C1 & C2, R (on the Application of) v London Borough of Hackney

The claimants, a girl and a boy, are five and four years old respectively. They live with their mother in a one bedroom flat. It is undisputed that the flat is not suitable and that the family needs a three bedroom flat with access to outdoor space. This application for judicial review is brought with a view to requiring the defendant to provide them with such accommodation forthwith. To preserve the claimants’ anonymity, I will not refer to any member of the family by name.

The story of how this family came to its present plight is not a happy one but, sadly, it is by no means unique. Suffice it to say that the children’s mother was fleeing an abusive relationship and she and her children became homeless as a result. In November last year, after spending time in temporary accommodation, they moved into the unsuitable flat in which they presently live.

To make things worse, both children face significant challenges. The girl has behavioural problems. More seriously, the boy is autistic and is constantly active with even less sense of danger than is characteristic of children of his age in general. Predictably, the particular needs of her children have taken their toll on their mother.

Solicitors acting on behalf of the family managed to persuade the defendant to place the claimants’ mother on the housing waiting list following an assessment that she required a two bedroomed house. However, in reliance, at least in part, upon an occupational therapy report dated 1^st May 2014, which emphatically criticised the adequacy of the flat in which the family continued to live, judicial review proceedings were commenced. This claim was compromised on terms and upon the defendant’s express written acknowledgment that the flat was unsuitable.

The terms of the consent order did not directly compel the defendant to provide suitable accommodation. Instead, they purported to require the defendant’s children’s services department to write a letter to the defendant’s housing department requesting that the family should be provided with a three bedroom property with access to outdoor space.

This request was made, and the defendant duly wrote itself a letter. Since the two departments operated from the same address, the letter was sent from “Hackney Service Centre, 1 Hillman Street, Hackney, London E8 1DY” to “Hackney Service Centre, 1 Hillman Street, Hackney E8 1DY”.

Subsequently, in response to an email from the family’s solicitors requiring an urgent update, the defendant’s housing department wrote to say that they were liaising with Family Mosaic, who were the landlords of the one bedroom flat, to see if they could find more suitable accommodation from out of their stock. The children’s mother telephoned Family Mosaic and was disappointed to be informed that its housing register was closed and that they were not accepting new transfer applicants.

Unhappy with this turn of events, the family commenced fresh judicial review proceedings alleging that the failure of the defendant’s housing department to comply with the request for assistance from its children’s services department was unlawful and seeking an order mandating the defendant to comply with its terms. The defendant denies that it is obliged to provide the assistance requested in the letter. It now takes a legal point arising from what it claims to be the proper interpretation of the relevant statutory framework.

The duties owed by the defendant to the claimants arise primarily from the operation of Part III of the Children Act 1989. Other, separate, duties to the family as a whole arise under the relevant housing legislation.

The consent order of 29 July 2014 incorporated an undertaking on the part of the defendant to make a request under section 27 Children Act 1989 in the form set out in a letter annexed to the Order. The terms of the compromise were approved by Foskett J.

When the claimants sought to embark upon their second judicial review challenge, the defendant raised the point that, despite the express wording of their undertaking, section 27 did not, in fact, apply to the circumstances of this case.

At the outset of the hearing before me, I raised with counsel acting for the claimants the issue as to what would be the consequences if I were to find that, on its true construction, section 27 did not apply. I speculated that the compromise agreement could arguably be approached from a contractual perspective. It could perhaps be reasoned that, even if section 27 did not apply, the proper interpretation of the compromise agreement might involve the imposition of a duty upon the defendant to act as if section 27 did apply; albeit as a matter of contractual performance or estoppel rather than under direct statutory obligation (see, for example, Briggs v Gleeds [2014] Pens. L.R. 265). This approach may also have involved an inquiry into whether the assumption of a contractual obligation imposing an obligation equivalent to that imposed by a statute which did not actually apply would have been ultra vires. Finally, the question as to whether the compromise agreement as a whole had been vitiated by a common mistake of law may have arisen (see Brennan v Bolt Burden [2005] Q.B. 303).

