J and L, R (on the application of) v London Borough of Hillingdon

These judicial review proceedings essentially challenge the Defendant’s refusal to provide housing to the Claimants. Permission was granted by Asplin LJ on 30 November 2017. She expedited the hearing. The urgency of the matter will become apparent.

The First Claimant, J, is a 27-year-old single parent caring for L, her eight-year-old son. J has a history of depression resulting from prolonged periods of abuse when she was a child. She is heavily dependent upon her family (who live locally) for emotional and practical support.

L, the Second Claimant, suffers from a range of disabilities including autism, global development delay, learning difficulties, long-standing ataxia and uncontrolled epilepsy. L receives Disability Living Allowance at the higher rate both for care and mobility. His ataxia means that he is very unsteady and he frequently trips and falls. L is prone to frequent and severe seizures without warning. His learning difficulties mean that his mental age is several years lower than his chronological age.

L has poor sleep patterns and wakes up at least five times during the night. He has a prescribed wheelchair which he uses outside. This is required when he is tired, especially after a seizure.

The Claimants currently live in a privately rented bungalow in the London Borough of Hillingdon. L’s wheelchair does not fit through the doors of the bungalow and no adjustments have been made to the building to accommodate L. There have been ongoing disrepair issues with the property, including dampness and mould. The bungalow is also in an area, near Heathrow, that is due for major redevelopment. The land surrounding the Claimant’s bungalow has been acquired for this redevelopment. The Claimants’ landlord is engaged in negotiations to sell his land, and has informed that Claimants that he will require possession of the bungalow when the land has been sold. There is, as a result, no incentive for the landlord to address the issues of disrepair or to carry out any modifications to the Claimants’ home.

The bungalow is situated next to an industrial car park by the airport which is used by commercial vehicles. There is no fence or other protective barrier between the car park and the bungalow. Cars come and go 24 hours a day, seven days a week. In front of the bungalow is a busy road. There is no safe place for the L to transfer between his wheelchair and car. As a result of his autism, L has no sense of danger and, in the past, has run out in front of approaching vehicles on the busy main road. His delayed cognitive processing means that, if he does, he is not able to respond in time to an instruction to “stop!”, thereby putting him in further danger.

J made an application to be placed on the housing register under Part VI of the Housing Act 1996 on 25 September 2015. In that application, she stated that she was a single mother with a disabled son. She provided details of L’s disabilities and also set out the problems with her current accommodation (disrepair, lack of adaptation for L’s needs and the dangers associated with the proximity of the busy road).

In late October 2015, at the Defendant’s request, J completed a medical assessment form providing further details of the range of difficulties faced by L arising from his disabilities and the impact on the current accommodation on his medical condition and needs.

On 16 November 2015, the Defendant made a decision that the Claimants had “no identifiable housing need” because it was stated that they were “suitably housed” at their current accommodation and that there were no concerns that the bungalow was overcrowded. On 3 December 2015, J asked for a review of that decision.

On 14 December 2015, an occupational therapist from L’s primary school, wrote to the Defendant’s ‘Children with Disabilities Team’ to request an assessment of L in his home in view of concerns over the suitability of the accommodation to meet his disabilities and associated needs and the safety of the environment immediately around the bungalow.

On 3 February 2016, an occupational therapy assessment was completed (“the First OT Assessment”). The First OT Assessment identified similar issues that had been set out in the report of L’s school’s occupational therapist, including L’s poor coordination, his tendency to lose his balance and his uncontrolled and unexpected seizures. The First OT Assessment also noted that L’s poor sleep was being made worse by the bungalow’s location adjacent to the car park and associated vehicle movements. It also raised concerns about the safety risks posed to L given the bungalow’s location next to a busy road. In particular, it noted the risk to L when transferring from the house to the car (and back).

The First OT Assessment made a series of recommendations:

The Defendant considered the First OT Assessment but, on 11 April 2016, it maintained its decision that the Claimants had no identified housing needs and stated the following:

J did not have access to legal advice at the time of this decision.

On 27 February 2017, J reapplied to join the Defendant’s housing register as the family’s accommodation situation remained difficult. She explained that L needed a level access property to enable easy transfer to and from the house when in his wheelchair. J again explained that the bungalow’s location next to the busy car park posed a danger to L who, on occasions, had run into the road because he had little awareness of his own safety.

