Mooney, R (on the application of) v London Borough of Southwark

MR JUSTICE JACKSON: This judgment is in six parts, namely:

This is a claim for judicial review of the London Borough of Southwark's failure so far to provide accommodation which is suitable for the needs of the claimant and her sons. The claim is based principally upon section 21 of the National Assistance Act 1948 ("the 1948 Act"). However, as part of her alternative case, the claimant also places some reliance upon section 17 of the Children Act 1989. In this judgment, I shall refer to the defendant as "the Council". I shall refer to the National Health Service and Community Care Act 1990 as "the 1990 Act".

Under Part VI of the Housing Act 1996, the Council is required to have in place a scheme for the allocation of housing accommodation. The scheme which the Council operated up until 21 September 2005 is contained in a document headed "Allocations policy". I shall refer to this document as "the Housing Allocation Policy". The scheme which the Council has operated since 22 September 2005 is contained in a document entitled "Lettings policy".

Paragraph 3.3.2 of the Housing Allocation Policy provides as follows:

That concludes my introductory remarks. It is now necessary to outline the facts.

The claimant is a single parent, aged 52, and living in Southwark. She has three sons living with her, namely Liam, Conor and Callum. Liam is aged 17. He has just left school and, subject to GCSE results, he plans to start a three-year course at a college in Richmond. Conor and Callum are twins, aged 9, and attend a local primary school.

The claimant is disabled. She suffers from arthritis of the spine, neck and feet. After walking short distances, the claimant experiences pain and breathlessness. She is unable to negotiate stairs. The twins, Conor and Callum, have developmental and emotional problems. According to the claimant's first witness statement, they are now functioning like four year-olds. They both have moderate learning difficulties and behavioural problems. They have little or no sense of danger and need much supervision. Conor has some mental health problems and is incontinent during the night. Callum has sleeping problems.

Let me now turn to accommodation. The family home is Flat 23A, Brook Drive, London, SE11. This is a two-storey maisonette, which is owned by the Council and of which the claimant is sole tenant. There is one downstairs bedroom, which is used by the claimant. There are two bedrooms upstairs, one for Liam and one for the twins. Because of her disability, the claimant has never climbed the stairs of her maisonette and has never been into the two upstairs bedrooms.

In view of the claimant's disability, the present accommodation is most unsuitable, both for the claimant and for her sons. The claimant cannot supervise or care for Callum and Conor when they are in their bedroom. An undue burden of child care has been placed on Liam. Furthermore, because of their behavioural problems, Conor and Callum ought to be sleeping in separate rooms.

During May and June 2005, the social services department of the Council carried out community assessments of the claimant and her family, pursuant to section 47 of the 1990 Act. The assessments were thorough and the findings are set out in four reports, namely an assessment of Kathleen Mooney, a community care plan for Kathleen Mooney, a Children Act assessment of the children and a carer's assessment relating to Liam. These reports made a number of recommendations for alleviating the problems faced by the claimant and her sons. Unsurprisingly, one recommendation was that the twins should have separate bedrooms. Another recommendation was that the family should have new accommodation in which the claimant could access all rooms.

There were two ways in which the recommendations about accommodation could be fulfilled. First, by finding a four-bedroom flat with all rooms on one level; secondly by finding a four-bedroom maisonette in which it is possible to install a lift.

Following completion of the community care assessments, the social services department made a referral of the claimant pursuant to paragraph 3.3.2 of the Housing Allocation Policy, which was then current. The housing needs manager of the Council's housing department accepted that referral. On 12 August 2005, the claimant was registered in band 1 as needing a property with four bedrooms. On 22 September 2005, the Council's new Lettings Policy came into force in place of the former Housing Allocation Policy. The new Lettings Policy had similar provisions for social services priority nominations. The claimant retained her place in band 1.

Under the new Lettings Policy the procedure is that all available properties are advertised by the housing department once a fortnight. These advertisements appear on alternate Thursdays in a glossy magazine called "Southwark Homesearch". They also appear on the Council's website. A deadline is always specified by which bids for the properties advertised must be lodged.

