AE, R (On the Application Of) v London Borough of Brent

This is the final hearing of the Claimant’s application for judicial review, permission having been granted on two grounds by Karon Monaghan QC, sitting as a Deputy High Court Judge, on 18 July 2018.

The claim was issued on 10 May 2017. Over the course of the proceedings, the issues between the parties have narrowed; the Claimant now identifies the questions for the Court as follows:

When giving permission, Ms Monaghan QC also made an anonymization order, directing that the identities of the Claimant and her children should not be disclosed in any Court documents or Judgments. With this in mind, I have referred to the children as “X” and “Y” in this Judgment and have sought to avoid giving unnecessary detail regarding the Claimant’s criminal conviction.

The Claimant is the mother of two sons; her eldest (“X”) was born on [a date in] 2008, and is now aged 9, her youngest son (“Y”) was born on [a date in] 2013 and is now 5 years old. The Claimant has lived in Brent for some 13 years and her immediate family live in the borough. Her children have been brought up in Brent and both now attend a local primary school.

In 2014, the Claimant was sentenced to 28 months and 7 days’ imprisonment in respect of a terrorist related offence, seemingly at the instigation of her then husband, who had left the UK in 2013 to support a jihadist cause.

The Claimant was first released from prison on 8 July 2015 but recalled after breaching the terms of her licence and returned to custody until 9 September 2016. Upon her release, she was initially subject to probation supervision and she has a continuing obligation to report to counterintelligence on a regular basis and is prohibited from accessing social media.

When the Claimant was in prison, her children lived with their maternal grandparents; an arrangement that continued after the Claimant’s release, albeit she always intended that they would return to live with her once she had secured appropriate accommodation. Upon her initial release in July 2015, the Claimant joined her children at her parents’ home and, whilst there, made an application to the Defendant’s housing department; the view was taken, however, that the Defendant owed the Claimant no duty under the Housing Act 1996 as she had made herself intentionally homeless when she abandoned her previous accommodation while serving a prison sentence. When released in September 2016, the Claimant approached the Defendant’s housing department once again, but it declined to re-consider her application, although the Claimant was provided with temporary accommodation for the period immediately following her release. That temporary accommodation was provided solely for the Claimant and had ceased by the time of the claim in these proceedings, at which point the Claimant was homeless.

Meanwhile, it seems that the Defendant’s housing department referred the Claimant’s case to social care, which, through its children’s services team, accepted that X and Y were children in need for the purposes of section 17 Children Act 1989 and agreed to provide assistance to the Claimant in her efforts to look for suitable and affordable accommodation for the family; it was further agreed that financial assistance would be made available, up to £5,000, should the Claimant need a deposit to secure a particular property.

Given the nature of her offences, the Claimant was subject to a multi-agency protection agreement (“MAPPA”) and the Defendant has said that it continued to consult with other agencies in relation to its attempts to assist the Claimant secure private sector accommodation. Having initially identified two one-bedroom flats in south London (both unsuitable given the size of the accommodation), on 8 March 2017 the Defendant made two offers to the Claimant of two-bedroom properties, one in Kidderminster and one in Dulwich. The Claimant rejected these offers as unsuitable given the distances of each property from the Brent area, where her only support network was located - of particular importance given the ties her children had to their maternal grandparents and aunt and given her own vulnerabilities.

It is unclear precisely how the Defendant had assessed these offers to be suitable given that no Child and Family Assessment (“CFA”) had been carried out at that stage and the evidence I have seen from the Claimant’s former probation officer (set out in an email of 17 December 2016) suggests that other agencies attending MAPPA meetings with the Defendant had “made clear that it would not be in the children’s best interest to be moved so far away from the only support network (i.e. [the Claimant’s] family) given all the issues that they are experiencing and the fact that it will leave her vulnerable to further extremist exploitation should she be moved to an area where she has no support.” It seems the Defendant had initially considered the possibility of an even more distant location and this observation may have been directed to that, but both offers would still have involved a journey of over an hour from the Claimant’s parents’ home and X’s school (the Kidderminster property was between 3-4 hours’ away; the Dulwich accommodation around 1 ½ hours).

