AT & Ors, R (on the application of) v London Borough of Islington

This is a challenge to the way in which the London Borough of Islington has addressed its duties in relation to two broad matters, children’s services and housing.

The First Claimant AT and her husband, GH, have two sons. AG is aged 5 and has been diagnosed with an autistic spectrum disorder. HG is aged 2 and has Down’s syndrome. They live in a one bedroom flat on the second floor of a block without a lift. The flat suffers from damp penetration and mice infestation. On Christmas Eve 2012 AT fell and broke her ankle. Life is obviously extremely difficult for them.

As in so many cases there have been continuous developments since AT first instructed solicitors in July 2012. In relation to children’s services there was an assessment by the Defendant in August 2012 which concluded that neither child was a “child in need”. That changed when a further assessment was carried out in November 2012, but the assessment was not accepted as sufficient or satisfactory. Since these proceedings were started there has been a further assessment, which was served on 15 January 2013.

In relation to housing, at 9 October 2012 the Claimant AT and her husband HG were informed that they had 225 housing points. On 14 December 2012 that was increased to 300. Since the issue of these proceedings the total has been raised on three occasions: on 21 December 2012 to 350; on 3 January 2013 to 406; and on 8 January to 446 (although it took until 21 January for this figure to appear on the electronic system).

It has been agreed that in this urgent hearing I should only look at whether the Defendant is still in breach of its duties under the Children Acts 1989 and 2004, so that the court should intervene.

For reasons which appear in this judgment I have concluded that there is no basis for such intervention. Since the issue has been fully argued I am content formally to grant permission, but find against the Claimants on the substance of the application.

The Claim Form was issued on 18 December 2012. It was accompanied by a Statement of Grounds running to 20 pages, with a 4 page addendum. It raised the following issues:

Children Acts Issues

Failing to comply with the duty under section 17 of the Children Act 1989.

Failing to comply with the duty under section 11 of the Children Act 2004.

Housing Issues

Failure to publish details of how social services nominations are made and/or how welfare points are awarded.

Failure to determine the First Claimant’s application for housing under Part 6 of the Housing Act 1996 lawfully in accordance with the published scheme.

Failure to determine the First Claimant’s application for housing under Part 7 of the Housing Act 1996, in breach of section 184 of that Act.

Damages under section 6 of the Human Rights Act 1998

The Claimants sought final relief in a number of forms:

Declaratory relief that the Defendant has breached its duties under the Children Acts 1989 and 2004, the Housing Act 1996, and section 6 of the Human Rights Act 1998.

Mandatory relief requiring the Defendant to prepare and serve lawful assessments of AG’s and HG’s needs and care plans.

Mandatory relief requiring the Defendant to publish or provide details of how welfare points are awarded, and the operation, remit and powers of the Joint Housing Panel.

Mandatory relief requiring the Defendant forthwith to comply with its duty under section 184 of the Housing Act 1996 and provide a written decision regarding AT’s homelessness application.

Mandatory relief requiring the Defendant properly to consider AT’s housing application and to provide a reasoned decision.

Damages for breach of Article 8 rights

Costs

Such other relief as the Court sees fit.

On 18 December 2012 Nicola Davies J considered the application on an urgent basis and made an order for expedition, with a rolled-up hearing to take place by 25 January 2013.

On 2 January 2013 the Defendant filed an Acknowledgment of Service, together with Detailed Grounds of Defence running to 28 pages. The Claimants’ allegations were denied in full.

Just prior to the hearing before me there were attempts to agree to vacate the hearing on terms, as the award of 446 housing points meant that the family was very likely to be re-housed almost immediately. No such agreement was reached, and by the morning of the hearing the Claimants had not been re-housed. Indeed there were concerns that they were in a less advantageous position than had been thought because of other factors in the Defendant’s housing scheme which had only just come to light.

Whether or not there is anything in these concerns, it was agreed that the Housing Issues could not be litigated at this hearing. It was also agreed that the historic complaints about the Children Acts Issues were not suitable for an urgent hearing. Accordingly I was invited to hear and decide the complaint that the Defendant is still in breach of its Children Acts duties, and to make any appropriate orders in relation to that.