Although the claimant has been in band 1 for almost 11 months, she has not yet obtained a suitable property. There appear, on the evidence, to be four reasons for this. First, a number of other persons with priority needs were also in band 1. They had been registered before 12th August and so took precedence. Secondly, not every four-bedroom dwelling on two levels is capable of being fitted with a lift. Thirdly, the claimant is not willing to accept a dwelling anywhere in the borough. Perfectly understandably, the claimant wishes to live near to her extended family. Other members of the family, particularly the claimant's brother, her eldest son and his partner provide considerable support and assistance. Furthermore, some areas of the borough are unacceptable because they are close to the claimant's former partner and members of his family. The claimant has previously suffered domestic violence at the hands of her former partner. The fourth and final reason for the delay is that, even within these constraints, the claimant has been overly selective in the properties which she has bid for (as her counsel conceded in his closing speech).

As a consequence of all of the above matters, the claimant, despite her priority nomination, has failed to obtain suitable accommodation over a period of some 11 months. Nevertheless, the claimant's position has improved during that period. The claimant is now in fourth place on the list. The three persons above her in the list have not made any bid since September 2005 and seem unlikely to do so in the near future. Thus, for all practical purposes, the claimant is now at the top of the list.

During 2005, there was correspondence between the claimant's solicitors and the Council's legal department concerning the provision of accommodation for the claimant and her family, and the applicability of section 21 of the 1948 Act. On 10 October 2005, the Council's legal department wrote as follows to the claimant's solicitors:

The claimant was dissatisfied with the response sent by the Council's legal department. She was also aggrieved by the Council's continuing failure to provide suitable alternative accommodation for herself and her sons. Accordingly, she commenced the present proceedings.

By a claim form issued on 19 December 2005, the claimant applied for judicial review of the Council's "continuing failure to make provision for her and her family's needs". The principal relief sought by the claimant was formulated as follows in paragraph 27 of her claim form:

The basis of the claimant's claim was and is that the Council has failed to discharge its duty under section 21 of the 1948 Act. Accordingly, this court should make an order compelling such compliance. The claim form also includes an alternative claim for relief, which is formulated as follows at paragraph 32:

On 12 January 2006, the Council filed an acknowledgment of service denying that it was in breach of duty to the claimant either under section 21 of the 1948 Act or otherwise. On 6 March 2006, Black J granted permission to the claimant to proceed with her claim for judicial review.

The evidence which has been filed in this action comprises two witness statements made by the claimant; a witness statement made by Mr Barrell, a housing officer employed by the Council; and a witness statement made by Ms Mthupha, a social worker employed by the Council. There is also a bundle of relevant reports and correspondence.

It appears from Mr Barrell's witness statement that the legal department's letter, dated 10 October 2005, contained an error. As at that date, the claimant (although she had a priority nomination) was not at the top of the waiting list. Nevertheless, since October 2005, others who were ahead of the claimant have been accommodated. Subject to three individuals who appear disinclined to bid for a transfer, the claimant is now for all practical purposes at the top of the waiting list.

This action came on for trial on Tuesday of this week. Mr Daniel Kolinsky represents the claimant. Mr Hilton Harrop-Griffiths represents the Council. The argument at the hearing focused upon section 21 of the 1948 Act and recent authorities on the application of that section. Mr Kolinsky based his case exclusively on section 21. He did not put forward any oral argument in support of the alternative case pleaded in the claim form.

The argument lasted for all of Tuesday. I said that I would consider counsel's submissions and give judgment on Thursday. This I now do.

Section 21 of the 1948 Act provides as follows:

The Secretary of State has given Approvals and Directions under the reference LAC(93)10 Appendix 1. Paragraph 2(1) of those Approvals and Directions reads as follows:

Section 17 of the Children Act 1989 provides:

Section 47 of the 1990 Act provides as follows:

The community care services referred to in section 47(1) include, but certainly are not limited to, services provided under section 21 of the 1948 Act: see section 46(3) of the 1990 Act.