The concerns raised by other agencies in the MAPPA meetings reflect the conclusions reached in earlier reports, both in relation to the children (the Crown Court having ordered a pre-sentence report from a Dr Sharon Pettle, Consultant Clinical Psychologist, which discussed the traumatic impact of events on X and Y), and the Claimant (a Psychologist’s report having been undertaken for the National Offender Management Service before her release, regarding the potential risk of the Claimant re-offending, and advising of her potential vulnerability to external influences if she was isolated, without the support of stable family relationships).

The Defendant first undertook a CFA in April 2017, apparently at the instigation of the Claimant’s then solicitors, who specifically raised the issue of the Claimant’s vulnerability, stating she was “heavily reliant on the support of her family and friends as she is at risk of being radicalized again”, and highlighted concerns about X’s psychological development. Although the April 2017 CFA records the concerns of the probation service that the Claimant was “vulnerable” and “susceptible to extremist views and re-offending if she accepted accommodation outside of London”, these matters do not feature in the Defendant’s recommendations and it was noted that there were no actual restrictions on the Claimant’s place of residence. As for X and Y, there were no safeguarding concerns while they were living with their grandparents, although it was noted that both children were reported to suffer separation anxiety and it had been recommended that X be referred to Child and Adolescent Mental Health Services. Whilst recording the Claimant’s concerns about the lack of stability for her children and her desire that they be housed together, near her family, the Defendant considered she was unlikely to find suitably sized, affordable accommodation in the Brent area (noting that the Claimant was dependent upon state benefits). Although the Claimant’s support network in Brent was acknowledged to be important, it was concluded that it was reasonable to continue to offer accommodation options outside London, with the Claimant staying in regular contact with her family by telephone, messaging or social media. It was recommended that the Claimant be made “one final offer of suitable and affordable accommodation anywhere outside of London under section 17 Children Act 1989 to end the cycle of homelessness”. Should that offer be declined, the CFA concluded that “Brent Social Care will discharge its duty and [the Claimant] will be encouraged to make alternative arrangements to source her own accommodation”.

Following the CFA, and apparently pursuant to its recommendations, on 18 April 2017 the Defendant made a further offer of a two-bedroom flat, this time in Great Wryley, South Staffordshire; this was over 3 hours from the Claimant’s parent’s home and X’s school and was also refused by the Claimant.

On 10 May 2017, the Claimant issued the current proceedings, which included an application for urgent interim relief. That application was considered the same day by Green J, who ordered the Defendant provide the Claimant with accommodation pending determination of the application for permission. Pursuant to that order, the Defendant has since housed the Claimant and her children in temporary accommodation, first in a bed and breakfast in Southall and shortly afterwards in hotel-type accommodation in Harlesden. On the grant of permission, Green J’s order was continued, pending the final determination of this claim. The Claimant and her children have thus been housed by the Defendant in temporary accommodation for some 16 months. Meanwhile, on 19 May 2017, the Defendant made an offer to the Claimant of a two-bedroom property in Wolverhampton; this was around 3 hours from the Claimant’s parents and X’s school and she again declined the offer.

Before permission was granted, by order of Holman J in October 2017, the Claimant was directed to file evidence of her own attempts to find suitable properties in the private rented sector. Her statement of 10 November 2017 speaks of the difficulties she experiences looking for accommodation: even if a landlord might be willing to rent to someone on benefits, they decline to do so on learning of her criminal conviction. She also complains of the Defendant’s refusal to cover agency administration fees and refers to receiving one offer of a suitable property in October 2016, which was lost when the Defendant failed to respond to the estate agent regarding the deposit.

