23rd January 2019 attached and referred to a letter from Mr O confirming that he had provided money to the Claimant. That was either ignored by the Defendant or completely overlooked in the March 2019 assessment.
34. Further, the March 2019 assessment, like the January 2019 assessment, stated,
“Ms A was asked where she was during the telephone call, where she stated she is at her friend’s house in Brixton. Ms A was not willing to disclose the full address and her friend’s contact detail to the team the available support and accommodation is therefore unable to be identified.”
35. In fact, the Claimant had already provided the house number and the street during that phone call [108]. She had also provided her friend’s first name but said she did not know her surname or mobile number [108]. In the email of 23rd January 2019, the solicitor had explained that the “friend” was another parent at school who had invited her in for a cup of tea when the Claimant arrived early to pick up her children from school [138]. She said the Claimant did not know the woman well, which is why she did not know her mobile phone number. None of that explanation is recorded in the March 2019 assessment. If accepted it would mean that the Claimant was unable rather than unwilling to provide the mobile number. She had, however, provided a name and address.
36. The text of the March 2019 assessment is identical to the text of the January 2019 assessment, save for some modest alterations:
i) removal of the suggestion that the Claimant’s husband had an undisclosed mobile phone number [85/108];
ii) addition of the suggestion that there was reason to believe that the Claimant and her husband were still together and had not separated [85/108];
iii) addition of an update dated 6th February 2019, that a further visit had been made to Mr A’s address but nobody was there to speak to [109];
iv) alteration of the text setting out the conclusion on whether the Claimant had been living with Mr A, the original conclusion “This information is conflicting cannot be determine whether Ms A is providing right information to the council [sic].” [101] being changed to “This information is conflicting cannot be determine Ms A actual address [sic].” [124];
v) removal of the conclusion that the Claimant “intentionally did not disclose her husband’s correct telephone number.” [101/124]
37. In my judgment, it was perfectly open to the Defendant to produce a “running record” of its enquiries and to reassess in the light of further evidence received. However, it was essential that if the Defendant conducted a reassessment, as it claims was done in this case, it did so taking into account all relevant information. That must include information provided by the Claimant specifically addressing the issues raised or concerns expressed in the original assessment. The Claimant’s solicitor’s email of 23rd January 2019 plainly did that. It is not referred to at all in the March 2019 reassessment.
38. The points raised and the explanations given in the solicitors email are not mentioned at all. At best, one can deduce that some degree of consideration has been given to the contents of the email as (i) a further visit to Mr A was undertaken, and (ii) the adverse conclusion that the Claimant failed to provide a mobile number for her husband has been removed/corrected. However, none of the other points raised in the email are noted or considered at all.
39. The March 2019 assessment adopts and repeats the adverse finding from the January 2019 assessment that the Claimant failed to provide any supporting letters from friends that they had provided financial support to her [86/101 and 109/124]. That is factually incorrect: the Claimant provided a letter from Mr O which was attached to the email of 23rd January 2019. That was not referred to at all.
40. The same applies to the existence of the ISA account. The March 2019 assessment repeats the original conclusion from the January 2019 assessment that the Claimant had not previously disclosed the existence of the ISA account and had not provided any statements [86/109]. Whilst factually accurate, it fails to acknowledge or address the Claimant’s explanation that she had not disclosed its existence as there was no money in it. It also fails to acknowledge or record the fact that the Claimant’s description of the state of the account was effectively accurate: the Defendant’s own investigations confirm that as at 14th December 2018, there was only £2.48 in the ISA account [75]. It is entirely possible that the Claimant’s explanation for her “failure” to mention the ISA account is true. The March 2019 assessment does not consider the explanation given at all.
41. In my judgment, whilst the Defendant was not required to produce an entirely new document, starting with a blank sheet and re-drafting the entire document, it was required to carry out a fresh assessment taking into account the totality of the evidence. The Claimant’s explanation for matters which had led to adverse inferences and additional information provided in the 23rd January email were critical to that reassessment. The Defendant’s failure to refer to that email, those explanations or that information, married with factual conclusions which are wholly inconsistent with a proper consideration of the contents of that email, lead me to the conclusion that the Defendant did not undertake a proper reassessment with reconsideration of all of the information and evidence before it.
42. The Defendant claims that it “engaged with the new information advanced by the Claimant”. In my judgment, for the reasons given, it did not do so and a proper reassessment was not undertaken.
43. The Claimant succeeds on Ground 1(v).
44. Ground 4 - The Defendant provided the Claimant with the January 2019 assessment. The Claimant had an opportunity to consider, with her solicitors, the contents of that assessment. She was able to provide a response with explanations and further information addressing the points of concern. The Defendant purported to carry out a fresh assessment in the light of that response. For the reasons already given, in my judgment the Defendant failed to carry out a proper reassessment. However, that is because it failed to properly consider the additional information provided by the Claimant, not because it failed to afford her an opportunity to provide that information.
45. The Defendant is not obliged to adopt a particular procedure, for example a “minded to” procedure, or to suggest a face to face meeting at which matters of concern are put to the Clamant. What is required is an opportunity for the Claimant to address important issues which may lead to adverse findings against her. She was given that opportunity when she was able to provide a response to the original assessment.