In R v Wigan MBC ex parte Tammadge [1998] 1 CCLR 581, the applicant had four children, three of whom were severely mentally handicapped and had behavioural problems. The applicant's existing home was unsuitable and she applied to the Metropolitan Borough Council for larger accommodation. The social services department declined to meet the cost of providing larger accommodation. The applicant complained to the Social Services Complaints Review Panel. The Panel upheld her complaint and recommended that the Council should investigate the possibility of providing larger accommodation. A multi-disciplinary meeting of all who were concerned with the applicant was convened. Everyone present accepted the need for larger accommodation. At a subsequent meeting, however, attended by senior officers of the housing and social services departments, a different decision was reached, namely that the cost of larger accommodation could not be justified.

In judicial review proceedings, Forbes J held that the Council was in breach of duty under section 21 of the 1948 Act. He made the following order:

In R v Islington London Borough Council, ex parte Batantu (2001) 33 HLR 871, the applicant suffered from severe depression. He had psychotic symptoms, exhibited features of post-traumatic stress disorder, was preoccupied with suicide and had continual intrusive hallucinations. He also suffered pain in his knees, preventing him from using stairs. He lived with his wife (who was also depressed) and their four children, aged 15, 11, 4 and 2 in a two bedroom flat on the 12th floor of a tower block, let to him by the respondent authority. In March 1999, the applicant refused the offer of a transfer to a three-bedroom property out of the area in which he was living.

In January 2000, the applicant's solicitors asked the authority to assess his community care needs. The social services department carried out the assessment, and in a care plan dated 30 March 2000 concluded that his needs -- and those of the family -- would be best met by rehousing them in a larger ground floor property. The plan however proposed no more than that the matter be referred to the housing department. On 29 February, the housing department advised the applicant that he was 175th on the transfer list and that it would be years rather than months before he would be made an offer of accommodation.

The applicant commenced proceedings for judicial review. While those proceedings were pending, the applicant was given a priority rating which moved him up to 19th place on the list. In judicial review proceedings, Henriques J held that the Council was in breach of its duty under section 21 of the 1948 Act, and he made an order requiring compliance in similar terms to the order made in Tammadge.

Two passages in the judgment of Henriques J distil his reasoning. The first is at paragraph 31:

The second passage is at the very end of the judgment:

In R(Wahid) v TowerHamlets LBC [2002] EWCA Civ 287; [2003] HLR 13, the claimant suffered from schizophrenia. He lived with his wife and their eight children in a two bedroom flat owned by the defendant authority. The children were aged between 28 and nine years old. In late 2000, the claimant was admitted to a mental hospital under section 3 of the Mental Health Act 1983. In January 2001, he was discharged from hospital on the basis that he could manage at home with after-care services provided by the authority's social services department under section 117 of the 1983 Act.

The authority's social services department assessed the claimant's needs for community care services under section 47(1) of the 1990 Act. As part of that assessment, the authority had regard to a report prepared by a social worker, which concluded that the claimant needed assistance with liaising with the housing department to secure more suitable accommodation. The claimant's community mental health nurse also prepared a report. He stated that the claimant was mentally stable, but that this stability could only be safely maintained by transferring the claimant to less overcrowded accommodation.

The authority concluded that the claimant did not have a need for care and attention that was not otherwise available to him and that they did not therefore owe him a duty under section 21(1)(a) of the 1948 Act. They considered that the risk to the claimant's mental health caused by his overcrowded living conditions was relatively small. The authority accepted, however, that the claimant's accommodation was overcrowded and unsuitable. The social services department assisted the claimant in liaising with the housing department. Consequently, he was given a medical priority on the authority's housing register. His three oldest sons were given a separate priority for accommodation. Offers of accommodation were made to the claimant and to his sons, but were refused on the ground that they were unsuitable.

In judicial review proceedings, the claimant challenged the Council's decision that no duty was owed to the claimant under section 21 of the 1948 Act. Stanley Burnton J dismissed the claim for judicial review and the Court of Appeal upheld that decision. Pill LJ, giving the first judgment, said this:

Hale LJ, giving the second judgment, said this:

In R(Westminster City Council) v National Asylum and Support Service [2002] UKHL 38; [2002] 1 WLR 2596, Lord Hoffmann (with whom Lord Millett and Lord Rodger agreed) considered and approved the "valuable analysis" of section 21 made by Hale LJ in Wahid: see paragraph 26 of the speech of Lord Hoffmann.