The Defendant did not respond to J’s renewed application. J then sought legal advice.

On 3 April 2017, the Claimants’ solicitors sent a letter before claim to the Defendant complaining that the failure to deal with L’s urgent need for safe and appropriate accommodation was a breach of their duties under both Parts 6 and 7 of the Housing Act 1996. The letter also contended that the Defendant was in breach of the duties that it owed to L as a children’s services authority and stated: “The family desperately needs a suitable home, and support, both to assist them in managing their current home and long term, to ensure that [L’s] multiple needs are met and that his mother has support with his care and her own needs”. The steps that the Claimants’ solicitors required the Defendant to carry out were identified as follows:

On 18 April 2017, the Defendant confirmed by letter that it determined J’s application but had again assessed J and L as “having no identified housing need” because they lived in a two-bedroom bungalow which met their needs for two bedrooms and that they had access to a garden. The decision letter stated that the housing application had relied upon medical evidence and the First OT Assessment both of which had been considered previously and that there had been no change in J and L’s circumstances.

That same day, and apparently unaware of the negative decision letter, the legal department of the Defendant also wrote to the Claimants’ solicitors to state that J’s housing application was “currently being processed” and had been “passed onto [sic] a medical advisor”. Assurance was given that as soon as the medical opinion was received the housing department of the Defendant would liaise with the children’s services department to establish whether the further information needed to be taken into account. It was anticipated that a response would be provided within 2-3 weeks. As to J’s contention that she was homeless, the Defendant responded that as she had not yet received any notice to quit she was neither homeless nor threatened with homelessness. Nevertheless, her claim that it was, in the particular circumstances, unreasonable for her to continue to occupy the bungalow would be considered by an officer in the housing department.

Also on 18 April 2017, the Defendant provided J with a copy of a second occupational therapy report (“the Second OT Assessment”). This report corroborated the concerns that J had raised in her housing application, namely that L had no sense of danger, had run off at times “posing a large risk with the lorries” and had “run in to the road and away from his mother”. The long-term recommendation of the Second OT Assessment was for the family to move to a 2-bed flat with level access shower.

By an email dated 3 May 2017, the Claimant’s solicitors sent copies of the 18 April 2017 negative housing decision and the Second OT Assessment of the same date and requested the Defendant carry out a review of the housing decision. No response was provided to this email.

There was substantial pre-issue correspondence, but, on 6 July 2017 these proceedings were issued. That same day, the Defendant provided to the Claimants a child and family assessment (actually dated 5 June 2017) (“the C&F Assessment”). The C&F Assessment is a principal target in the Claimants’ judicial review application, so I need to set out, in some detail, what it said.

The reason for doing the assessment was recorded: “This request was made for an assessment as part of [a] housing application for [J] to be provided with an alternate accommodation as she was of the opinion that he current home does not meet the needs of the family.” It is important to note from this that it was recognised that (a) the focus of the concern was the Claimants’ accommodation (rather than any concerns over J’s ability to care for L); and (b) the report was likely to be used by the housing department as a significant evidence base for its decision on J’s housing application.

In preparing the report, the social worker had conducted home visits to speak to J and to observe L at home. It was clearly acknowledged and understood that L was a child in need (within the terms of s.17 Children Act 1989) as a result of his disabilities. In particular it was noted:

In the section dealing specifically with housing, the following was recorded in the C&F Assessment:

“The family has been living at their current residence since 2013 which is privately rented. The family’s residential unit consists of a 2-bedroomed bungalow with kitchen, bathroom and living area. There is also a garden within the property. There is a ramp which enables wheelchair access to the home. [J] is of the opinion that the house cannot meet the needs of the family and requires adaptations, especially in the bathroom. She has approached her landlord, who has advised her that he plans to sell the house and was currently in negotiations with the developers for a selling price. She advised that this state of affairs had resulted in reluctance to adapt the property on the part of the landlord as he felt that this was a wasteful expenditure.

[J] stated that she since approached the Local Authority who had advised her that, for adaptations to be commissioned, she had to apply for a Disabled Facilities Grant (DFG). [J] is however, not eligible to apply for the DFG as it is only available to fund adaptations when the disabled person will continue living in the property for the next 5 years.