The Claimant’s statement further attests to her dependency on her family and the impact of the situation upon X and Y, exhibiting a letter from the children’s former social worker corroborating her concerns and supporting her request that the Defendant’s housing department consider providing the family with accommodation in Brent or the wider London area.

The Defendant completed up-dated CFAs in June and September 2017 and then in June 2018. By the time of the June 2018 CFA, a medical report from Dr Michael Korzinski, Trauma and Psychosocial expert, was available (dated 28 February 2018; obtained for these proceedings), further corroborating the concerns previously raised by other agencies, and advising that:

“[The Claimant] and her children all suffer from significant disruption to primary attachment figures at crucial periods in their development. Attachment disruption is a powerful predictor of a range of later social and cognitive difficulties and psychopathology.”

Dr Korzinski refers to the importance of the relationship between the Claimant and her parents, recommending:

“Every effort must be made to support the relationships she has with her parents and extended family in order to support and reinforce the gains she has made in freeing herself from the psychological influenced that [her husband] had upon her and the catastrophic consequences that followed for herself and her children. Contact through What’s App, Facebook or meeting with her family once a month will be insufficient to sustain the progress she has made in breaking free …”

Although referring to the possibility of using social media to maintain contact, Dr Korzinski later records the restrictions on the Claimant in this regard.

As for the children, Dr Korzinski speaks of the continuing difficulties X and Y face, exacerbated by more recent media reporting relating to their father (which X is old enough to understand) and refers back to the pre-sentence report from Dr Pettle, adopting its conclusions and advising that:

“The question of where [the Claimant] lives is inextricably linked with what is in the best interest of her children. Dr Sharon Pettle’s 2014 [report] stresses the importance of the role of the maternal grandparents in safeguarding the emotional social and psychological welfare of the children. I completely agree … [those] findings remain relevant … in the here and now. It would put the children at risk if they were moved anywhere that interfered with or disrupted the unfettered access to their grandparents that currently exists. It is in the children’s best interest to remain as close to where they are currently located. The mother herself needs considerable support from her parents and would also be less likely to be an effective single parent without their support. This would put the children at risk. Every effort should be undertaken to maintain and strengthen the system of support which is integral to the children’s welfare. The children’s system of attachment extends to the school where they are well grounded and integrated.”

While the June 2018 CFA continued to emphasise the difficulties in finding suitable and affordable accommodation in the London area (although, with updated information as to the Claimant’s savings, it noted she might be able to make some contribution to any shortfall in rent), the Defendant’s position shifted at this stage, with a recommendation that its social care department continue to assist the Claimant “source for suitable, affordable and sustainable property within a reasonable commute of 60 minutes distance journey time from maternal grandparents home within London”.

Since the June 2018 CFA, the Defendant has made two further offers of properties to the Claimant, both of two-bedroom flats within the London area and accepted to be within a reasonable commute of her parents’ home and the children’s school. The Claimant accepted the first property offered but this was then withdrawn by the landlord without explanation; it is common ground the Defendant was not responsible for this. Whilst expressing an interest in the second property, the Claimant did not feel able to accept the offer given the likely shortfall in rent. That was something the Defendant declined to assist with, in part because it considered the Claimant had some savings that might be used for this purpose but also because its limited resources - from which the Defendant has to assist a number of vulnerable families and children in need – means it is unable to meet such costs on an on-going basis.

In the meantime, the Claimant and her children continue to live in temporary accommodation that she contends is unsuitable, being used to house other vulnerable people, often with mental health and alcohol and drug dependency issues. There also appear to have been disputes between the Claimant and the landlord and it is said that the Claimant is in arrears in terms of rent and service charge due. For her part, the Claimant says she was unaware of any additional costs she had to meet and is seeking to challenge the assessment, whilst at the same time contesting the cap on her benefits (which, if successful, would assist in terms of finding alternative properties). Whilst accepting that the issues regarding the temporary accommodation are not the subject of any direct challenge in these proceedings, the Claimant contends these form part of the relevant context in which her claim is to be viewed.

