AC & SH, R (On the Application Of) v London Borough of Lambeth Council

On 26^th September 2016 the London Borough of Lambeth concluded a Child in Need assessment under s.17 Children Act 1989 concerning AC and SH determining that they were not ‘in need’. Their mother and litigation friend, Nicol Campbell seeks an order quashing the assessment and directing a fresh one. The challenge is brought on the basis that the procedure followed by London Borough of Lambeth (Lambeth) to carry out the assessment was not procedurally fair in that Miss Campbell was not given an opportunity to correct an adverse view of her honesty when the defendant determined whether the claimants were in jeopardy of homelessness and destitution. A further complaint is made that although Lambeth has acknowledged a subsequent diagnosis of AC’s autism it has failed in its duty to re-assess his needs as an autistic child in need.

To protect the anonymity of the child claimants the court has ordered that they be referred to as AC and SH.

Nicol Campbell is Jamaican national and has leave to remain in the United Kingdom until 19^th July 2017. She is permitted to work but has not found suitable paid work. She may not have recourse to public funds, although she has sought release from that limitation, unsuccessfully on two occasions and awaits a decision on her latest attempt. She is the single parent of her two children (half-siblings) born in the United Kingdom: AC aged 10, having been born in November 2007 (also a Jamaican national) and SH aged 4, having been born in April 2013 (who is a British citizen). By the time of the assessment both children attended school or nursery from (at least) 9am to 3.30pm.

Miss Campbell states that from 2008 until late 2015 the family lived at an address in Brixton with her mother, KM, who has indefinite leave to remain in the United Kingdom. This property at 10 St John’s Crescent, SW2 was sub-let by the grandmother. There was some contact with Lambeth in early 2014, after the birth of SH when Miss Campbell made an application for support but it was refused on the basis that while they lived together the claimants’ grandmother claimed and obtained child benefit and child tax credit for them and that SH’s father was providing financial support as well. There is no evidence that Miss Campbell challenged this conclusion or the basis for it. There is reference within the notes for this assessment that on 30^th January 2014 during a home visit to the family Miss Campbell had said that she was living with her mother and cousin and that she had been given notice to quit the property on 1^st February 2014. In that same note the following appears,

“Ms Campbell stated that she is not currently in a relationship and that there is very little contact with the children’s fathers. She receives no financial support from [AH’s] father [CF] and that he has not provided her with his address. Mr [F] is a British National.

Ms Campbell also stated that she does not have an address for [SH’s] dad, [DH] and that she does not have a telephone number for him. He visits “once in a while and sometimes provides milk for the baby and will help out when he can.” Mr [H] has ILR.”

In January 2015 the Home Office wrote to Miss Campbell to inform her of the success of her application for leave to remain. The basis for that leave was,

“Your daughter [SH] is a British citizen and you have supported (sic) that her father [DH], who is considered a settled person in the UK has a genuine and subsisting relationship with her and it is therefore not deemed to be reasonable to expect her to leave the UK.”

In September 2015 the Home Office rejected an application from Miss Campbell for recourse to public funds (made on the basis that she and the claimants were destitute.) She was told that the onus was on her to provide evidence of destitution and insufficient evidence had been provided. She had told the Home Office that she was living in accommodation provided by a cousin who wished to evict her family because he wanted to offer it to a tenant. She apparently provided two notices requiring her to leave in support of her application. These were said to come from the cousin but she had not provided any tenancy agreement, eviction notice or any further documentation to prove she was living at the address concerned. The Home Office also pointed out that she had not evidenced her assertion that she had been actively looking for work. Furthermore, at that time the family was said to be being supported by the parish church and Kids Company.

According to Miss Campbell’s statement for this claim, when the accommodation with her mother in Brixton was no longer available in late 2015 the family lived with a cousin at Claverdale Road, Tulse Hill, until asked to leave the accommodation on 21^st December 2015, which was over-crowded, just before Christmas. In December 2015 the family approached Lambeth Social Services for assistance. Lambeth said it would conduct a s.17 Children Act 1989 assessment but would not provide accommodation pending the outcome because it was not satisfied that the claimants did not have access to other accommodation in the event of homelessness. Lambeth took into account (and notified Miss Campbell accordingly) that it had found links between her family and an address at 3 Walt Whitman Close, including correspondence to the family from Kids Company in August 2015; correspondence with the Home Office in December 2013; Miss Campbell and her mother’s bank accounts registered at the address; KM using the address when claiming social security benefits for the claimants; and in December 2015 when KM used that address when making a housing application. Lambeth also informed her by letter on 21^st December 2015 that by contrast, ‘agency checks’ had found no evidence to connect her or her mother to the address in Brixton and interim accommodation was refused. As to the ongoing s.17 Children Act assessment, in a letter dated 22^nd December 2015 she was asked to provide details.

“Re: Further Information Children and Families Assessment”

Dear Ms Campbell

You approached Lambeth Children Social Care requesting an assessment of your children’s needs due to imminent homelessness issues as well as destitution.

To complete the assessment I need you to prove the following information;

1.

Please provide for the last 5 years details of all addresses and the dates that you have lived in.

2.

Please provide details the friends who have provided these accommodations and the reason why this support was ended.

3.

Please provide information as to how you were supporting yourself and meeting the needs of yourself and your family at each address you have lived in.