[J] indicated that the reluctance of her landlord to carry out the necessary adaptations and her ineligibility to apply for DFG had resulted in the following risks;

Access

The home is not fenced and is adjacent to a drive way used by an airport car park company. The location of the house, coupled by the fact that [L] has no danger awareness poses a health and safety risk for [L]. [J] advised that she had been nearly run over by a speeding vehicle in the past and her cat was run over some years back. [J] has to manage this risk on a daily basis, as supervising [L] is a parental responsibility that a parent of any 7-year-old child is expected to manage.

Bath

Information obtained from Occupational Therapist report dated 03/02/2016… indicates that [L] is not able to access the bath independently. The report further indicates that, in the past, [L] has experienced multiple seizuers in the bath. This therefore means that [L] is not able to develop any independence in bathing due to the potential risk of drowning due to a seizure.

According to the Occupational Therapist report, this risk can be best managed by the provision of a level access shower as it would reduce the risk of drowning due to a seizure and increase independence to manage his personal care needs. This course of action cannot be pursued because [J] is not in a position to secure a 5 year lease which will enable her to apply for the Disabled Facilities Grant (DFG) to fund the adaptations recommended by the Occupational Therapist.

Under the current circumstances to minimize the risk during an epileptic seizure, [J] ensures that she bathes [L] and ensures that he takes his medication as prescribed. [L] has been seizure free since March 2015.

Noise

The home is close to a commercial airport car park that is in uses 24 hours a day. [L] is on the autistic spectrum and [J] indicated that the noise produced by the vehicles and the heavy duty gate constantly create sensory discomfort for Lucas. However, the Occupational Therapist report does not make reference to the fact that any sensory discomfort can be suffered as a result of the sound produced by moving vehicles outside the family home.

In this section, the author also noted that J had made a housing application under Part VII of the Housing Act (homelessness). Subsequently, the Defendant refused to accommodate the Claimants under Part VII, finding that they were not “homeless”. That decision is being appealed to the County Court. This separate decision is not strictly relevant to the decision the Court has to make on this application for judicial review. I have noted it because it has been referred to in the submissions that have been made by the parties and I deal with it, briefly, below (paragraph 76).

There next follows a section headed “What are you worried about?”. Counsel are agreed that the “you” in this question is directed to the social worker who is writing the report. From the structure of the form, that appears to be correct. The following is recorded:

In the section “Recommendations and Decisions”, the following is recorded:

“[J] has the parental capacity to adequately meet [L]’s bio-psychological needs without formal support… It is recommended that the case be closed to social services.”

The final section of the C&F Assessment included the “C&F Plan”. In tabular form, this records the identified risks, desired outcome, the action to be taken (by whom and when) and how it will be known that the outcome has been achieved. Relevant to this case are the following entries:

The letter that is referred to by the social worker (see paragraph 27(iv) above) was dated 5 June 2016 (which appears to be a mistake for 2017). The two documents were ultimately sent to the housing department so it is important to read the two together fully to understand the social worker’s assessment and recommendations. The important parts of the letter that accompanied the C&F Assessment are:

“Kindly be advised that I have completed a Child and Family Assessment in respect of [L]. [L] has a diagnosis of autism and the following information was obtained from [J] with regard to her housing situation.

a)

The home is close to a commercial airport car park that is in use 24 hours a day. [L] is on the autistic spectrum and [J] indicated that the noise produced by the vehicles and the heavy duty gate constantly create sensory discomfort for [L].

b)

The home is not fenced and is adjacent to the driveway used by an airport car park company. The location of the house, coupled by the fact that [L] has no danger awareness poses a health and safety risk for [L]… [J] however, has to manage this risk as supervising [L] is a parental responsibility and an expectation.

c)

[J] advised that it was getting increasingly difficult for her to bath [L] because she had to carry him into the bathtub at all times. [J] stated that [L] refuses to make use of a plastic platform to enable him to get into the bathtub. In view of this she advised that there was need for adaptations in the bathroom…

The reluctance of the landlord to make adaptations to the property coupled by the fact that the OT team will not commission the adaptations for reasons stated elsewhere in the presentation has resulted in a situation that makes it difficult for [J] to attend to [L]’s self-care needs. In view of these unique mutually reinforcing factors, may your department possibly re-open the housing application in respect of [J].”