Section 17 of the Children Act 1989 provides as follows:

It is not now in dispute that both AG and HG are children in need within the meaning of section 17.

Section 11 of the Children Act 2004 applies to a local authority in England, such as the Defendant. It provides as follows:

The extent of the duties, and the circumstances in which a court will intervene, have been considered on many occasions. In R (G) v Barnet LBC [2004] 2 AC 208 the House of Lords laid down guidelines in respect of the duty under section 17 of the 1989 Act. The majority view, expressed by Lord Hope of Craighead, was that it imposed no mandatory duty to take specific steps to satisfy the assessed needs of a child in need. If a mandatory order is sought, the applicant must either point to some other statutory provision imposing a specific duty or must challenge the local authority’s decision not to take the step as unreasonable. Lord Hope said:

All were agreed that there is an implied duty to make an assessment of needs. Lord Nicholls of Birkenhead put it in this way:

At this stage I am only asked to look at the most recent assessment and decide whether it meets the requirements of section 17. That such scrutiny is appropriate, and may result in a mandatory order, is shown by R (J) v Caerphilly County Borough Council [2005] 2 FLR 860, on which the Claimants rely. It is also established that the assessment must have regard to imminent changes in the circumstances of the child concerned – see Lloyd Jones J in R (K) v Manchester City Council [2006] EWHC 3164 (Admin) at paragraph [40].

The recent Supreme Court decision in R (McDonald) v Kensington and Chelsea Royal London Borough Council [2011] UKSC 33 related to a duty to assess the needs of an older person, under section 47 of the National Health Service and Community Care Act 1990. There is, however, some useful guidance on the purpose and content of assessments in the judgment of Lord Dyson JSC at paragraph [53]:

That case also affirmed (despite the doubts expressed by Baroness Hale of Richmond JSC) that it is lawful for the local authority to take its resources into account in assessing need, as decided by the majority of the House of Lords in R v Gloucestershire County Council, Ex p Barry [1997] AC 584.

Finally I should refer to the comments of Munby J in R (B) v London Borough of Lambeth [2006] EWHC 639 (Admin) in which he underlined the following principles:

The primary decision maker is the local authority and not the court. The court’s function is one of review, not to come to its own assessment of what is in the child’s best interests.

It is for the local authority not the court to make the initial and core assessments of the children.

The Administrative Court exists to adjudicate upon specific challenges to discrete decisions. It does not exist to monitor and regulate the performance of public authorities.

As counsel for the local authority put it, the core assessment should not be subjected to a line by line comparison with the Framework. Core assessments are intended to assist local authorities to discharge their duties to children. The purpose of the process is not to enable claimants’ lawyers to carry out such a comparison in order to find some trivial difference with a view to fashioning that trivial difference into a ground for judicial review.

Sadly, some of the submissions in this case have neglected those principles and have effectively invited me to make my own assessment of need. As a result, the evidence has strayed too often into the minutiae which are not the province of this court.

The Department of Health has published a Framework for the Assessment of Children in Need and their Families (“the Framework”). It is issued under section 7 of the Local Authority Social Services Act 1970, which requires local authorities to act under the general guidance of the Secretary of State.

Section 3 of the Framework describes the process of assessing children in need. The first stage is the initial assessment (paragraph 3.9). Following that, a core assessment should be carried out (paragraph 3.11):

Judicial guidance as to the kind of detail and specificity required in such assessments is to be found in R (AB and SB) v Nottingham City Council and in R (J) v Caerphilly County Borough Council. As Richards J said in the former case about the standard form of Core Assessment Record, at paragraph [20]:

Statutory guidance on making arrangements to safeguard and promote the welfare of children under section 11 of the 2004 Act has been published by HM Government. Section 11(4) requires a local authority to have regard to such guidance in discharging its duty under that section.

I was not referred to any passages in this statutory guidance as imposing any greater duties on the Defendant in this case. In general it seems to be particularly applicable to cases where more than one agency is involved, and there is a need for cooperation between them.