The Claimant puts her case as a challenge to what she contends is the Defendant’s continued failure to make a reasonable offer of rental accommodation pursuant to its duty under section 17 Children Act 1989 (see paragraph 1 of the Claimant’s Skeleton Argument).

“Section 17(1) provides that it is the general duty of every local authority:

“(a)

to safeguard and promote the welfare of children within their area who are in need; and

(b)

so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children’s needs.”

By section 17(2) it is provided that, for the purpose principally of facilitating the discharge of the general duty under subsection (1), local authorities shall have the specific duties and powers set out in Part 1 to Schedule 2. It is not, however, suggested that the Defendant has acted in breach of any mandatory duty under those provisions.

Any service provided by a local authority in the exercise of a function conferred by section 17:

“(3)

… may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.”

And the services provided:

“(6)

… may include accommodation and giving assistance in kind or, in exceptional circumstances, in cash.”

Section 17 thus provides a local authority with a wide discretion to provide a service for a particular child in need, or any member of their family (section 17(3)), which may include accommodation (section 17(6)). It does not, however, impose a specific duty to provide accommodation or any other service to meet the assessed needs of any individual child; rather, it confers a power to provide assistance in any particular case, the refusal to exercise which may be challengeable on public law grounds; see the guideline authority R (G) v Barnet LBC [2004] 2 AC 208 HL, in particular, per Lord Hope of Craighead at paragraphs 91and 94; Lord Millet at paragraphs 106 and 110, and Lord Scott of Foscote at paragraphs 135-136. More specifically, as was also observed in R (G), the provision of accommodation is not the principal or primary purpose of the Children Act 1989 and section 17 does not have the effect of altering the priorities that are otherwise laid down by the Housing Acts (Lord Hope at paragraphs 92-93).

What services should be provided under section 17 will thus be a matter for the local authority; the Court’s function is limited to reviewing the legality of what the local authority may decide and require it to reconsider if what it has determined to do, or not do, was unlawful - it is not for the Court to determine or substitute its judgement for that of the local authority as to what may be the appropriate service to be provided under section 17 (see per John Howell QC, sitting as a Deputy High Court Judge, in R (PO) v Newham [2014] EWHC 2561 (Admin) at paragraph 15). More specifically, appropriate respect must be given to the judgements reached under section 17 by social workers, often making difficult decisions in financially straightened circumstances, whilst not losing sight of the Court’s duty to scrutinise those decisions with care (see the observations made by Helen Mountfield QC, sitting as a Deputy High Court Judge, in R (O) v LB Lambeth [2016] EWHC 937 (Admin) at paragraph 17).

In the present case, the Claimant says the Defendant’s decisions also amount to a breach of her article 8 rights under the ECHR. Article 8 provides:

“(1)

Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The article 8(1) right to a private and family life is not absolute given that interference with the right may be justified on the grounds set out in article 8(2). Any such interference must, however, be proportionate, something to be determined by reference to the five questions identified by Lord Bingham of Cornhill at paragraph 17 in R (oao Razgar) v SSHD [2004] UKHL 27 (a case involving a challenge to a proposal to remove the claimant from the UK):

“(1)

Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

(2)

If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

(3)

If so, is such interference in accordance with the law?

(4)

If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others?

(5)

If so, is such interference proportionate to the legitimate public end sought to be achieved?”

As was observed in R (G) (per Lord Hope at paragraph 60), the general duties set out in section 17(1) would seem to accord with the requirements of article 8, albeit the question whether decisions taken under section 17 do so will depend on the facts of each case. In R (Jalal) v Greenwich Royal LBC [2016] EWHC 1848 (Admin), it was said (citing Anufrijeva v Southwark LBC [2004] QB 1124 CA) that, in the context of a failure to provide welfare support, it would be hard to conceive of a situation where the predicament of an individual would be such that article 8 required him to be provided with support where article 3 (prohibiting torture, inhuman or degrading treatment) was not engaged (see paragraph 45). That said, the Court in Anufrijeva acknowledged that article 8 may be more readily engaged where a family unit is involved (see paragraph 43).