In R(G) v Barnet LBC [2004] 2 AC 208, the House of Lords held that section 17 of the Children Act 1989 conferred a power, but not a duty, upon local authorities to provide accommodation for the families of children in need. At paragraph 90 of his speech, Lord Hope noted the contrast between section 21(1) of the 1948 Act and section 17 of the Children Act 1989.

In R(O) v Haringey LBC [2004] EWCA Civ 535; [2004] HLR 788, the claimant, a citizen of Uganda, had two children aged 3 and 5. She was HIV positive. In 1998 she arrived in the United Kingdom to join her husband who was lawfully in the country. In 2002, she left her husband because of domestic violence. At that time, she was unlawfully in the United Kingdom. She applied for exceptional leave to remain on the ground that her removal to Uganda would violate her rights under Article 3 of the European Convention on Human Rights, because she would be unable to receive the medical treatment there that was necessary to save her life. The claimant applied for assistance to the defendant authority, who accepted a duty to accommodate her under section 21 of the 1948 Act. They refused, however, to assist the children on the ground that they were entitled to asylum support from the Secretary of State.

The claimant claimed judicial review of the authority's decision, seeking a declaration that they were under a duty or had a power to accommodate the children with her under either section 21 of the 1948 Act or the Children Act 1989. The Court of Appeal held (a) that the Council was under a duty to secure accommodation, pursuant to section 21 of the 1948 Act; (b) that the Secretary of State was under a duty to arrange for the children to be supported as part of the claimant's household, pursuant to section 122 of the Immigration and Asylum Act 1999.

The leading judgment was given by Carnwath LJ (with whom the Lord Chief Justice and Rix LJ agreed). At paragraph 20 of his judgment, Carnwath LJ said this:

Later in his judgment, Carnwath LJ discussed further the relationship between section 21 of the 1948 Act and section 17 of the Children Act 1989. At paragraphs 41 to 42, he said this:

That completes my review of the authorities cited by counsel. Collectively these authorities provide a valuable analysis of section 21 of the 1948 Act and its interaction with other welfare statutes. With the benefit of this analysis, I must now turn to the issues in the present case.

This question has emerged as the central issue in the case. The assessments completed by the Council's social services department in June 2005 undoubtedly identified a need for more suitable accommodation, both for the claimant and for her children. Mr Kolinsky submits that when these assessments are analysed they amount to acceptance by the Council of a need which triggered section 21(1) of the 1948 Act. Mr Harrop-Griffiths submits that they do not have that effect.

Having read and re-read the assessment reports, with the guidance given by the authorities well in mind, I am satisfied that Mr Harrop-Griffiths is right on this issue. I reach this conclusion for six reasons.

(i) There is a substantial gap between establishing a need for housing and triggering a duty under section 21(1) of the 1948 Act. The one does not automatically follow from the other: see the analysis of section 21(1) by Hale LJ in Wahid. This analysis has additional authority because of the subsequent approval expressed by the House of Lords in Westminster City Council and by the Court of Appeal in O.

(ii) The needs of the children in this case, as revealed by the various assessments, are real and obvious. Nevertheless, the needs of children cannot trigger any duty under section 21 of the 1948 Act: see the judgment of Carnwath LJ in O.

(iii) The assessments made by the social services department are detailed and thorough. They reveal a number of needs and suggest how they may be met. In the table on page 19 of the assessment for the claimant, there are four headings for each category of need, namely: critical, significant, moderate and low. The claimant's need for better accommodation was assessed as "significant". In other words, that was put in the second category down on a scale of one to four.

(iv) Nowhere in the various assessments is there any suggestion that the claimant has a need for care and attention by reason of her disability and that such care and attention is not available to her otherwise than by the provision of accommodation under section 21.