46. In my judgment the Claimant was given a reasonable and appropriate opportunity to address points of concern and matters were therefore put to her before drawing adverse inferences in the second assessment.
47. There is then the question of the adequacy and reasonableness of the Defendant’s enquiry. I respectfully agree with the conclusion of Helen Mountfield QC, sitting as a Deputy High Court Judge, in R (O), that the duty to make reasonable enquiry “is a duty to make those enquiries which are either suggested by the applicant or which no reasonable authority could fail to undertake in the circumstances.” [§16].
48. Whether the Claimant and her family had been living with Mr A and whether he had in fact terminated that arrangement was a central issue which the Defendant had to decide. If that was the true state of affairs then it was explained why the Claimant had not previously had to rely upon public funds and why she said she was now homeless. If untrue then it was seriously damaging to the Claimant’s credibility and her application. It was essential that that issue was properly investigated.
49. The Claimant’s solicitor’s email of 23rd January 2019 made it clear that (i) the solicitor had spoken to Mr A, (ii) Mr A’s position, reported by the solicitor, was that he was only asked one question about who was living at the address, which he understood referred to who was living there at the date of the visit [18th December 2018], (iii) Mr A was “extremely annoyed” that it was claimed that he had said no one else “had been” living at the address, (iv) Mr A was willing to speak to the Defendant if necessary, (v) Mr A was happy for his phone number to be passed on to the Defendant if necessary.
50. The Defendant’s team obviously thought it was important to clarify Mr A’s position: on 6th February 2019, they made a further visit to address [109]. The purpose of the visit could only have been to obtain further information or clarification from Mr A. Neither was obtained as they were unable to speak to him or anybody else.
51. The Defendant did not conclude the second assessment until 13th March 2019. Over the five week period from 6th February to 13th March 2019, the Defendant made no further attempt to speak to Mr A, by telephone or otherwise. The Claimant’s solicitor had confirmed that Mr A was willing to speak to the Defendant once again and had offered to provide Mr A’s phone number if the Defendant wished to speak to him. The Defendant plainly wanted to speak to him, hence the visit of 6th February 2019. I have been given no explanation for the failure to ask for Mr A’s phone number or the failure/decision not to speak to him by telephone. I can see no reasonable justification for making no attempt to speak to him by telephone in circumstances where it had been confirmed that he would be willing to speak to the Defendant and where it had been confirmed that his telephone number could be provided to the Defendant. Given the importance of Mr A’s evidence and the clear dispute as to what he had previously said to the Defendant, in my judgment it was essential that the Defendant made every reasonable and realistic attempt to speak to him before reaching a final decision. There was more than enough time for the Defendant to do so between 6th February and 13th March. All that was required was a phone call. No further attempt to speak to Mr A was made.
52. In my judgment, the Defendant’s failure to make any attempt to speak to Mr A after the single unsuccessful home visit of 6th February 2019, was a breach of the duty to make reasonable enquiry under section 17.
53. The Claimant succeeds on Ground 4.
Relief
54. In light of my findings the issue of relief arises. Ordinarily, the order would be to quash the Defendant’s section 17 assessment and to order the Defendant to undertake a fresh one. However, the Defendant submits that no relief should be granted in light of the fact that the Claimant and her children have been granted leave to remain and now have access to more advantageous state support than would be provided under section 17.
55. The Claimant’s position is that relief should be granted by way of (i) a declaration that the Defendant’s section 17 assessment was unlawful, and (ii) an order quashing that assessment.
56. I remind myself that the grant of relief in judicial review proceedings is discretionary. I accept the submission of Mr Bano that relief may be withheld where there is a mere procedural flaw, an insignificant error of law, where the defendant has cured the defect or the outcome would have been the same in any event. However, in my judgment none of that applies here. For the reasons given I have found that the Defendant failed to engage with the new information provided by the Claimant. That was not a technical error or a mere error of procedure: it undermines the Defendant’s approach to the March 2019 reassessment. The Defendant failed in its duty to make essential inquiries in relation to one of the critical issues it had to resolve. Once again, in my judgment that is not a mere procedural flaw or insignificant error of law.
57. Further, I note that in the Defendant’s Skeleton Argument and at the hearing there was no suggestion that relief should be refused on the basis that the outcome would have been the same in any event. The only reason that there is now any debate about relief is because of a change to the Claimant’s immigration status which arises as a result of events wholly unconnected to the section 17 assessment or the facts giving rise to this claim.
58. I have found that the Defendant’s section 17 assessment was unlawful. On that basis it should not be allowed to stand. It may be that the findings of that assessment could become significant at a later date, for example in the event that the Claimant had to make some other application for support from the Defendant or elsewhere. If the assessment was allowed to stand and was not quashed then its conclusions could be referred to or relied upon.
59. In all the circumstances I am satisfied that is it is appropriate to grant the following relief:
i) a declaration that the Defendant’s assessment under section 17 of the Children Act 1989 was unlawful;
ii) an order quashing that section 17 assessment.
60. I would ask the parties to agree an order reflecting my conclusions and my finding on the issue of relief. I anticipate that the parties will be able to agree the appropriate order for costs in the light of my findings.
