News

R (on the application of A) v London Borough of Lambeth.

People may recall an earlier mention of this case when the judgement of the high court was given in May this year - see legal update dated 4 June - (autistic children in need assessed, pursuant to section 17 of the Children Act 1989, as needing more suitable housing with their mother; local authority claim there is no duty (only a power, unenforceable by the family) to provide such housing). The court of appeal heard the claimant's appeal and gave judgement.

In the appeal the court of appeal confirmed that even where there was an assessed need for accommodation services for a child in need pursuant to section 17 of he Children Act 1989, the local authority was under no specific duty to provide services to meet that need.

The court rejected the argument that section 17 was a parallel duty to that for adults to be found in section 21 of the National Assistance Act 1948 (where there is a specific duty to provide accommodation to adults in need assessed as requiring accommodation). The court held that section 17 is a general, unenforceable duty, whereas section 21 is a duty which crystallised once there was an assessment of need (ie the assessed need must be met).

The court also rejected the argument that such a situation discriminated against children and therefore was in breach of article 14 of the European convention on human rights (no discrimination between various groups). The court held that section 20 of the Children Act 1948 (which allows for children alone (rather than children with their parents) to be accommodated), was the true equivalent of section 21.

The majority of the court went one step further and said that because of the provision in section 20 of the Children Act (and the various housing duties in the Housing Act 1996) provision of accommodation was not something which came within section 17 at all (Laws LJ however felt that the better view was that "assistance in kind" mentioned in section 17(6) could include accommodation (which, by virtue of section 17(3) can also be provided to the family of a child in need)).

Permission to appeal to the House of Lords was refused on the basis that the house should decide for itself whether to hear the case. The application is being made to the House of Lords.

Comment: Even Lambeth did not contend for an interpretation of section 17 which meant that accommodation did not fall within its ambit. The jurisprudence accepting that accommodation can be provided under this section, or the equivalent in previous children acts, goes back 20 years. It is arguable at least that the court was wrong to find that there was no discrimination for the purposes of article 14 ECHR: for example, the case of Batantu (also referred to in this series) shows that accommodation can be provided for an adult in need and his family pursuant to section 21 NAA (duty to provide mentally ill man with accommodation with his four children), whereas in this case (no duty to provide autistic children in need with accommodation with mother, (although this is what they have been assessed as needing)).

The affect of the judgement if it stands may be devastating not only for families such as the one in this case (where disabled children have been consigned to live in unsuitable accommodation for the foreseeable future), but also for families with children where their parents have been found to be intentionally homeless and therefore a very limited housing duty is owed to them.

The Observer newspaper ran an article on 4 November 2001 in which it was noted that many councils are using the first instance judgement (which the court of appeal upheld) to refuse to provide accommodation to such families on the basis that no duty is owed. The only function these councils are prepared to exercise is to provide accommodation for children alone under section 20 of the Children Act (that is, of course, to take them into care).

Stephen Cragg,

Doughty Street Chambers