It is not clear to me whether the author of the C&F Assessment fully appreciated the position of J’s housing application. He correctly noted in the C&F Assessment that J was pursuing an application for housing under Part VII (homelessness), but reference to her participating in the “bidding process” tends to show that he thought that she was also eligible for consideration for (re-)housing under Part VI as well. Following the Defendant’s decision of 18 April 2017 - that the Claimants had “no identified housing need” - the Claimants were not eligible for any housing provision and so could not participate in any “bidding process”. However, in the 5 June 2017 letter, he asked the housing department to “re-open” the housing application, which suggests that he was aware that [J] had been refused housing and he was asking the housing department to reconsider that decision in light of the C&F Assessment. What is clear, however, is that the social worker envisaged that the risks to L identified in the letter and the C&F Assessment were to be addressed by the (re-)consideration of her housing application.

On 15 June 2017, the Claimants’ solicitors emailed the Defendant’s legal department to complain that they considered that the Defendant was failing to take a “holistic” approach to the consideration of L’s needs and welfare by “compartmentalising” the decision-making into “housing” and “social care”. It is to be remembered that, when they made this complaint, the solicitors had not yet seen the C&F Assessment.

On 16 June 2017, the Defendant’s legal department responded:

“You have stated that it is not possible to separate the Housing and Social Care aspects of the case and that the Local Authority should take a holistic view. I can confirm that this is in fact happening in that the decision-making officer for Housing continues to consult with the Social Services and will consider the reports prepared by the Social Services Department in order to reach a s.184 decision and a decision concerning [J’s] housing register application. In doing so, the Local Authority is having regard to [L’s] welfare and complying with its duties under s.11. My client does not believe that the ‘compartmentalisation’ of the issues into Housing and Social Services is artificial. The Children Act assessments can only be completed by a suitably qualified social services officer and the housing decision can only be made by a suitably qualified housing officer. The decision of the housing officer will be informed by consultation with the social services officer but that does not change the nature of the decisions or mean that two separate functions have been or must be combined and, on the contrary, your client’s requested outcomes can clearly be separated into the Social Services and Housing categories… As stated above, and for the avoidance of doubt, the separation of functions does not mean that there is not co-operation between the departments and I would confirm that this co-operation is ongoing.”

On 13 July 2017, a medical assessment was completed by a doctor (“the Medical Assessment”). He had been forwarded the 5 June 2017 letter (see paragraph 30 above) together with the C&F Assessment. He was asked to assess whether the Claimants’ current accommodation was suitable. The doctor did not meet J or L (or visit their home) before providing his report. According to the report, he did have the First OT Assessment, but no reference is made to it. Despite being requested to provide a medical assessment, the doctor opined:

“I’m surprised to see [the 5 June 2017] letter requesting rehousing, which seems somewhat at odds with her (sic) own full C&F report of 5 Jun 2017 in which she (sic) states: ‘the actual property seems appropriate as per Housing team’s description’. I therefore think her letter may pose a risk of unhelpfully raising expectations.

Regarding her specific points:

(a)

I acknowledge that traffic and other noise may be disturbing, but I can’t find anything to indicate it is intolerable for him, and seems unavoidable in an urban borough close to Heathrow.

(b)

maintaining any child’s safety on a road remains a normal parenting role

(c)

I recommend use of a bathboard and seat, or other aid to facilitate bathing…

In summary, it remains my view that the current accommodation is suitable on specific medical grounds.”

The housing department of the Defendant duly re-considered J’s application for housing. It was refused. The decision letter dated 20 July 2017 (“Decision Letter”) included the following:

“RE: LONDON BOROUGH OF HILLINGDON HOUSING REGISTER – NO IDENTIFIED MEDICAL AND HOUSING NEED

I am writing to let you know that your application has been assessed in accordance with the Housing Act 1996 Part VI as amended by the Homelessness Act 2002 and the Council’s Allocation Policy.

Based on the information you submitted on your application, Children and Family Support Plan and the further enquiries we have made, you have been assessed as having no identified medical or housing need. This means you have not been awarded medical banding and you have not been registered for Social Housing.

The medical adviser has advised on the specific concerns raised:-

a)

I acknowledge that traffic and other noise may be disturbing, but I can’t find anything to indicate that it is intolerable for him, and seems unavoidable in an urban borough close to Heathrow.

b)

maintaining any child’s safety on a road remains a normal parenting role.

c)

I recommend use of a bathboard and seat, or other aid to facilitate bathing.

In summary it remains the medical advisers (sic) view that the current accommodation is suitable on specific medical grounds.

