In R (on the application of J) v Enfield LBC (4 March 2002) the
claimant was ill with HIV and had a child to support. She was from
abroad and not entitled to housing from the local authority. The
council could not provide her and her child with accommodation
under section 17 of the Children Act 1989 because of the case of A
v LB of Lambeth (5 November 2001)
The claimant sought to clarify whether the exclusion of
accommodation from section 17 extended to exclusion of the
provision of cash to assist with accommodation (“cash” is
specifically mentioned in section 17(6)). Mr Justice Elias held
that it did, and in that case it was likely that the claimant’s
European Convention of Human Rights, article 8 rights (to respect
for family life) would be breached as the only solution for the
council would be to provide accommodation to the child alone.
However, the secretary of state for health intervened to argue
that accommodation and/or cash to children and parents in this
situation could be provided under the welfare provisions in section
2 of the Local Government Act 2000, which enables a local authority
to do anything which they consider is likely to achieve the
promotion or improvement of the economic or social well-being of
their area. The judge agreed that this was the case and therefore
questions of incompatibility of the legislative framework did not
fall to be decided.
Comment: Although councils have powers to do almost anything
under section 2 LGA 2000, the functions are only powers and a
person cannot insist on provision (unless their human rights would
otherwise be breached). Guidance as to how the section should be
used may come in the case of Walker (see below).
In Walker v Lambeth LBC (8 March 2002) the court of appeal
considered the situation of an intentionally homeless family (and
therefore ineligible for housing assistance from the council) with
children who, nonetheless, were seeking assistance with
accommodation from the council.
The claimant was informed by the council that it was unable to
assist the family under s.17 of the Children Act 1989 because of
the case of A v Lambeth LBC (which states that accommodation cannot
be provided under that section). Questions were raised about the
manner in which the claimant’s case was considered by the council,
but the council replied that there was little it could do after
The court decided that there was an argument that the council
should reconsider the case, but that guidance was required from the
court as to how it should approach the matter in the light of A and
in the light of the provisions of section 2 of the Local Government
Act 2000, which enables a local authority to do anything which they
consider is likely to achieve the promotion or improvement of the
economic or social wellbeing of their area.
In the event the court of appeal reserved the full hearing of
the case to itself, and it will be heard in the near future.
Comment: It will be interesting to see what guidelines the court
of appeal feels able to set down in the light of the A case
presently pending in the House of Lords, and the decision in the
case of J (see above).
Doughty Street Chambers