4.

Please provide details of any employment you have been engaged in.

5.

Please provide 12 months bank statements for your 4 bank accounts

6.

Please give details of your children’s father to include;

a.

When did you last have face to face contact with him or by phone?

b.

Please provide his contact details to include current address and phone number

Please provide the information requested by 30/12/2015.”

No response to this letter appears to have been made directly by Miss Campbell, but on 29^th February 2016 her solicitors wrote to Lambeth. The letter provided the following information as to where the family had been living.

“Prior to approaching your department were staying at 10 St John’s Crescent SW2 with our client’s mother KM however they were required to vacate this accommodation because the individual they were renting from required the property back. Whilst you suggest that all of our client’s records link her to 3 Walt Whitman Close we are instructed that this is a relative’s home and this address is merely used as a correspondence address. The family do not reside at this address. The family are currently staying with a friend at 3 Woodhall Court, 7 Whitsone Way, Croydon CR0 4WG. This is a temporary solution because your department are refusing to provide the family with temporary accommodation pending this assessment.

We make you aware that our client cannot stay at 3, Woodhall Court on a long term basis neither is this a practical solution given that her son, [AC] attends St John’s Angell Town Primary School Brixton. [AC] receives additional support at school because there is concern regarding his progress and the fact that he is behind his peers at school. AC received speech and language support at school and he is currently under assessment because there is concern that he meets the criteria for Autistic Spectrum Disorder. ”

The letter also explained Miss Campbell’s position that she had not looked for work due to child-care responsibilities, that her mother supported her by providing £150 a month and indicating that bank statements would be provided for Miss Campbell’s only active bank account. The family was at risk of becoming homeless imminently.

On 1^st April 2016 the Home Office wrote to Miss Campbell in response to another application for recourse to public funds. The application was refused, again on the basis of insufficient information as to destitution and the Home Office made it clear that the onus was on the applicant to provide evidence and explanation of her family’s current position. She was told that previous evidence demonstrated that SH had a relationship with her father who provided financial support. A request was made for a letter from him explaining the current support provided. The refusal letter referred to the application having been predicated on notice from Mr Lincoln Thompson, of 3 Walt Whitman Close for Miss Campbell to leave that property by 31^st May 2015 which, it was said, had only been available until she could find somewhere suitable to live. This appears to be inconsistent with the account she gave in her similar 2015 application and for this present case.

The family stayed with friends until May 2016, latterly in Croydon. Meanwhile Lambeth’s s.17 assessment was closed. Following disputes between the social services departments in Lambeth and London Borough of Croydon as to which area should be responsible for the family, legal proceedings were issued. That issue was resolved on 17^th May 2016 when Ouseley J. ordered Lambeth to provide accommodation on an interim basis and thereafter, by way of a consent order, on 25^th May Lambeth agreed to conduct an assessment of the children’s needs and to accommodate and support them, in the meantime.

It is necessary to set out the work undertaken for the present s.17 Children Act 1989 assessment in a little detail. A face to face meeting to obtain information took place on 12^th July 2016 between the claimants’ mother and two social workers from Lambeth’s No Recourse to Public Funds team. Miss Campbell was assisted by an advocate from a homelessness charity. Typed notes of the information given by Miss Campbell show that she said that after arriving in London she lived with her mother and went to college. Thereafter she moved out of her mother’s address and lived in Peckham but she was unable to provide the address. She appears not to have given information consistent with the notices of eviction she had relied on in her applications to the Home Office. She was in a relationship with AC’s father for 4 or 5 years and was happy. He was not happy about her pregnancy although she was. He disappeared but went to see her in hospital after AC was born. He didn’t like the name Miss Campbell had chosen and refused to register AC’s birth. Miss Campbell returned to live with her mother thereafter. She had known SH’s father for longer as a friend and her pregnancy with SH was a surprise. She said that AC had had several assessments and there was a suspicion that he was autistic. He was being referred for a formal assessment for autism. SH had started nursery 3 weeks earlier. She also described having become diabetic for six months in her first pregnancy with AC and the diabetes returning during her second pregnancy. She was told she would remain diabetic. Although not contained within the typed notes, one of the social workers who undertook the assessment, Valerie Matthews, has said in a statement prepared for this case that Miss Campbell told her at this meeting she was unable to seek work due to diabetes. Ms Matthew says that this reason was not accepted by her. Miss Campbell denies ever saying it.

On 15^th July 2016 Miss Campbell telephoned Lambeth to arrange a second meeting but was told that the assessment would continue with requests in writing and she would be told in the letter when a further meeting would take place.

A written request for further information was made by Lambeth on 19^th August 2016. The letter also included notice of intended visits to the claimants to involve them in the assessment. She was asked again to provide items 1-6 requested in the 21^st December 2015 letter [see paragraph 7] and, in addition, details of any health issues, if she was not in employment to explain why and confirm what efforts she was making, to say how long she expected support would be required, what her future plans were, closing statements for a Barclays Bank account which closed in February 2016, to explain why her mother had removed the claimants’ names from an application for social housing following Lambeth’s letter of 21^st December 2015, to inform Lambeth if she was seeking maintenance from the fathers of her children and if not, why not and also to explain the source of income from which she paid for her immigration application and NHS surcharge. This material and a response was sought by 30^th August 2016.