Further your landlord… was contacted on 13^th July. He stated he has no plans to sell the property and he has not been approached regarding a redevelopment of the area. [The landlord] advised he is willing to do everything within his means to ensure the property is safe for you and [L] to occupy. He has confirmed he is willing to engage with Social Services to consider adapting the property so it can meet you and [L]’s needs.

The bathroom has an overhead shower installed which you are able to use to assist with [L]’s bathing and to ensure the plug is removed.”

I understand it to be common ground that reference in the Decision Letter to the “Children and Family Support Plan” is a reference to the C&F Assessment. As can be seen, the decision-maker has simply copied parts of the Medical Assessment into the Decision Letter. No further reference is made in the Decision Letter to the C&F Assessment or either of the OT Assessments.

Under challenge in this application for judicial review are the C&F Assessment and/or the Decision Letter and the finding that the Claimants had “no housing need”.

Following the grant of permission by Asplin LJ, the grounds relied upon by the Claimants are as follows:

Section 166A Housing Act 1996, so far as material, provides:

The Defendant’s allocation scheme is contained in its Social Housing Allocation Policy (December 2016) (“the Housing Policy”). This provides, so far as material:

Section 17 of the Children Act 1989 provides, so far as material:

Section 11 of the Children Act 2004 provides, so far as material:

Guidance pursuant to s.11(4) was issued in March 2015: “Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children” (“The Working Together Guidance”). The Working Together Guidance requires that it “should be complied with unless exceptional circumstances arise” (paragraph 5). Mr Wise QC, for the Claimants, has referred me to a number of sections in the guidance. The following appear most relevant:

It is clear, not only from the guidance itself, but from authorities that the duty under s.11 applies to the local authority as a whole not just its social services department. In Nzolameso –v- Westminster City Council [2015] UKSC 22; [2015] 2 AllER 942; [2015] PTSR 549; [2015] HLR 1, the Supreme Court considered the nature and extent of the s.11 duty. Baroness Hale gave the judgment for the Court:

The judgment recognised that local authorities had scarce resources and that they often faced very difficult decisions as to the allocation of those resources. That “invidious task” was given to the local authority, not to the Court, but it was incumbent on each authority to demonstrate clearly its decision-making process.

More recently, albeit in a different context, Baroness Hale clarified that the s.11 duty requires that the welfare of the child be “actively promoted” (R (HC) –v- Secretary of State for Work and Pensions [2017] UKSC 73; [2017] 3 WLR 1486) [46]:

“In carrying out [a] review, the local authority will no doubt bear in mind, not only their duties under section 17 [of the Children Act 1989] , but also their duty under section 11 of the Children Act 2004 , to discharge all their functions having regard to the need to safeguard and promote the welfare of children, and their duty, under section 175 of the Education Act 2002 , to exercise their education functions with a view to safeguarding and promoting the welfare of children. Safeguarding is not enough: their welfare has to be actively promoted.”

In R (E) –v- Islington LBC [2017] EWHC 1140 (Admin); [2017] ELR 458 the Court considered the practical requirements of a local authority demonstrating, by evidence, its decision-making process. In that case, the issue arose as to the lawfulness of the local authority’s decision under s.11(2)(b) Children Act 2004 to delegate educational provision for a child in need to another local authority. The decision, however, would apply equally to the duties imposed under s.11(2)(a). Deputy Judge Ben Emmerson QC, applying Nzolameso, held:

Mr Wise QC, for the Claimants, submits:

For the Defendant, Mr Hutchings QC contends that both the C&F Assessment and the subsequent Decision Letter are lawful. He submits:

My starting point is to have clearly in mind the role of the Court when judicially reviewing the decision(s) of the Defendant. Decisions in relation to the provision of housing are to be made by the Defendant. They must be lawful (in the judicial review sense), but as Briggs LJ noted in Haque (paragraph 47(vii) above), the scarcity of resources requires “tough and, on occasion heart-breaking decisions.”

Here the decision was “no”. The issue is whether that decision was reached lawfully. Given that I am here dealing with the interests of a disabled 8-year-old who is living in accommodation in relation to which at least two serious risks to his well-being have been identified, the assessment of whether the decisions were lawful would require the sort of intense scrutiny to which Lord Wilson referred in KM (see paragraph 48(ix) above).

I turn first to consider the C&F Assessment. When doing so, I accept Mr Hutchings QC’s submission that the author was a social worker, not a lawyer, and I must not impose a standard that is ‘too exacting’.

