Absolute duty – target duty – Children Act 1989 – accommodation
The duty owed under section 17 of the Children Act 1989 is a target duty owed to children in general, and is not enforceable by judicial review. It is to be distinguished from a specific duty, such as that in s20. The court has no power to intervene and compel performance of a duty under s17. It is also to be distinguished from the duty to provide accommodation in s21 NAA 1948 which ‘crystallises’ into an absolute duty once a person has been assessed as satisfying the criteria in that section. The mandatory directions issued by the Secretary of State under s21(1) NAA made it difficult to read that statute as imposing anything other than a concrete duty. Neither the terms of s21 NAA nor its interpretation in Kujtim could support a construction of s17 CA 1989 which would produce an analogous result.
Thus, where a child is in need, by virtue of disability, such that s17 of the Children Act is triggered, then despite an assessment of need for a different home in which to live with his family, on the part of the social services department, the function which is thereby triggered is more properly seen as a discretion which can be discharged by a referral to a Housing authority. No ultimate duty is triggered, on the part of social services, to meet that accommodation need, even if Housing should be unable to prioritise the family’s housing points so as to bring an end to the wait. Two of the judges (a majority) even went as far as to say that the provision of accommodation was not something that came within s17, but that part of the decision has since been reversed by W v Lambeth.
Although there was no specific duty enforceable under s17 CA, a local authority could nonetheless be judicially reviewed for acting or declining to act under that section.
There was no evidence that the removal of children from the scope of the 1948 Act discriminated against them in favour of adults in relation to the provision of accommodation following an assessment of need. There was therefore no violation of article 14 ECHR in the context of the article 8 right to respect for family life.
See the House of Lords’ decision in G v Barnet London Borough Council; W v Lambeth London Borough Council; A v Lambeth London Borough Council