Faced, however, with this unappetising array of private law complications, counsel for the claimants elected to pursue his case on the basis that it was a necessary (but not sufficient) condition of the success of his application that he should succeed in persuading this Court that section 27 applied to the facts of this case. This question was then dealt with as a preliminary issue which, it was agreed by the parties, if resolved in favour of the defendant would result in the dismissal of the claim.

Section 27 of the Children Act 1989 provides in so far as is material:

“(1)

Where it appears to a local authority that any authority or other person mentioned in subsection (3) could, by taking any specific action, help in the exercise of any of their functions under this Part, they may request the help of that other authority or person, specifying the action in question.

(2)

An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of their functions.

(3)

The persons are —

(a)

any local authority; …

(c)

any local housing authority; …”

Thus the existence of the qualified obligation to comply with the request contained within sub-section (2) is conditional upon that request falling within the scope of sub-section (1).

The defendant’s case is that its children’s services department and housing department are both operating within the environment of one overarching unitary authority and that, on its proper construction, section 27 can only apply in circumstances in which one authority is requesting help from another authority. The crucial word in the section is “other”.

In the interpretation section of the 1989 Act (section 105), a “local authority” is defined with reference to a comprehensive list of bodies. The defendant falls within this list as “a London Borough”. There is no reference in the list to any individual department which may exist within any of the bodies listed. It follows that, for the purposes of this case, it is “the London Borough of Hackney” which is able to make a request under section 27.

The subsequent reference to “other authority” within the same sub-section is limited by the list in sub-section (3). In so far as is material to this case that means “any local authority” or any “local housing authority”.

Since the London Borough of Hackney is the only local authority involved in this case it cannot be another “local authority”.

Could it be, as the claimants contend, that the housing department of the London Borough of Hackney is “any local housing authority” within sub-section (3)?

Section 105 provides that “local housing authority” has the same meaning as in the Housing Act 1985. Section 1 of the 1985 Act provides an exhaustive list of bodies which qualify as a “local housing authority” the only relevant one of which “a London borough council”. In this case, that is the London Borough of Hackney.

The London Borough of Hackney cannot be an authority which is “other” than itself. On a straightforward reading of section 27, therefore, the consequences of sub-section (2) do not arise in circumstances in which, as here, one department of a London borough requests the help of another department of the same London borough.

The point may also be made (although it is not one upon which my decision rests) that if Parliament had intended that section 27 should cover the relationship between different departments within the same authority then it could easily have expressly provided for this (see, by way of example, section 213A of the Housing Act 1996).

I am fortified in my conclusion by the decision of the Court of Appeal in R v London Borough of Tower Hamlets, ex p. Byas (1992) 25 H.L.R. 105.

In that case, the applicant was a single parent with five children. She was living in temporary accommodation. The social services department of Tower Hamlets made a request to the housing department to accommodate her under section 27 of the 1989 Act. The housing department refused. The applicant sought judicial review. Her application for leave was refused. She appealed to the Court of Appeal.

Russell L.J. held at p. 106:

“Mr. Westgate on behalf of the applicant submitted to the learned single judge, and has repeated his submissions to this court, that that section catches the situation that prevailed in this case, in the sense that, one department of the same local authority was seeking help, within the same local authority, from another department, and that it is not necessary so to construe the section as to involve two separate local authorities.

The problem, amongst many, which confronts Mr. Westgate, in my judgment, is that his construction of section 27 offends the plain and natural meaning of the words used in the section and, furthermore, falls foul of section 29, which, in general terms, enables the authority which is requested to give the assistance contemplated by section 27 to recoup from the requesting authority the cost of the provision of services. It is a short point of construction that is involved, and the learned judge described that placed upon it by the applicant as “so strained as to be out of the question.” I agree with that assessment. This is simply another way of saying that the point taken is unarguable.”

Russell L.J. was wrong in his assertion that section 29 of the 1989 Act provides for the party to whom the request is made to recoup the costs from the requesting party. The statutory system of recoupment applies only to the provision of services under sections 17 and 18 of the Act and not to section 27. Nevertheless, the erroneous reference to section 29 was no more than the gilding of refined gold. The point of central importance was that the wording of section 27 itself is fatally irreconcilable with the construction which the applicant in that case sought to put upon it. It is this selfsame construction which the claimants advance before me in this case.