AT describes how the family is living in a one bedroom flat on the top floor of a block owned by a housing association. There is a report from an environmental consultant, Mr Cairns, dated 11 October 2012 which highlights penetrating damp in the bedroom, mice droppings, faulty window catches, and an inadequate balcony guardrail. He says that the accommodation is unsuitable for the children’s special needs, and a ground floor flat, or a flat in a block with a lift, would be more appropriate. Most of AT’s statement is concerned with the difficulties caused by inadequate and insanitary accommodation.

AG is five years old and has an autistic spectrum disorder. He has social communication difficulties, significant language delay, difficulties understanding how other people are feeling, and no real understanding of danger. He sleeps very little. Because of his social difficulties and inability to deal with change, he has the only bedroom in the present flat. He attends school, where he has been assessed for a statement of special educational needs. Taking him to and from school is difficult and stressful. From time to time his parents benefit from “short breaks”, when he is looked after for a few hours on a Saturday morning by Scope. There is a threat that this may end in April 2013.

HG is two years old and has Down’s syndrome. It is not yet clear how much he may suffer from developmental delay. He is often sick, with a constant chesty cough. He has to sleep on the floor in the living room with his parents. On 19 November 2012 he started at nursery, once a place had been arranged for him by the Defendant’s staff.

The two boys’ disabilities compound each other, as each finds it difficult to deal with and understand the other’s behaviour. They cannot share a bedroom, so the family needs three bedrooms. Both have some difficulties with mobility, and would benefit from outdoor play facilities.

AT suffers from acute migraines, for which she is undergoing specialist investigation, and back pain. Getting up and down stairs is very difficult with two boys who cannot manage stairs independently. On 24 December 2012 she fell on the stairs and broke her ankle. Her leg will be in plaster until late January, following which she will need physiotherapy.

GH has worked in the past as a driver for Addison Lee, but at present has no employment. His statement says that he is very happy with parts of the revised assessment, that their housing priority has been increased and that HG is in nursery. His concern is that the assessments do not properly address the children’s needs or provide a clear plan. By way of example he sets out some practical problems which have arisen this month.

On Monday 7 January the carer was not properly briefed so could not help with the school run.

On Wednesday 9 January a childminder came to look after HG but would not come up to the flat. That was solved after a telephone call.

Since Friday 11 January HG has been taken to and from nursery by a childminder, but she does not arrive at the flat until 9.45 am and GH has to take HG down the stairs for her. As a result HG is an hour late for nursery each day.

The parents have no support getting the boys up and ready in the morning which is what they really need.

Carers have been provided to help after school, but the service provided is not useful.

In addition, GH says that there is no contingency plan to help them with a move from the present flat, which may have to take place very quickly.

There is a core assessment for both children and the family as a whole, together with separate documents for each child. Inevitably there is much that is repeated, as many of the needs are those of the family and arise both from their housing and from the interaction between the two boys and their disabilities.

The following matters are noted in the core assessment:

AT broke her ankle some time prior to the visit on 3 January 2013. Ongoing liaison with the Specialist Family Support Service is needed to monitor and adapt the support required for GH and AT in order to meet their children’s needs.

The family are experiencing overcrowding issues.

AG and HG are both disabled and require constant monitoring and support at home as well as out in the community.

AG is a five year old boy, born on 16 June 2007, with a diagnosis of Autism. He has difficulties with language, social interaction and play skills. He attends school and has a Statement of Educational Needs. This is being challenged by the parents using different solicitors. They hope that he can be moved to a specialist school as a result.

Since 24 September 2012 AG has received targeted support at school. Of this, 20 hours comes from his Band 4 statement and 10 hours has been added by the school because he needs 1:1 support in all lessons. He now has a teaching assistant with him in all of his lessons. The school reported that AG has no awareness of danger and runs off from the playground if an adult is not with him. His behaviour can be very challenging.