On 2^nd September, Miss Campbell responded setting out a number of relevant addresses for the past five years as:

“I have lived with my mother KM at 10 St John Crescent for the last 5 years which was ended late last October 2015. Then moved on 2 Cleaverdale Road, Tulse Hill for a couple of nights and moved on from there because there wasn’t enough space for us.

I was then staying in between 2 other places which was, during the week Monday – Friday I stayed at an Anerley 2 bus stops from Crystal Park with Miss Joan Bailey. She offers us a room so that [AC] could go to school in Brixton as the journey from Purley Way, Croydon was too far. I stayed with Mr Bailey for a month which ended before Christmas because she had issues with me…….

That night I ended up staying with someone else. Then the following morning I moved down to Miss Shelleyann Meikle at 3, Woodall Court, 7 Whitestone Way, CR0 4WG which we have stayed for a while. She volunteered to help us until I could get a place of my own. There was too much of us living in the house and things wasn’t working out well. My son AC wasn’t happy living there also the journey to school was too much for him. There was many other reasons why our stay there was ended. I have been diabetic for many, many years. I also suffer from high blood pressure and at times suffers from high cholesterol.”

She described the diabetes as a ‘chronic illness’. She said she had been supporting her family with help from her mother, a cousin and Kids Company. She had been looking for work since obtaining her leave to remain and described several shops where she had handed out her C.V. and said she had also made applications online. She didn’t provide any evidence of rejections. She needed work for limited hours compatible with her child-caring responsibilities. She said she had already provided bank statements for all her account including some she had closed. She said she had no contact with her children’s fathers who hid their telephone numbers and addresses from her when they made contact. They both refused to help their children. Her mother had added the family to her own housing application to help them out but she was unable to look after the children herself. She had been given money by her mother to pay for the application for leave. She included this, “At this present moment I am unemployed and unable to pay for my accommodation and my kids was unhappy living at other people house. I’m still looking for work but not sure if my wages can cover my living…..…My Mom added [SH & AC] on her housing application because of the disadvantage we were facing living at other people’s houses. She only did it out of her best interests of the kids so that we could have somewhere to live.”

Attempts were made to speak to the claimants’ grandmother on 9^th September by telephone in order to establish what support she was providing etc but she was unable to speak. When she called back she was told the reason for the contact and said she would have to call when she returned home. She didn’t call back. Another call was made to her shortly afterwards but went unanswered.

AC was seen at school on 13^th Septemberby agreement with his mother. The purpose of the visit was to find out his views although there are no notes of any conversation with him. The defendant accepts that AC said he had not had any contact with his father. Contact was sought with SH’s nursery and in a telephone call from the nursery she was described as speaking little and it being difficult to assess her needs. Her attendance had been very poor. The address provided for both children (AC had been to the same nursery before starting school) was 3 Walt Whitman Close although AC’s address had been changed to 10 St. John Crescent before quickly being changed back.

On 9^th September a social worker had writtento Miss Campbell acknowledging the contents of her 2^nd September letter, in particular the assertion that the claimants’ fathers were not providing any financial support to them. The letter continued, “The local authority has considered the above information and would like to recommend that you apply for child maintenance through the Child Maintenance Agency (CMA). Please provide me with evidence by 23/09/2016 that you have contacted the CMA.” The telephone number and opening hours of the agency were included. In response Miss Campbell’s solicitors wrote to the defendant on 21^st September and said, “Our client instructs that she has no details of the children’s fathers. She is not in contact with them neither have they tried to play a part in the children’s lives. On that basis she cannot contact the Child Maintenance Agency because she has no information to give them.” There is no evidence that any attempt has ever been made by Miss Campbell to obtain the assistance of the CMA in tracing the men concerned in order to obtain support.

On 16^th September, in a telephone callMiss Campbell was asked about her diabetes which she said was diet-related Type 2. She also said she had last received money from her mother in September 2016 and it had all been spent. She was asked to make arrangements concerning the water bill at the property the family was living at, which she agreed to do.

Miss Campbell contacted Lambeth seeking another meeting and she was asked to attend on 21^st September. On that day she attended again with a friend (although it is not clear who this was). She was given a subsistence payment in cash. She had contacted the water company and the bill was discussed. She was asked about the report of poor attendance at SH’s nursery and she denied it. She was unable to give contact details or dates of birth for her children’s fathers. She knew their immigration status and said that neither of her children had passports. This was the second face to face meeting with social workers during the assessment although there were other times when Miss Campbell was seen, usually in connection with financial support.

Contact was made with the claimants’ General Practitioner and checks were done with the Home Office. On 21^st September the Home Office responded to a request for information sent that day. The response set out Miss Campbell’s immigration history and included information that her application for leave to remain on human rights grounds, made in December 2014 (which resulted in leave until July 2017) stated that Delroy Henry, father of SH, sees his daughter. AC’s father was said to have no contact with him. No specific reference was made to financial support from either father in that email.

Until September 2016 KM, the claimants’ grandmother, continued receiving child benefit and tax credits. She had included the entire family on her own application for social housing from Lambeth but in August 2016 she accepted accommodation in sheltered housing which was unsuitable and unavailable for her daughter and grandchildren.