Hoffmann L.J. (as he then was) trenchantly observed:

“In my judgment, this application is perfectly hopeless. Section 27 of the Children Act 1989 enables a local authority to ask for the help of one of the other authorities mentioned in section 27(3). It seems to me quite unarguable that the requesting authority can itself be the authority to which the request is addressed. You cannot ask yourself for help.”

As a matter of strict precedent, a decision of the Court of Appeal refusing a renewed application for leave or permission is not binding on this court. Nevertheless, such a decision is due considerable respect and in this case, I unhesitatingly afford it.

It is also to be noted that a request falling within the scope of section 27 is one which requires no formality whatsoever. If the claimants were correct in their submissions, any inter-departmental request for help requiring specified action in the exercise of functions falling within the broad parameters of Part III of the 1989 Act would engage the requirements of sub-section 2. It is difficult to believe that Parliament could have intended to have created such a mechanistic and casual autogamy of a reviewable decision.

The claimants contend that the decision in Byas has been undermined by subsequent authority. They point to the speech of Lord Nicholls in R(G) v Barnet London Borough Council [2004] 2 A.C. 208 at para 62 in which he observed:

“62 … When enacting the Children Act 1989 Parliament envisaged that a local authority might need to seek help from other authorities, such as a local housing authority, in discharging its functions under Part III of the Act. Section 27 of the Children Act 1989 provides that the requested authority must comply with the request if it is compatible with its own duties and does not "unduly prejudice" the discharge of its own functions. The relevant authorities are obliged to cooperate with each other. So in discharging its duty under section 17(1) Lambeth council's social services department, as the local social services authority, may request help from the housing department, as the local housing authority, in re-housing A and her family. The housing department must comply with the request if it is compatible with its own duties and does not unduly prejudice the discharge of any of its functions. I emphasise the word "unduly". If such a request is made the housing department, much pressed as it undoubtedly is, must nonetheless take note that the department responsible for safeguarding the welfare of children has decided that these two children need better housing. The housing department will wish to consider the practicability of accelerating the provision of accommodation which at least in some respects is more suitable for the acute needs of these two disabled children.”

However, it must be borne in mind that these observations were made in the context of a dissenting speech and were deployed in support of a conclusion which was rejected by a majority of their Lordships. It is not recorded in the official ICLR law report that any argument was directed to the point by the advocates and no reference was made, either in argument or in any of their Lordships’ speeches, to the Byas case. Thus, although not strictly per incuriam because the Byas decision is not of binding authority on the House of Lords, I am satisfied that this passage is obiter and based upon an assumption as to the scope of section 27 which was reached without the benefit of argument. I do not, therefore, with respect, consider that it should be followed.

The claimants also rely upon a passage in R(M) v Hammersmith and Fulham London Borough Council [2008] 1 WLR 535. In that case, the issue was as to whether the relevant children’s services department owed the claimant a duty as a “looked after child”. The definition of a “looked after” child is to be found in section 22 of the Children Act 1989 (as amended). The claimant argued that the housing department should have drawn her circumstances to the attention of the children’s services department and, if they had, then the latter would have provided her with accommodation and she would have been a “looked after” child. It was as a result of the housing department’s failure to contact children’s services that she had not been so accommodated and, therefore, she ought to be treated as if what ought to have been done had actually been done. Baroness Hale observed:

“44 But that is by the way. It is one thing to hold that the actions of a local children's services authority should be categorised according to what they should have done rather than what they may have thought, whether at the time or in retrospect, that they were doing. It is another thing entirely to hold that the actions of a local housing authority should be categorised according to what the children's services authority should have done had the case been drawn to their attention at the time. In all of the above cases, the children's services authority did something as a result of which the child was provided with accommodation. The question was what they had done. In this case, there is no evidence that the children's services authority did anything at all. It is impossible to read the words -

“a child who is … provided with accommodation by the authority in the exercise of any functions … which are social services functions within the meaning of the Local Authority Social Services Act 1970 …”

to include a child who has not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority. Once again, had this been a non-metropolitan authority, the housing authority could not have provided accommodation under section 20 and the social services authority could not have provided interim accommodation under section 188 . The position cannot be different as between the unitary and the non-unitary authorities.”