At present AG qualifies for targeted “Short Breaks” support from Scope and Action for Children. From March 2013 he will not automatically qualify for this and an assessment will be required. The Islington Targeted and Specialist Children and Families Service (“TSCFS”) single assessment can be taken into consideration, so he may continue to receive these hours. The writer of the Core Assessment will be advocating that this support should continue.

AG was observed in his home, and the difficulties in managing him are graphically set out. His parents described him as the more challenging of the two children, with a very short attention span and easily distracted.

HG is a two year old boy, born on 5 April 2010, with Down’s Syndrome. Details are given of his difficult birth. It is noted that a referral was made to the Early Years Team for a priority placement at a nursery, and that he started on 19 November 2012. Since AT fractured her ankle on Christmas Eve, a request for an extension in HG’s hours at nursery was made to the Early Years Team, and from 8 January 2013 he has been attending on a daily basis. The next review was due on 23 January 2013.

HG displays affection towards his parents and his brother, but AG is unable to accept this. As a result, as the boys get older, HG may feel uneasy around AG, especially if AG’s outward aggression towards HG continues.

The parents currently pay for a family friend to take HG out on Saturday mornings while AG has his Short Break provision. Whilst AT’s ankle recovers, a bespoke package of family support has been offered to the family, including basic assistance to GH to bath the children (this is the support which GH describes as not useful), a family support worker during the day, and additional support at weekends. In addition, an Ofsted approved child-minder has been allocated to take HG to and from nursery.

There is a good deal of detailed description of the practical difficulties experienced by the family in managing the two children. The assessment continues: “Over the last few days since the family support commenced, there has been daily communication between the parents, myself and the Family Support Workers, to unpick exactly what support the family requires and how best to deliver this support”. One of the difficulties noted is that the home environment is quite chaotic, and there are no set routines.

The current level of support is stated to be time-limited, an intensive piece of support whilst AT’s ankle heals. The aim of the Specialist Family Support Service is to provide parenting advice, guidance and support to the parents for them to develop their parenting skills in managing with two young children with additional needs. The package of support will be reviewed weekly.

As early as 2010, when the parents had separated, AT was struggling to cope with two disabled children, especially with the external stairs to her flat.

AT has a diagnosis of vertigo, and is on long term medication, but still has episodes of dizziness and nausea.

There are safety issues in the present flat, particularly because the living room window is wide-opening, and because the flat is very small. Safety will become a more significant issue as the children age. TSCFS is of the view that a ground floor property would best safeguard AG and HG from the very predictable safety risks as they become older, and like all children a garden would be beneficial.

The deficiencies caused by damp and mouse-infestation are noted. The latter is a significant safety concern as AG has picked up dead mice from the traps. After past problems, the family now have 446 points, allowing them to bid for a 3-bedroom ground floor property.

The family are in receipt of child benefit, child tax credits, income support and disability living allowance (“DLA”) for HG. They were due to be assessed to see if AG qualifies for DLA.

The Analysis section notes that GH did not want to have the involvement of solicitors and the TSCFS as he feels that the family’s needs could be met by services that they were already entitled to. If they had the points earlier to bid for 3-bedroom ground floor properties, they would not have instructed solicitors.

The writer’s view is that the family have worked hard to manage their children’s challenging and additional needs, and have sought out resources available to support them, but still need intervention from the TSCFS.

A key contributing factor to the family’s difficult and stressful circumstances is the current housing, which is severely overcrowded, with inappropriate conditions of damp and mice infestation, and with significant safety concerns. With 446 points they are entitled to rehousing and can bid for a suitable property.

The individual plans for the two children are largely repetitive, and understandably so. Insofar as the assessments are criticised for this repetition, I reject it. I do not interpret it as any lack of attention to the individual needs of the children.

I asked Ms Gallagher, for the Claimants, what was missing from the latest assessments. She said that the most pressing need was for rehousing (as the assessments make clear). She complained that there is no mention of the difficulty in managing both boys on a flight of stairs, especially external stairs. I reject this, as the existence of external stairs as a problem is noted (see paragraph 36(xiii) above) and the detailed descriptions of difficulties in managing the two boys make it abundantly clear that getting them up and down stairs would be a challenge. The appreciation of that difficulty underlies the strong support for a ground floor property.