Lambeth’s s.17 Children Act assessment is dated 26^th September. It concluded that the claimants were not destitute or at genuine risk of homelessness and required no services to be provided. This conclusion proceeded from explicit adverse findings as to credibility against their mother, Miss Campbell on the basis that she had deliberately misled Lambeth and attempted to manipulate the council into providing housing for the children, and thereby herself, while there were alternatives available to the family to avoid destitution. In particular:

The assessment was made available to Miss Campbell on 3^rd October 2016. It provided a 12 week period within which accommodation would continue but she would be expected to take steps to improve her situation and obtain maintenance payments and employment. At the expiry of that time the contingency situation was to be s.20 Children Act provision for her children, separate from her.

The applicant’s solicitors requested a copy of the relevant social services file (for a record of the work done in connection with the s.17 assessment) on 13^th October (sending a cheque to cover the copying costs), 8^th November, 15^th November, 18^th November, 28^th November, 2^nd December and 15^th December but it was not provided until 19^th December 2016.

On 8^th December 2016 Miss Campbell made a third application for recourse to public funds which remains undetermined.

There seems to have been no attempt to respond to or challenge the content of the s.17 assessment between 3^rd October and just before Christmas when, on 20^th December 2016 two Pre-Action Protocol letters were sent to Lambeth alleging unlawfulness in the assessment and inviting Lambeth to make a fresh assessment and provide interim accommodation. In the second letter a specific ground for a new assessment was AC’s formal diagnosis of autism which had been made after 3^rd October. This was provided to Lambeth for the first time. The undated final report followed an assessment of AC by a specialist medical team at the Mary Sheridan Centre for Child Health which confirmed that he meets the diagnosis of Autism Spectrum Disorder. It contains recommendations to meet his ‘significant additional education needs’. No specific recommendation was made concerning social care needs although the report recommends that adults working around him should develop a consistent approach to supporting him.

After considering the report the defendant decided on 21^st December that as AC had been known to Paediatric Development and Autism Diagnostic Clinic since he was two years old and on the basis that the recommendations would be accepted and implemented by the school and Education Department, the formal diagnosis made no significant changes to the family’s circumstances or to the outcome of the s.17 Children Act assessment.

In response to the Pre-Action Protocol letters Lambeth Legal Services asserted its belief that alternative accommodation was available to the family, that Miss Campbell had been evasive during the assessment which made it “very difficult… to fully assess what accommodation the family had available to them in the past and which may still be available”, and refused to re-assess in light of the autism diagnosis.

About twelve weeks after the assessment the family was evicted from the property they had been living in. An order was made by a High Court Judge on 10^th January 2017 requiring Lambeth to continue to provide interim relief by way of accommodating the family and they remain in that accommodation pending the resolution of this claim. Subsistence payments of £443.84 per month have been provided to the family from September 2016.

Following an oral hearing on 8^th February 2017 permission was granted by Mr Justice Garnham in respect of the procedural fairness challenge and the failure to take into account the diagnosis of autism. Although the transcript of the judge’s ruling does not refer to the claimants’ grandmother, in his Order granting permission the judge did not specify whether the arguable procedural unfairness extended only to Miss Campbell or whether a similar failure in respect of her mother was also arguable. Permission was refused on other proposed grounds namely a failure to make adequate or proper enquiries of other people and the alleged irrationality of the conclusions as to destitution. These grounds have not been renewed.

Miss Campbell has provided evidence of attempts to secure work since the assessment. She prepared a statement dated 10^th January 2017 for this claim in which she attempts to answer some of the matters of concern raised in the assessment:

Post-assessment statements have also been prepared by Ms KM, Mr Delroy Thompson and Mr Lincoln Thompson. These short statements confirm parts of Miss Nichol’s statement although Mr Thompson states that she lived at his home at 3 Walt Whitman Close, Herne Hill with the claimants, when he didn’t have a tenant renting a room from him. This is contrary to her latest account. Neither of the men explain the references to giving Miss Campbell (and her children) notice to leave the addresses they had allowed her to live at in the past (as she told the Home Office). KM does not explain why she didn’t call the social worker back after saying that she would or why she made no further effort to contact Lambeth to assist in her grandchildren’s case. There is no evidence from any of the people who had provided accommodation to the family in 2015/2016 as to whether they could do so again.

The claimants have provided a letter dated 8^th December 2016, written by a homelessness charity Options 4 Change to the Home Office, in which the charity accepts responsibility for advising KM that she should relinquish receipt of child benefit and working tax credits because she was unable to look after her grandchildren and they were being accommodated by Lambeth.

Since 27^th February 2017 Miss Campbell has been volunteering at a charity for 2 ½ hours in the mornings Monday to Thursday.

The complaint is of procedural unfairness and of failure to take into account the diagnosis of autism. Although the defendant sought to argue that permission on the first element of the claim did not extend to a failure to make sufficient effort to contact the claimants’ grandmother or to allow her to respond to the provisional views of the assessors there is no indication in Garnham J’s decision that permission was limited to procedural unfairness in relation to the claimants’ mother only.