I have found this passage to be of no assistance. The issue was as to whether the claimant was provided with accommodation by any authority in the exercise of “social services functions”. The services provided by the housing department did not fall into any of the categories listed in schedule 1 of the Local Authority Services Act 1970. The case had nothing to do with section 27 or with any similarly worded provision.

The claimants go on to complain that it would be absurd if a distinction could be drawn between, on the one hand, a children’s services authority in a shire county requesting help from a district council with housing functions and, on the other, a unitary authority from its own housing department. The former would fall within section 27 and the latter would not.

This objection might have had greater force but for the fact that the claimants have, in my view, over-estimated the practical public law consequences of a section 27 referral in any event. The decision of the House of Lords in R v Northavon District Council Ex p. Smith [1994] 2 A.C. 402 demonstrated a marked reluctance on the part of their Lordships to allow circumstances to arise in which section 27 could be used as a vehicle to facilitate judicial review challenges.

In Smith, the housing authority had found that the applicant and his family were intentionally homeless. They were thus not entitled to permanent housing and the duty to house them temporarily had been discharged. The social services authority made a request of the housing authority under section 27 which, if complied with, would have favoured the applicant and his family in priority over other eligible families with housing needs. The housing authority declined to accede to the requests whereupon the applicant challenged its refusal with reference to the obligations imposed upon it by the operation of section 27.

In considering the housing authority refusal to comply with the request from social services, Lord Templeman, with whom Lord Jauncey, Lord Mustill and Lord Slynn all agreed, stated at 408:

“First, it was said that the housing authority were under a duty to provide permanent accommodation for the family of Mr. Smith at the request of the social services authority. Secondly, it was said that following that request, the housing authority should at least have given further consideration to the possibility of providing permanent accommodation for the Smith family. Thirdly, it was said that the housing authority should at least have provided and paid or considered the provision and payment for temporary accommodation. Fourthly, it was said that the letter dated 19 January 1993 did not give adequate reasons for refusing to comply with the request made by the social services authority for permanent accommodation and did not give any reason at all for refusing to comply with the request made by the social services authority for temporary accommodation. My Lords, these arguments demonstrate the need to prevent the functions of a housing authority and the functions of a social services authority becoming blurred. If any of these arguments were accepted, every social services authority will understandably seek to exercise their powers under section 27 in order to transfer the burden of the children of a person intentionally homeless from the social services authority to the housing authority. Every refusal by a housing authority to comply with a request under section 27 will be scrutinised and construed with the object of discovering grounds for judicial review. The welfare of the children involved the welfare of children generally and the interests of the public cannot be advanced by such litigation.”

Lord Templeman went on to cite with approval the observations of the judge at first instance:

“…Parliament intended that the requesting local authority and the requested authority should co-operate in exercising their respective and different functions, under the relevant statutory schemes. Parliament did not, however, intend that the nature or scope of those respective functions of the requesting local authority and the requested authority should change, as a result of the imposition of a duty to co-operate.”

Finally, he held:

“The social services authority are responsible for children and the housing authority are responsible for housing. The two authorities must co-operate. Judicial review is not the way to obtain co-operation. The court cannot decide what form co-operation should take.”

The claimants seek to distinguish Smith on the grounds that in that case it had been established as a matter of fact that the housing authority could not have provided the help requested without breaking the rules which applied to persons on the waiting list. Lord Nolan identified the relevant question to be whether the decision to refuse the request was one which the housing authority was entitled to make. In this case the claimants argue that the evidence does not prove that compliance with the section 27 request would have broken such rules.