The first thing to note is that the social worker was clearly aware that the purpose of the report was to assess J and L “as part of” their application to be rehoused. The central issue, so far as J was concerned, was the unsuitability of her current home and the risks it presented to L. Indeed, but for the expression of these concerns, it is unlikely any assessment would have been made at all. There were, for example, no concerns about J’s willingness and ability to care for L.

In the C&F Assessment, the social worker was clear that, because of his disabilities, L faced two identified health and safety risks; the risk of drowning in the bath (arising from the risk of his having a fit whilst in the bath) and the risk of his being knocked over on the busy road outside his house; a risk that was at its greatest when L was being transferred from his home to the car. As the social worker noted, these risks had been previously identified in the First OT Assessment (see paragraph 11 above). An issue concerning the road noise and L’s heightened sensitivity to such noise as a result of his autism was also noted, but the principal (and immediate) risks to L were the two that I have identified.

Ways of addressing these two main risks were considered in the C&F Assessment. The conclusion was that adaptations to the bathroom were not a viable option because J would not qualify for a Disabled Facilities Grant and the landlord had refused permission for such work to be carried out in any event. As regards the risk presented by the busy road, the only solution that was identified was parental supervision.

Mr Hutchings QC correctly notes that the social worker concluded that the identified risks were “tolerable” and he submits that is a conclusion that was plainly open to the social worker on the evidence. I agree that this was a conclusion that the social worker could reach, but, in doing so, it is very important to concentrate on two things: first, properly understood (from the C&F Assessment as a whole), what did “tolerable” mean and what did the social worker recommend (or thought would happen) in light of that “tolerable” risk?

The relevant passage is set out above (paragraph 27(iv)) and I will not set it out again. What is clear, in my view, is that the author clearly thought that the risk to L was only “tolerable” as a temporary measure. It was tolerable only pending alternative accommodation. In the meantime, the only identified way of mitigating or eliminating the risk was supervision by J. In respect of L’s bathing, that was recognised as not being a long-term solution because the constant supervision that it required would mean that L would not be able to develop the independence in personal care that otherwise would be an important objective in his development. Likewise, the risk presented by the road was constant. The supervision required by J to eliminate or mitigate that risk would be one of ceaseless vigilance when L was being transferred to the car or whenever he was near the road. Given that L had been assessed as “being challenging in different settings”, “very active” and that he had limited understanding of danger, the sort of parental supervision that would be required of J went well beyond that which could be expected of the parent of a 8-year-old without L’s disabilities. By analogy, if parents had an unfenced cliff edge at the end of their garden, one way of managing the risk of their child falling off the cliff would, no doubt, be parental supervision. However, given the risk of human error or even a moment’s inattention by an otherwise diligent parent, it would be no substitute (on anything other than a short-term basis) for adequately fencing off the cliff edge. That was the position with J and L, and I am satisfied that the social worker appreciated that and was making his recommendations accordingly.

That conclusion seems to me to be fortified by the conclusion that J and L’s housing situation was not of “such urgency that it would require action outside the usual housing application and bidding process”. That is a recognition that there was a problem that needed solving, but that it was not of such pressing urgency that it required intervention through, I infer, the s.17(6) Children Act 1989 route. The reason that it was not of such urgency was that the social worker considered that the housing need was going to be assessed by the housing department.

I recognise that the social worker made a genuine assessment of the risks that presented to L, but I do think that the C&F Assessment is open to justifiable criticism in two key respects:

I have considered whether I am ‘nit-picking’ or making unrealistic expectations in criticising these aspects. I am satisfied that I am not. These are practical issues that should occur to any social worker. At its heart, a s.17 assessment requires an analysis of what (if anything) requires to be done, when and by whom (cf. R (J) –v- Caerphilly County Borough Council [2005] 2 FLR 860 [45]). The housing issue was the source of the risks that were identified as threatening the welfare of L. If the social services department was not going to deal with the issue itself (as it was not), then in reality the “action” in the C&F plan to address this was going to reside, in the first instance, with the housing department. My criticism of the C&F Assessment is not that these things were not identified (apart from the failure clearly to identify the “action” that was being allocated to the housing department); it is that their importance was not clearly communicated to the housing department. That was a failure of co-operation to deliver an integrated approach.