A child’s local authority has a duty to act with a view to safeguarding or promoting the child’s welfare and a wide discretion in discharging that duty. It is set out in Part 3 of the Children Act 1989,

The duty of a local authority to assess the needs of a child who is apparently in need is not disputed. Other uncontroversial aspects of the case are that the Framework for the Assessment of Children in Need and their Families Guidance 2000 issued under s.7 Local Authority Social Services Act 1970 and the Working Together to Safeguard Children 2015 is relevant guidance for those charged with making an assessment of a child’s needs. This guidance may only be departed from where there is good reason to do so, and its core feature is that the assessment of a child’s needs should not be an end in itself. Rather, it is a process which will lead to an improvement in the well-being of the child, and the conclusion of the assessment should result in a realistic plan of action, identifying the services to be provided, allocating responsibility for such action as needs to be taken, laying down a timetable for that action, and specifying the mechanism by which that action can be reviewed. In the case of a disabled child the assessment is divided into an initial assessment and a core assessment, following which a care plan shall be drawn up indicating how the local authority intends to meet the assessed needs of the child in question.

A number of authorities have stressed the three stages which should inform the whole process: identifying the needs of the child, producing a care plan which specifies how those needs are to be met, and providing the services which the care plan has identified should be provided.

The claimants’ mother is the principal source of information about their accommodation and the options available to them. In forming views about her credibility and reliability the defendant had to obtain information from her and assess it. Where reliable information was available from other sources it is plainly correct to include it as part of the process.

The exclusion from recourse to public funds for a parent does not prevent support by way of accommodation or other assistance to a child who is assessed to be ‘in need’ (Schedule 3 paragraphs 2 (1) (b) and 3 Nationality, Immigration and Asylum Act 2002). In essence the local authority is empowered to rescue a child in need from destitution where no other state provision is available.

A large number of authorities and previous cases have been cited to me. Useful principles are set out or expounded in the following:

Relevant to this case are the following.

The claimants’ central propositions are;

On procedural unfairness the claimants rely particularly on the Court of Appeal’s judgment in SSHD v Q [2004] QB 36 upholding Mr Justice Collins’ striking down of decisions under s.55(1) Nationality, Immigration and Asylum Act 2002 in Q v SSHD [2003] EWHC 195 Admin. In that somewhat different context, Lord Phillips said,

“90.

We do not think that the questions asked at present enabled the interviewer, let alone the decision-maker, to have a sufficiently full picture for a fair decision to be made. In light of the conclusions set out above, fairness requires the interviewer to try to ascertain the precise reason that the claimant did not claim asylum, say, at the airport or immediately after being left out of the lorry. This calls for interviewing skills and a more flexible approach than simply completing a standard form questionnaire. For example, depending on the circumstances, it may well involve the need to ask at least some questions relating to the state of mind of the claimant. That may in turn involves asking him what advice or instructions he was given by his agent or facilitator…… We recognise in this regard that it is not the court to say what questions should be asked in any particular case or how interviews should be conducted. Suffice it to say that we are in no doubt that the system are present in place does not satisfy the test of fairness.”

And later at 99,

“before the decision-maker concludes that the claimant is not telling the truth is he must be given the opportunity of meeting any concerns, as Lord Mustill put it in R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531, 560, should be informed of the gist of the case against him. We should add that we also agree with the judge that at the very least the claimant must be given the chance to rebut a suggestion of credibility as to explain himself if he can. As the judge put it …..at [20] “ All that may be needed is a warning that the account is too vague or is incredible having regard to known practices at ports but it was not reasonable to rely on advice or to obey instructions.”

The claimants have drawn my attention to passages in O v London Borough of Lambeth [2016] EWHC 937 (Admin) in which Helen Mountfield QC, Deputy High Court Judge, rejected a claim for judicial review in a s. 17 Children Act assessment case on irrationality grounds. In her decision, at paragraphs 19-21 the judge pointed out that a family resident in the UK for a number of years without recourse to public funds must have survived in some way and if the claimant failed to provide adequate details of those who had provided support and explain why that support was being withdrawn, which the local authority was bound to investigate, then, as long as she was given an opportunity to respond to the fact that there were important gaps in her evidence, those gaps could be relied upon, reasonably, to conclude that destitution was not present. At paragraph 21 of the judgment;

“In the words, if sufficient enquiries have been made by the local authority and if as a result of those enquiries an applicant fails to provide information to explain the situation which prima facie appears to require some explanation, then the failure by an applicant to give sufficient information may be a proper consideration for the local authority in drawing the conclusion that the applicant is not destitute: she per Mr Justice Leggatt in our R(MN) v London Borough of Hackney [2013] EWHC 1205 (Admin) at [44]. But that does not absolve the local authority of its duty of proper enquiry.”

Similar descriptions of the correct approach in s.17 Children Act assessment cases in the High Court are displayed in R (on the application of BC) v Birmingham City Council [2016] EWHC 3156 (Admin) and R (on the application of S and J) v Haringey LBC [2016] EWHC 2692 (Admin). The claimants submit that Lambeth rejected Miss Campbell’s evidence of destitution on the basis of inconsistencies with other evidence and a general lack of credibility without putting those concerns to her first so that she had an opportunity to respond.