In her grounds of claim, the Claimant sought to challenge both the specific offers of accommodation made by the Defendant on 8 March and 18 April 2017, and what is said to be its continued failure to make a reasonable offer of accommodation pursuant to its duty under section 17 Children Act 1989. In the 16 months that have passed since the claim was issued, however, the position has changed; while making no concession in respect of its earlier decisions, the Defendant is no longer saying it considers it will have discharged its obligations by offering the Claimant properties more than a 60-minute commute from her family and her children’s school. In the circumstances, the Claimant acknowledges that the offers of accommodation in Kidderminster, Dulwich and Great Wyrley, while part of the relevant context, are now largely academic. The focus of her case is now the more general ground of challenge, to what is said to be the Defendant’s continued failure to make a reasonable offer of accommodation. That amounts to a re-focusing of the Claimant’s case but the Defendant takes no point on this.

More specifically, the Claimant now puts her case on two bases: (1) that the Defendant’s revised position remains (Wednesbury) unreasonable and in breach of her family’s article 8 rights, alternatively (2) that, in any event, the Defendant has continued to act unreasonably by failing to make any accommodation offers within the terms of its revised parameters. Again, the Defendant takes no objection to this re-statement of the Claimant’s case.

Having thus identified the grounds of challenge that remain live, the Claimant acknowledges that the force of her article 8 challenge is diminished given the Defendant now acknowledges that she, and her children, should be housed within a reasonable commute from her parents and from the children’s school. She contends, however, that allowing for a journey time of up to 60-minutes remains (Wednesbury) unreasonable: such a commute might involve multiple changes, using different forms of transport, and may be unaffordable. Moreover, the need for her children to remain at the same school, maintain the same doctors and other services (relevant considerations in terms of their welfare, see Nzolameso v Westminster City Council [2015] UKSC 22, at paragraphs 16 and 18) engages article 8 ECHR and, given they are too young to travel alone, she could face 4 hours of travel each day and such a commute could only exacerbate punctuality issues with the children at school.

The Defendant answers the Claimant’s objections by observing that its acceptance that the accommodation would need to be “suitable, affordable and sustainable” and the commute “reasonable” means regard will be had not just to the time of any commute but also to its affordability and complexity. As for the burden on the Claimant in accompanying her children to and from school, it was not unreasonable to think that on many days the Claimant might remain near her family and support network during the school day, thus avoiding the need to duplicate her commute. The assessment of reasonableness in terms of the commute had been undertaken by experienced social workers, taking into account the particular needs of X and Y, and the detailed CFA of June 2018 demonstrated the Defendant had properly had regard to all relevant considerations; the high threshold for a Wednesbury challenge had not been met.

In my judgment, faced with the Defendant’s revised position, the force of the Claimant’s complaints falls away. The parameters the Defendant has now set expressly recognise the particular need of the Claimant (and of X and Y) to be housed within a reasonable commute of her parents and of her children’s school and other services. As Ms Reid (counsel for the Claimant) largely accepted in oral argument, that really disposes of the ECHR point: the Defendant’s proposal gives rise to no interference with the private and family life of the Claimant and her children such as would engage article 8. More than that, however, there is no proper basis for saying the Defendant is acting unreasonably in how it now defines the relevant parameters for any offer of accommodation made pursuant to its section 17 obligations. The Defendant has a broad discretion in how it complies with its general duty under section 17(1). In the present case, an assessment has been made by social workers experienced with working with vulnerable families in London, that has – as evidenced by the June 2018 CFA – taken proper account of the particular needs of the Claimant and her children. The conclusion that properties within a reasonable 60-minute commute might – if otherwise suitable and affordable – be offered to the Claimant is not unreasonable in any public law sense. The specific objections raised by the Claimant in argument are met by the caveats set by the Defendant. The challenge on this basis fails.