Lord Nolan concluded:

“In conclusion I wish to express my complete agreement with the views expressed by my noble and learned friend, Lord Templeman, upon the effect of section 27 of the Children Act 1989. That section does not amend the Housing Act 1985. It is to be hoped that as a matter of normal practice a social services authority, faced with the problem of children who are threatened with homelessness, will explore the possibility of obtaining council accommodation informally and in a spirit of mutual co-operation rather than by an immediate formal request, unsupported by any offer of contribution, under the provisions of section 27.”

Indeed, as Lord Hope, with whom both Lord Millett and Lord Scott were in agreement, pointed out, at para. 93 of R(G) v Barnet, a reading of section 17 (1) of the 1989 imposing a specific duty upon social services to provide residential accommodation to individual children “could have the effect of turning the social services department of the local authority into another kind of housing department with a different set of priorities for the provision of the homeless than those which section 59 of the Housing Act lays down for the local housing authority.”

This is the mirror image of the argument that section 27 requests from social services should not be allowed to re-write the legitimate priorities of the housing department.

It is not necessary for me, for the purposes of resolving the issue as to the application of section 27 in this case, to determine any issue of fact as to whether the housing department has or has not demonstrated that acceding to the request from social services would have broken their rules relating to housing list priorities. I do, however, find that the impact of Smith is, even on the most generous interpretation to potential claimants, one that imposes very strict constraints indeed upon the deployment of section 27 as a vehicle through which to challenge housing department decisions. The circumstances (if any) in which a perfectly rational and legal housing decision can be rendered susceptible to meritorious judicial review by a section 27 request must be few and far between. As Lord Templeman pointed out in Smith the section 27 request did not tell the housing authority anything that they did not already know and it was the housing authority’s decision to make under section 65(3)(a) of the Housing act not that of the social services authority.

Thus the application of section 27 is unlikely in any given case significantly to enhance the prospects of mounting a successful claim by way of judicial review thereby rendering the practical consequences of the distinction between separate authorities and departments working within the same authority of little, if any effect.

The Claimants further contend that the interpretation of section 27 should be influenced by Article 3 of the Convention on the Rights of the Child which provides:

“1.

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the area of safety, health, in the number and suitability of their staff, as well as competent supervision.”

Section 11 of the Children Act 2004 also requires local authorities and other bodies to ensure that their functions are discharged having regard to the need to safeguard and promote the welfare of children.

I am satisfied that neither the Convention nor the 2004 Act can operate so as to equip me to subject section 27 to what I consider would be a strained and wholly artificial interpretation. The interests of children are served and reflected in the provisions of the legislation governing both children’s services and housing. The needs of children are specifically and proportionately catered for in the prioritisation banding employed by the defendant. I am not persuaded that, by broadening the interpretation of section 27, I would be promoting the interests of children as a whole.

As Lord Templeman observed in Smith:

“The welfare of the children involved, the welfare of children generally and the interests of the public cannot be advanced by such litigation.”

I respectfully agree.

I am, therefore, satisfied for the reasons given above that section 27 of the Children Act 1989 does not apply to a situation in which one department requests help from another department within the same authority. This application for judicial review therefore fails.

Generally speaking, costs in a claim for judicial review would, as in the generality of cases, follow the event. Here, however, there is a complication.

The whole basis of the challenge in this case hinges upon the legality of an undertaking given by the defendant which it thereafter repudiated as being invalid. I take the view that the defendant must, therefore, bear some of the responsibility for catalysing the inception of the second claim for judicial review. Nevertheless, I do not accept that the defendant’s error amounted to a black cheque to the claimants to press on with the claim to ultimate defeat at the defendant’s expense. The following features are the most salient:

An application for leave to appeal was made in writing in this case on 5 November 2014. The application is refused. For ease of reference the reasons for refusal are given in respect of each ground sequentially. The tests under CPR 52.3 (6) for granting permission to appeal are:

“(1)

whether there is a real prospect of success; or

(2)

there is some other compelling reason why the appeal should be heard”.

I find neither of these threshold criteria to be made out with respect to all or, indeed, any of the grounds.

Obiter;

Deployed in a dissenting speech in support of a conclusion rejected by a majority of their Lordships;

Almost certainly made without the benefit of argument; and

Without reference to contrary Court of Appeal authority directly in point.