The defendant argues:

In R v Westminster LBC ex p. Jaafer (1998) 30 HLR 698 Mr Justice Scott-Baker held that it was not unfair for a local authority to proceed to make a decision concerning homelessness following an interview with the applicant who had a dependent child without putting to her its view that she had achieved entry to the United Kingdom of her child and non-British husband on a false basis. The view the authority reached was rational on the information provided to it and the court concluded that there is no obligation to ‘put’ adverse conclusions before making a decision. What was required was that she be given “a full opportunity to put her version of the facts to the authorities and, having done so it was then up to them to make up their minds as to whether they could accept what she had said, namely that the representation was honest when she made it but that circumstances subsequently and unexpectedly changed.”

The defendant relies particularly on R (Ireneschild) v Lambeth LBC [2007] HLR 34 in which it says the limits of the requirement to allow an opportunity to respond before reaching adverse conclusions were delineated by the Court of Appeal. The case concerned the provision of residential accommodation for adults who by reason of their age, disability, illness or other circumstances are in need of care and attention, not otherwise available to them: section 21(1)(a) National Assistance Act 1948. An assessment of the needs of such an adult was required by s. 47(1) National Health Service and Community Care Act 1990. The local authority, this defendant, had made an adult social care assessment and during the course of gathering information had failed to put adverse conclusions to the claimant before finalising the assessment. In that case a report from a housing officer, which in essence contradicted the Claimant’s case as to how much care was needed, was not provided to the Claimant for her response before it was relied upon in the assessment. The assessment was quashed but on appeal from that decision the Court made it clear that fairness does not require that every adverse conclusion is put to the applicant before the assessment is finalised. Significant information outside the knowledge of the applicant such as from 3^rd parties unconnected to the applicant, which contradicts the applicant’s case and will have a substantial impact on the decision should not be used without giving the applicant the opportunity to contradict it but there was no requirement to put to an applicant information that originated from the applicant herself. In Ireneschild Hallett LJ said at paragraph 70,

“I consider that [the court below] imposed too onerous a duty upon the authority… this was not significant information inconsistent with that provided by the respondent obtained from a third party… it was material essentially derived from the respondent herself… To all intents and purposes, it was an internal report by one of the authority’s own officers, based on an interview with the respondent. At the time of that interview, Ms Ireneschild and her solicitors knew its purpose was to assess her needs…

At 71 and 72,

“I return to the nature and purpose of a community care assessment. It is operational and inevitably judgmental. It must be carried out quickly. I accept the appellant’s argument that a social worker preparing for such an assessment cannot be expected to engage in a detailed analysis of the material obtained (often from many sources), decide what particular points have and have not been specifically addressed by the ‘service user’ thus far, and then take steps to ensure that any points which have been missed or not sufficiently addressed are drawn to the attention of the ‘service user’ for his or her response.

Further, I consider it significant that the process specifically allows for representations to be made about the assessment after it is completed. If the assessor had got things wrong or Ms Thorpe had got things wrong, Ms Ireneschild would have been given the opportunity to point this out. I repeat that this was not a final determination of an entitlement. It was an assessment prepared as part of an ongoing process which by its very nature was capable of further review. In the normal course of events, when litigation does not intervene, an assessment is sent to the ‘service user’ and he or she can then comment. If the ‘service user’ feels their comments have not been adequately addressed they can invoke the statutory complaints procedure by virtue of the local authority social services complaints regulation… Given that background and statutory framework, in my view, fairness did not demand on the facts of this case any supplementing of the statutory procedures. The authority was not bound to consult Ms Ireneschild on Ms Thorpe’s conclusions before they placed any new reliance upon them in the assessment process.”

As the parts of the judgment set out demonstrate the key feature was that the particular assessment concerned was part of an ongoing process, capable of further review, to which the Claimant was expected to respond. The circumstances were different to this case because a s.17 Children Act assessment is the threshold over which the child must be invited by a positive assessment before the further development of any obligations recognised by the local authority can be carried out. I reject the submission of counsel for the defendant that this judgment is authority for the proposition that only information from a third party can fall into the class of information that ought to be provided to someone who is the subject of an assessment by a local authority.

The defendant also relies on R (on the application of FZ) v Croydon LBC [2011] EWCA Civ 59, which concerned an age assessment in the context of provision for the support of an asylum seeker. By s. 20 Children Act 1989 a local authority may have to decide what an asylum seeker’s age is to determine whether he is a child and if so for how long they may have to provide him with accommodation. FZ was an Iranian national suffering from post-traumatic stress disorder as a result of his experiences in Iran. He told the UK Border Agency that he was 15 years old. This was accepted and he was referred to the authority for assistance as a child in need under the Children Act 1989. Social workers interviewed him to determine his age and although they did agree he was a child, they concluded that he was 17 years of age. They relied on his physical appearance and general demeanour, his inability to provide any documents to verify his age, the fact that the age and date of birth he had given in interview were inconsistent with each other, he seemed unable to provide sufficient dates to support his version of events, he could not say when he started or finished school, was only able to estimate the ages of members of his family and he gave little information as to how he used to occupy his time, although that he said he had watched his father working but had himself little responsibility. The social workers did not put their concerns to FZ but provided him with a record of their decision. Following the assessment the he produced a vaccination card and he was then interviewed about it, but became agitated and refused to continue to discuss it. After reviewing their decision, the authority notified the FZ that the decision was unchanged. An application for permission for judicial review was refused but was granted in the Court of Appeal. Sir Anthony May (President of the Queen’s Bench Division) held that when carrying out this sort of assessment it is vital that the subject should be given an opportunity to deal with important points which may weigh against him. At paragraph 21 the court said:

“In our judgment, it is axiomatic that an applicant should be given a fair and proper opportunity, at a stage when a possible adverse decision is no more than provisional, to deal with important points adverse to his age case which may weigh against him. Obvious possible such points are the absence of supporting documents, inconsistencies, or a provisional conclusion that he is not telling the truth with summary reasons for that provisional view. In the absence of formal central government guidance, we would not be prescriptive of the way in which this might be done, and we stand aside from requiring in every case a formal ‘minded to’ letter sent after the initial interview. It is accepted that these matters should not be over- judicialised. It is theoretically possible that a series of questions appropriately expressed during the course of the initial interview might fairly and successfully put the main adverse points which trouble the interviewing social workers. But that …. would be intrinsically likely to lead to subsequent controversy in the absence of an expensive transcript of the interview… fairness could be achieved… if the interviewing social workers were to withdraw from the interview room at the end of the initial interview to discuss their provisional conclusions. They could record these with brief reasons in writing on a form by means of which, upon returning to the interview, they could put the adverse points which troubled them to the person whose age they are assessing, thereby giving him the opportunity to deal with them… We emphasise that this suggested outline procedure is not the only way in which fairness might be achieved in this respect”.

In that case the subsequent correspondence indicated that given the opportunity SZ would have been able to explain the apparent inconsistencies in his account with reference to the Iranian calendar.

Public bodies making important decisions must act fairly towards the individuals most touched by the decision. What is a fair process will depend on the situation but the aim should be to get it right first time because even the making of an assessment such as the one in this case depletes resources. This case raises a narrow point at its heart. It must be inconsistent with the aim of achieving a fair process for a public body to jump to an adverse conclusion which materially affects the decision if, on simple enquiry that conclusion may be shown to be a false one. Equally unfairness is apparent if the material upon which a decision is based takes the person concerned by surprise because he has not been made aware of it, e.g. where information is provided by a third party who is unknown to but bears against the applicant, it is naturally just to allow the applicant to deal with it if he or she can before an adverse conclusion is confirmed. Equally, it will not be necessary in every case to extend the time and resources taken in order to reach an assessment by informing the individual of provisional conclusions where the circumstances are such that the matters upon which the conclusions are based are known to the individual concerned and they have had an opportunity to deal with them. The person concerned is not taken by surprise, even if disappointed by the conclusion reached.

Inevitably the court is reluctant to second-guess the work of social workers who are in the best position to judge how to conduct the assessment and draw conclusions from the evidence available, but in this case the issue is not irrationality in the decision but fairness of the process employed given the importance of the result to the claimants. While there must be deference to those charged with the responsibility and equipped with the expertise to carry out s.17 assessments, where it is the process that is being challenged, the courts are well-equipped to measure the quality of the exercise carried out.

The focus and theme of the assessment is the presentation of the claimants’ mother. The claimants themselves are mentioned only briefly, however, this is inevitable when the reason for the assessment arose from their claim to be destitute and it is their mother who is the source of information about their resources, support and where they have lived thus far.

Permission was not given to argue that the assessment itself was fundamentally flawed by reason of irrationality. The discrete question for me is whether, on the facts it was unfair for Lambeth not to discuss its intention to make adverse findings about her probity and bona fides with the claimants’ mother when relying on her for much of the material upon which to make a decision whether the claimants were children in need? A similar although less pertinent question arises in relation to the claimants’ grandmother. In short, did each have a fair and proper opportunity, at a stage when a possible adverse decision was no more than provisional, to deal with important points which may weigh against the claimants?

Furthermore, this is not a situation such as the one considered by the Court of Appeal in FZ v Croydon [2011] EWCA Civ 59, an age assessment case. There the individual concerned may well have no idea what is going through the mind of the decision-maker when making a finding about his/her actual age. By contrast Miss Campbell cannot have been taken by surprise by any of the matters found against her. She had access to the information from the Home Office which was supplied to the defendant and she had been warned about the impact of insufficient explanation and evidence in the letters rejecting her application for recourse to public funds. The same gaps were evident to Lambeth.

Having considered the criticisms made of it with care I am satisfied that the s.17 Children Act 1989 ‘in need’ assessment reached in September 2016 was reached after a fair process not tainted by public law error because:

Lambeth’s social workers may well have a healthy degree of scepticism when a family that has been able to take care of itself without state aid suddenly requires it in circumstances which are less than clear cut. True destitution is not the same as deciding not to support a family through work, though able, but to rely on state aid. As the defendant admits, the assessment process was far from perfect, for example notes should have been kept of the meeting with AC but the defendant was entitled to ask for full information from the claimants’ mother and, indeed press for it if it was not forthcoming.In my judgment, given the history of contact between the claimants’ mother and the defendant and the Home Office, this is not a case in which the defendant’s procedure was flawed by reason of it not presenting its provisional conclusions to the claimants’ mother for her response.Accordingly, the challenge on the first ground of procedural unfairness is unsuccessful.

Turning to the second ground, the autism challenge, it is argued by the claimants that the defendant has failed in its duty to assess AC as an autistic child in need even after accepting that his formal diagnosis means that he falls within s.17 Children Act 1989.