As for whether the Defendant has acted unreasonably in failing to make any offers within the 60-minute commute it has now identified, the Claimant contends that the change to its position must mean the Defendant accepts it did not act reasonably in its previous offers, outside this range. Although it has now made two offers of reasonably located properties, the Claimant argues that its continuing refusal to offer social housing, to agree to meet agency fees or to cover a possible shortfall in rent means the Defendant is still acting unreasonably and failing to respect the article 8 rights of the Claimant and her family. This is all the more so, given the unsuitability of the temporary accommodation and the particular needs of the Claimant and her children. Acknowledging there will be a limited number of affordable properties available in the relevant area, the Claimant argues that the Defendant cannot show it looked for suitably located accommodation before June 2018 and says she can point to at least one example (that referenced in her witness statement, in October 2016) when the Defendant failed to support her in obtaining a possible home.

For its part, the Defendant does not concede that its earlier (pre-June 2018) offers were – given its knowledge at the time - unreasonable or amounted to an unwarranted interference with the Claimant’s article 8 rights. Its position changed given the further information that became available and given the length of time that passed, during which X and Y built up closer ties to their maternal grandparents. It was (and remains) reasonable for the Defendant to have regard to affordability as an unaffordable rent would not provide a stable future home. The Claimant is ineligible for social housing and the Defendant’s social care division does not have its own housing stock to draw upon. As for covering additional costs associated with agency fees and any shortfall in rent, the Defendant has reasonably declined to meet these costs (potentially open-ended insofar as rent is concerned) because the Claimant has some savings herself and because of the financial constraints facing the Defendant, from which it also has to meet its obligations to other vulnerable children and families. The Defendant has no plans to terminate the Claimant’s current temporary accommodation before a suitable alternative is found. Accepting that accommodation is not suitable on a long-term basis, save for the two offers made, the Defendant has genuinely been unable to find properties that met the requirements identified.

It is, of course, common ground that no suitable properties within a reasonable commute have been successfully sourced for the Claimant. To the extent this was because the Defendant was previously limiting its efforts to looking outside London – seemingly the recommendation of the April 2017 CFA – I have sympathy with the Claimant’s contention that this was unreasonable. On the evidence before me, I cannot see that the Defendant’s position, in making the offers it did in March and April 2017, had proper regard to the Claimant’s particular vulnerabilities and dependency on her support network in Brent (and the inevitable knock-on effect of this on her children). Although (as I am told) the Defendant may not have been aware of the restrictions on the Claimant’s use of social media at that stage and did not then have the benefit of Dr Korzinski’s report, the recommendations of the April 2017 CFA demonstrate no engagement with the concerns raised by other agencies, such as the probation service, which had been highlighted by the Claimant’s solicitors.

As the Claimant accepts, however, the offers made in 2017 now fall to be considered as part of the background. Save as possibly relevant in relation to costs, they can no longer be the focus of her case given the revision to the Defendant’s position. The question then becomes whether the Defendant has acted unreasonably in its continuing failure to source suitable properties for the Claimant? On this it seems to me that the Claimant’s challenge must also fail. There is no evidence to suggest the Defendant has failed to look for accommodation that meets the criteria identified following the June 2018 CFA. Indeed, it is accepted that the offers it has made since have both been suitable; the fact that neither worked out does not evince any challengeable failing on the part of the Defendant. Even in the period prior to June 2018, the Claimant cannot point to any tangible failure by the Defendant to identify suitable properties meeting the criteria it has now set; such properties are simply not readily available. The most the Claimant can suggest is that she identified such a property in October 2016, but the evidence that she relies on in this respect falls short of proving that the Defendant acted unreasonably, in Wednesbury terms, in apparently failing to respond sufficiently quickly to this early request for financial support.

For all these reasons I dismiss this application.