In some respects, the letter of 5 June 2017 that accompanied the C&F Assessment potentially made the position worse. Although it recognised and flagged, clearly, the nature of the risks faced by L, and asked the housing department to reconsider the application for housing, it did not make plain that the solution of parental supervision was only regarded as a temporary measure.

A particular feature of this case is the impression that has been created that, contrary to the letter of 16 June 2017 (see paragraph 33 above), the Defendant was compartmentalising the decision-making. Mr Wise QC submitted that the C&F Assessment was “passing the buck” to the housing department. I think that characterisation is unfair, but I do think that the social services department saw the solution as lying within the housing department’s remit.

When assessing compliance against the Working Together Guidance, the Defendant is entitled to say that the Court should look at the whole process, not just the handling of particular decisions. I accept that. But it seems to me that, at this stage, I can identify, now, areas of concern regarding the C&F Assessment’s compliance with the Working Together Guidance and then return to consider whether later developments alleviate or remove those concerns. They are, as follows:

The Medical Assessment (see paragraph 34 above) was very unimpressive. It may well be that the doctor thought that the Claimants did not qualify under Paragraph 12.4 of the Housing Policy (see paragraph 40 above). The only medical issue that had been raised in the C&F Assessment was L’s heightened sensitivity to noise, but even this was not investigated properly. The doctor should have limited his opinion to stating, if that was his view, that L did not qualify for housing allocation under Paragraph 12.4 on that ground. Instead, he included his views of the points raised in the 5 June 2017 letter. Only the first of those was within his expertise, and the other two were superficial responses to issues that had no medical dimension and upon which he should not have been commenting upon at all. Unfortunately, the Medical Assessment was later to have a significant impact on the ultimate housing decision.

The C&F Assessment, the letter of 5 June 2017 and the Medical Assessment were then considered by the housing department in its reconsideration of whether the Claimants had any housing need.

I have reached the very clear conclusion that the Decision Letter of 20 July 2017 suffers from very serious defects.

It appears to me that this letter is wholly superficial and has simply failed to engage adequately (or at all) with the risks to L arising from his housing that had been identified in the C&F Assessment. That may be because the decision-maker did not grasp the nature and extent of the identified risks or the recommendations made in the C&F Assessment. In this respect, she may well have been led into error by the summary given in the letter of 5 June 2017, the inadequate assessment of the risks in the Medical Assessment and/or the failure of the C&F Plan to identify housing as a key source of risk to L and how it was planned to address that risk in anything other than the short-term. Those errors would likely have been avoided if there had been proper co-operation and discussion between the social services and housing departments. The Decision Letter fails, completely, actively to promote the welfare of L. If it were to be suggested that it was no part of the housing officer’s role to make decisions about the welfare of L (and even were that correct), that simply serves to demonstrate the dangers of compartmentalising the process.

I noted above (paragraph 63) that, when evaluating whether the Defendant had carried out an appropriate assessment of L’s needs under s.17, it might be necessary to look at the whole of the process, of which the housing decision is an important part. Standing back, the Decision Letter does nothing to improve the position. Following despatch of that letter, the stark reality is that the Defendant had no plan in place for addressing and meeting L’s identified needs. Given that social services had closed their file, it also appears to have had no internal mechanism even to recognise that this was the position. Had the process been properly integrated and holistic, the negative housing decision would have been picked up as important – because it left L’s identified needs unaddressed - and referred back to social services for further consideration. The Defendant failed to provide a mechanism allowing the situation to “be reviewed regularly to analyse whether sufficient progress [had] been made to meet [L’s] needs and the level of risk faced by [L]” (paragraph 55 in the Working Together Guidance).

Insofar as the Decision Letter is relied upon as demonstrating compliance with s.11 duty actively to promote the welfare of L, it fails completely. It does not even recognise it as a factor in the decision-making. There is no other evidence of consideration of s.11 at this stage. The statements in the letter of 16 June 2017 that there was co-operation between the departments and that the housing officer would consult with the social worker before making the housing decision are mere assertion. It is impossible to tell from an objective evidence-based analysis (Nzolameso [31]-[32]; and R (E) –v- Islington LBC [113]-[114]) whether the Defendant has properly fulfilled its statutory obligations. The evidence, such as it is, suggests strongly that it has not. The Defendant cannot “demonstrate by reference to written contemporaneous records, the process of reasoning by which it reached its decision”.