Beyond this, the remaining complaints on behalf of the Claimants relate to the alleged lack of contingency planning.

There is no assessment of the timeframe for rehousing, or the risk that even with 446 points the family will be ousted by people downsizing, whom the Defendant’s housing website says will have priority for all properties.

There should be some steps planned to ensure that the family gets ground floor priority for housing.

There should be a plan to manage the move to new housing, which might take place very quickly.

There should be a plan to cover the possibility that the family will have to stay where they are for more than a very short additional time.

There should be a plan for managing a move to temporary accommodation, if suitable permanent accommodation does not become available in the very near future.

There should be a plan to manage the possibility that GH will obtain a job and not be available to assist during the day.

There should be plans for school transport for AG and nursery transport for HG.

In my judgment these are unreasonable and unrealistic criticisms of what is now a reasonable core assessment for this family. I make no comment on the history of assessments, which does not arise for consideration here. As to Ms Gallagher’s specific complaints:

The timeframe for rehousing is not within the control of the writer of the core assessment. The policy of giving priority to those who are downsizing is stated on the property website. It is being challenged by these Claimants, but until that is determined the assessment must proceed on the basis that it is valid. It would be no help to either the Claimants of the Defendant for there to be an arbitrary guess at when the family will obtain suitable permanent housing.

The assessment of Mr Cairns, on which the Claimants rely, is not that a ground floor property is essential. A flat in a block with a lift would be appropriate in his view. Whilst there are reasons to prefer ground floor accommodation, and this is supported by the core assessment, there is no arguable basis for saying that further steps could or should have been included in the plans and assessment to ensure that this family is allocated such accommodation.

The assistance needed at the time of the move will depend on when the move takes place. There is already an intensive support plan, discussed daily with the parents and reviewed weekly. The need for some assistance is perfectly obvious without needing to be spelled out. In relation to the needs of the children (which is what the Children Act duties are directed at), it may be achieved by their being at school or nursery at the time of the move. Support thereafter to ensure that they settle in the new home (or rather that AG does, as there is no evidence that HG is likely to have a problem) must depend on a day to day assessment of AG’s reaction.

This will be assessed at the weekly reviews. If it appears that a move is not forthcoming (contrary to the expectation of everyone prior to the hearing), there will have to be a discussion of whether the family should move to temporary accommodation or whether anything further can be done at the present accommodation. This court is not designed to oversee the day to day decisions of social workers in those circumstances.

The same applies here. Any move to temporary accommodation would cause difficulties for AG in settling there. For this reason the Claimants have thus far declined to seek such a resolution of their problems. If they were to change their mind, further discussions would be required to arrive at a practical plan.

This is a more remote possibility, and can very easily be accommodated by a discussion and review if it happens.

These have been dealt with. The fact that HG has to be late arriving at nursery is a resource-related problem which does not disclose any failing in the assessment process.

At the heart of the criticism of the latest assessments is the complaint, almost amounting to anger, that the Defendant has failed to provide the family with suitable permanent accommodation. That is not a result which can be guaranteed by a proper discharge of the duties I am considering at this stage.

For these reasons I have concluded that there is no basis for challenging the adequacy of the current assessment for the purposes of section 17 of the Children Act 1989.

It is accepted by Ms Gallagher that there is an overlap between the 1989 Act duty and that under the Children Act 2004. She suggests that a more intrusive review is required where there is an international duty, as the 2004 Act is designed to incorporate the duties under the United Nations Convention on the Rights of the Child.

I do not need to decide whether this submission is correct, as any amount of intrusion will not in my judgment disclose a flaw in the latest assessment sufficient to make it irrational, unreasonable, or lacking in proportionality. I bear in mind the comments of Lord Dyson set out in paragraph 19 above, and the explanation of Richards J set out in paragraph 25 above.

For those reasons I decline to grant declaratory or mandatory relief as sought by the Claimants on the continuing Children Act Issues.

I have invited written submissions as to the future conduct of this application, and will give my decision separately on this.