The duty a local authority has to children with severe learning
difficulties is only a target duty to children in general under the
Children Act 1989 and not a duty to a particular child. That was
the decision of Mr Justice Scott Baker sitting in the
administrative court on 25 May 2001.
Ms A has three children, two of whom are autistic with severe
learning difficulties. They require constant supervision. The
family home was a poorly maintained 2-bedroom flat which had no
play area. In September 1998 the family were given overriding
priority for a transfer, based on the diagnosis of the children. An
assessment of need under section 17 of the Children Act 1989 (the
1989 act) in May 2000 came to the conclusion that the family needed
to be rehoused in suitable accommodation, with a garden.
The housing and social services departments liased, but no
housing materialised. Another assessment was carried out under the
Carers (Recognition and Services) Act 1995. This assessment looked
at the mother’s ability to care for her children and confirmed the
family’s poor housing conditions. The mother applied for judicial
review of Lambeth’s failure to meet the housing need it had
identified because section 17 gave rise to a specific duty once the
need for a service had been assessed. All parties agreed the
children were disabled, and fulfilled the definition under the
National Assistance Act 1948 (the 1948 act).
The judge decided:
(1) The community care legislation had not been assembled in any
planned way. Each statute contained its own duties and powers,
specific duties, target or general duties, and discretions. Some
provisions overlapped and their interpretation could be
(2) The 1989 act created one statute for private and public law
about children. The true meaning of that act was within it. Caution
is needed when using one piece of legislation to consider the
meaning of another.
(3) Section 17 of the 1989 act clearly gives a local authority a
discretion rather than a duty to provide accommodation in any
individual case. Section 17 (1) imposes a general duty to strive
for identified targets but has no requirement to perform particular
tasks or achieve particular results (unlike section 21 of the 1948
act (which is a safety net that only applies when all else has
failed) which is not comparable to section 17 of the 1989 act and
cases decided under that act and section do not help in the
construction of the 1989 act).
(4) Sections 17(3) and 17(6) of the 1989 act impose a wide power
to provide accommodation for the whole family. Local authorities
are required to make schemes for the allocation of typically scarce
local authority housing. The selection of tenants is for the
housing authority applying the housing legislation.
(5) The duty owed under section 17 of the 1989 act was a target
duty owed to children in general and not open to judicial review.
Section 20 of the 1989 act was different because it imposes a
specific duty in to provide accommodation a child in need in
Since Ms A made her claim under section 17, it failed.
Human Rights Solicitor
Walker Morris Solicitors