The same can be said about the consideration of the Housing Policy. It appears that the Defendant did not assess J’s application by reference to the hardship grounds in Paragraph 12.6 of the Housing Policy (see paragraph 40). There is no evidence that the “panel of officers (Hardship Panel)” had undertaken a review “to determine whether priority for re-housing is necessary”. That is the case even though Paragraph 12.6 of the Housing Policy notes that “a combination of factors [can] make the need for re-housing more urgent than when considered separately” and the 5 June 2017 letter to the housing department accompanying the C&F Assessment expressly referred to the “unique mutually reinforcing factors” that the social worker thought should be considered.

Mr Hutchings QC for the Defendant submitted that the Claimants are not attacking the lawfulness of the Housing Policy and J’s housing application would not have qualified under Paragraph 12.6 of the Policy. That is correct, but the short answer to that point on this judicial review application is that there is no evidence that the decision-maker considered the issue at all. There is nothing for me to “scrutinise intensely”.

The category against which J’s application would seem to need consideration is “other urgent welfare reasons”. I asked Mr Hutchings QC whether the duty imposed by s.11 Children Act 2004 required the Housing Policy to be interpreted in a way that, so far as possible, was consistent with that duty. He submitted that s.11 had no role to play in this situation. He relied upon Nzolameso[25] to support that submission. I do not need to decide the point, but I am not convinced that s.11 does not have a role to play here. An assessment of “other urgent welfare reasons” is an evaluative exercise, not a factual decision. If a local authority, acting collaboratively through its housing and social services departments, carries out a s.17 assessment and identifies housing as a critical issue in relation to the welfare of a child in need, then, consistent with the Working Together Guidance, arguably it needs to devise a coordinated and holistic plan as how that need is to be addressed. If the authority’s allocation policy (under s.166A Housing Act 1996) has a broad category such as “other urgent welfare reasons” then, given this requires for subjective assessment and evaluation, it seems to me also arguable that s.11 has a very real role to play in the housing decision particularly in light of the need actively to promote the welfare of the child in need (cf. Nzolameso [26]).

Judged against (a) the needs of L, (b) the C&F Assessment, and (c) the OT Assessments and the identified risks, there is force in the submission by Mr Wise QC that the Defendant’s decision that L had no welfare need is irrational. Again, I do not need to decide that point because the decision-making is flawed by the failure properly to consider the issue.

In his submissions, Mr Hutchings QC suggested that the Claimants were asking the Defendant to provide accommodation under s.17(6) Children Act 1989. They were not. That stage has not (yet) been reached. Analysed properly the sequence of events was:

That process of decision-making does not risk “turning the social services department of the local authority into another kind of housing department” (G [93]). Appropriately carried out, it enables the proper identification of risk and the welfare needs of L by way of s.17 assessment, enables the Defendant to assess the appropriate way of addressing those needs and risks, and recognises that housing provision under s.17(6) is a measure of last resort reserved for exceptional cases (G [141]). For the reasons I have explained, I have decided that stage (ii) has not been carried out properly by the Defendant (partly as a result of defects in the C&F Assessment and/or the ineffective communication of its recommendations) and stage (iii) has not been carried out by the Defendant at all in the decisions under review.

Mr Hutchings QC submitted that the Court should not overlook that the Claimants have applied for housing provision under under Part VII on the basis that they are “homeless” within the terms of the Act on the footing that it is not reasonable for them to continue to occupy their current acommodation. Mr Wise QC has made the point that, even if they were successful with such an application, the Claimants would only be entitled to temporary accommodation. But the more powerful submission is that the Defendant has, in fact, turned down the application under Part VII. Legally, the decisions under Part VI and Part VII fall to be assessed separately (indeed there are different routes of challenge) so the fate of the Part VII application does not have a bearing on this judicial review application, save perhaps in one potential respect. Had the decision on Part VII been favourable, it might have had an impact on the s.17 point. If the Part VII accommodation resolved the identified risks to L’s welfare, then the Defendant might well have been able to demonstrate compliance with s.17 (at stage (iii) above). But at each stage, the Defendant would have had to keep L’s welfare needs under review. Temporary accommodation may have presented new problems and so might not, ultimately, have provided the answer. The short point, however, is that, the Part VII application having been refused, these issues do not arise.

As agreed at the hearing, I will invite submissions from the parties as to the appropriate form of order consequent on this judgment.