The defendant accepts that no new written assessment has been carried out since its receipt of the autism report. However, the defendant contests the claimants’ submissions and in order to scrutinise the work done by the defendant’s social workers in this respect I have had regard to a statement from the relevant social worker Valerie Matthews who states,

“I was made aware by Ms Campbell that her son [AC] was having an assessment in relation to a possible diagnosis of autism. Ms Campbell informed me that [AC] had been referred to the Mary Sheridan Centre for the assessment. At the time of my assessment I had taken [A]’s suspected diagnosis and any potential needs arising from this into consideration. I had observed him within school and have made enquiries with his teacher and was of the professional view that [AC] did not have any needs arising from his possible diagnosis.

In my opinion if I had [AC]’s formal diagnosis of autism at the time of the assessment it would not have impacted or changed the conclusion of my assessment. Having received the report, via my legal department, I considered its contents carefully and remained of the view that [AC] does not have any needs which call for the provision of services from the local authority relating to his diagnosis. The report further evidence is that his diagnosis requires him to have additional support but this is in relation to his educational rather than any sort any needs which social care can lead and it recommends ways in him being assisted within mainstream education.

……

The diagnosis assessment report did not add to or change any of my previous assessments as [AC]’s needs in this regard, although not formally diagnosed at the time, were assessed.….”

This second ground of claim is plainly stronger. Starting from the position that the defendant accepts that AC is a child in need due to autism it appears that there has been no actual assessment of his needs as such. Indeed as observed earlier there is very little mention of either of the claimants in the September 2016 assessment and what there is does not disclose any evaluation of his needs as a child who was even then the subject of a degree of intervention by additional education support and a pending autism assessment. It is submitted for the claimants that the focus of the social workers was on whether their mother was telling the truth rather than on them. I find some support for this suspicion in Miss Matthews assertion in the 26^th September 2016 assessment that AC had ‘no communication needs’. Whilst the defendant correctly points out that the status of being ‘in need’ under the broad definition of ‘disabled’ under s.17 does not of itself give rise to an obligation to provide s.l7 support it does require the defendant to make a rational decision as to what, if any, support is necessary and appropriate to meet the child’s needs.

Miss Matthews statement highlights the fact that the diagnostic report focuses on AC’s education support needs rather than his social care needs and she asserts that she considered AC’s needs as a possibly autistic child during the s.17 assessment. However, there is no mention in the assessment of this and no specificity in her statement as to what particular features of his presentation she considered and how she reached the conclusions she did. A child in need assessment is an on-going process but there is simply insufficient evidence to persuade me that the assessment process was as rigorous as required in this respect. A response from AC’s school had not been received by the time the assessment was finalised. In the brief emailed response which has ‘Re: Urgent Welfare check for Lambeth CSC’ in the subject line AC’s teacher raises concerns he has about AC being far behind his peers academically and how he gets frustrated and shouts at other pupils in class. There does not appear to have been any follow up to the email.

The defendant does not appear to have determined at all whether if services, including accommodation, are not provided to AC he would be unlikely to achieve or maintain a reasonable standard of health and development or whether in that situation his health or development would be likely to be significantly impaired. The defendant had evidence (in correspondence at least) about the difficulties AC had had living with his mother’s friend in a crowded flat. There is no indication that this was examined with any rigour. Without speculating it is impossible to see how the work carried out so far amounts to a sufficiently wide, statutory guidance compliant, analysis of AC’s needs as an autistic child or how the formal diagnosis may impact on his accommodation needs. The defendant points out that the author of the diagnosis indicates that AC may be entitled to apply for Disability Living Allowance but does not accept that this potential entitlement indicates a possible connection between AC’s disability and his social care needs.

Looking at the 2016 assessment and the autism diagnosis holistically I am driven to the conclusion that the defendant has failed to carry out an assessment of AC as a child in need despite the indications from his mother than he had needed support and the confirmation of those difficulties in the post September 2016 autism assessment.

What degree of assistance AC properly needs, whether the defendant will provide it and whether it will include any provision as to accommodation are not matters for the court but this is self-evidently not a case in which the court can be satisfied that had a lawful assessment actually been carried out the outcome would have been the same: a determination that there were no needs at all to be met by the defendant. In the circumstances s.31 (2A) Senior Courts Act 1981 does not avail the defendant and relief will be granted.

For the reasons I have given the judicial review succeeds on Ground 2 and the defendant’s decision not to treat AC as a child in need following its assessment of 29^th September 2016 is quashed. A fresh assessment is required. The claimants must be accommodated and supported while the assessment is done unless they leave the United Kingdom with their mother.

The parties are invited to make submissions as to the terms of the Order.

If there is an application for permission to appeal written representations should be sent to the Administrative Court Office by 31^st July 2017, and I will consider that application without a hearing as well.However, time for filing an appeal notice will still be 21 days from thehanding down of this judgment.

I wish to spare the parties the trouble and expense of attending court when this judgment is handed down and I leave it to them to see whether they can agree a suitable order for costs. If they cannot, their solicitors should notify the Administrative Court Office of that by 31^st July 2017, and I will decide what the appropriate order for costs should be without a hearing on the basis of such written submissions as the parties wish to make.