(v) On the contrary, the assessments arrive at a different conclusion. The assessments conclude that the proper course is for the social services department to provide additional support for the family, and also to make a priority housing nomination under the Council's housing allocation policy. Such a nomination would enable the claimant to access suitable accommodation under Part VI of the Housing Act 1996. In taking this course, the social services department was acting in a manner envisaged by section 47(3) of the 1990 Act (although in this instance both the social services department and the housing department were part of the same Council).

(vi) The fact that the provision of suitable accommodation can be achieved under the Housing Act 1996 brings into play section 21(8) of the 1948 Act. That subsection prevents section 21(1) from imposing an obligation upon the Council in the circumstances of this case.

Although I do not rely upon this as one of my six reasons, the letter from the Council's legal department, dated 10 October 2005, should also be noted. This letter records the decision of the social services department that section 21 had not been triggered.

The next question which I have to consider is this: was the Council being reasonable and rational in deciding that the claimant did not have a need triggering section 21? As Pill LJ and Hale LJ pointed out in Wahid, this is a decision for the local authority and not the court. The court will not interfere unless the Council's decision was irrational or otherwise flawed. In my view, there was nothing irrational or otherwise unlawful in the Council's decision. The Council was perfectly entitled to take the view that the need for better accommodation could be met by means of a priority nomination. Indeed, as a result of that nomination, I have little doubt that if the claimant had felt able to accept accommodation anywhere in the borough, she and her sons would by now be accommodated in a flat or maisonette adapted to her needs.

I was initially attracted by Mr Kolinsky's argument that the present case is similar to Tammadge and Batantu, and that, accordingly, this court should make a mandatory order similar to the orders made in those two cases. On closer analysis, however, and for the reasons set out above, I have come to the conclusion that both Tammadge and Batantu should be distinguished.

In reaching the above conclusions, I do not underestimate the scale of the problems faced by the claimant and her family. The claimant suffers from a grave disability. Her younger sons, Conor and Callum, have serious behavioural and emotional problems. A heavy burden rests on the 17 year-old son, Liam, who has cared for his younger brothers and done many household chores through his teenage years. I also understand the claimant's wish to live near to her extended family, in particular her brother and her eldest son. If the claimant lived further from her relatives, the claimant would need and would receive additional support from the social services department.

Nothing which I have said in this judgment is intended to be critical of the claimant or to belittle the problems of the claimant and her family. Sadly, most of these problems will continue wherever she lives. Nevertheless, I am quite satisfied that, as the law now stands, the Council has not come under a duty to the claimant, pursuant to section 21(1) of the 1948 Act.

It follows from the foregoing analysis that the Council is not in breach of its duty under section 21(1) of the 1948 Act. The answer to the question posed in Part 5 of this judgment is "no".

It follows from Part 5 of this judgment that the claimant fails in her primary case, which is based upon the existence of a duty under section 21 of the 1948 Act.

The claimant's alternative case is based upon section 21 of the 1948 Act and/or section 17 of the Children Act 1989. The claimant seeks an order on the basis of these provisions that the Council do "assess the period of time which the claimant and her family can safely and reasonably be required to wait for re-housing and to make provision for them within this period": see paragraph 32 of the claim form, which is substantially repeated in paragraph 58 of Mr Kolinsky's skeleton argument.

The first limb of this alternative case is based upon section 21 of the 1948 Act and therefore cannot succeed. The second limb of the alternative case is based upon section 17 of the Children Act 1989. That provision cannot be relied upon as imposing a positive duty on the Council to re-house the whole family: see the reasoning of the House of Lords in R(G) v Barnet LBC [2004] 2 AC 208. It is no doubt for this reason that Mr Kolinsky, very sensibly, did not press the claimant's alternative case in oral argument.

Let me now draw the threads together. The claimant and her sons have genuine and continuing needs, which it is the duty of the Council to address. The claimant's lack of success in this litigation does not alter that situation one iota. Nevertheless, the Council's failure to provide better accommodation for the claimant and her sons over the last year does not constitute a breach of any duties owed under section 21 of the 1948 Act or section 17 of the Children Act 1989. The claimant is not entitled to a mandatory order enforcing those statutory duties.

I thank both counsel for their excellent skeleton arguments and oral submissions. The claimant's claim is dismissed.