J v Enfield LBC (High Court, 4 March 2002)

Section 17 Children Act 1989 – duty to provide accommodation – section 2 Local Government Act

An assessment as to whether someone is in need of care and attention has been successfully challenged in court, on the grounds of unreasonableness, in the light of medical evidence.

The High Court has also held that it is not possible (assuming there are no human rights concerns) to read s17 of the Children Act as providing power to accommodate a child with a parent who is not entitled to housing from the LA, or to provide financial assistance in order to secure housing. Where there are human rights concerns engaged, such as the separation of parent and child for no reason other than the absence of legal power, then s17 would be able to be stretched to achieve compatibility, as is required by s3 HRA.

But the court also held that it is possible to read s2 Local Government Act 2000 broadly enough to authorise financial assistance to a parent to secure accommodation for herself and a child. When lack of financial assistance would lead to an infringement of human rights, the power to act, becomes, in effect, a duty so to act.

The claimant was a person who by virtue of s185 Housing Act 1996 was not eligible for state assistance with housing, being a Ghanaian overstayer, awaiting a decision on her application to remain in the UK. She was HIV positive, with a 2 yr old daughter. She had survived here through personal kindness and charitable assistance since 1995. Her application to the council was for the first month’s rent and deposit and financial assistance for the shortfall between the rent and what she could afford, thereafter.

The Court held that despite being ineligible for housing, she was capable of qualifying in principle, for s21 NAA accommodation. This was because if she was assessed as being in need of care and attention, it was not solely because of destitution.

But the council had assessed the claimant as being at low risk, and the daughter not to need specific assistance, although they recognised that she was a child in need.

The judge held that s21 NAA enables an authority to make arrangements for accommodation to anyone with a prior need for care and attention, which may be ameliorated by the provision of accommodation. The accommodation is not the end or the purpose of the intervention, but rather, the means whereby care and attention can be provided or facilitated. It can extend to ‘usual’ or ‘ordinary’ housing accommodation, without any services involved, making it particularly suited to the elderly, ill or disabled – ie it can be the kind of accommodation made available by the housing authority. (The authority conceded that this was correct, as has occurred in all the other s21 ‘ordinary housing’ cases.) He confirmed that the need to be assessed can be an anticipated need. The exclusionary section (s21(1A) NAA) does not exclude those who have an additional need for accommodation, not even if one is an asylum seeker who would otherwise be provided for by NASS.

The authority accepted that the loss of accommodation was imminent, but a comprehensive assessment found that J was fit and well and could support herself and her daughter, needed no special medication, was living safely, cooking and looking after herself and travelling without difficulty. The claimant then got a consultant’s report which confirmed that she had a very weakened immune system, leaving her very vulnerable to complications, and stating how important it was that she had stable accommodation to organise her medication from, once she needed to start taking it again. The consultant thought that a situation of having no access to food or shelter would have a major impact on her physical and psychological health, which would make her system more prone to deterioration from the stress. He foresaw a very serious risk of deterioration, with the possibility of life threatening complications.

The medical evidence was reconsidered. The assessor regarded the doctor’s view as being in general terms only, and asserted that the council was entitled to take the view that not all HIV positive applications should be provided for under s21 NAA, if needing ‘ordinary’ accommodation.

There was no contrary medical evidence obtained by the council. The court rejected the council’s approach in light of the specific problems identified by the doctor, and the trenchant way in which he had expressed himself. No reasonable authority could conclude that the risk to health was not imminent – the doctor had said deterioration could occur within days of homelessness.

In relation to the Children Act, the authority acknowledged once homelessness became imminent that the child needed accommodation, but said it had no power to provide it. If s17 allowed for financial assistance to the claimant, to provide for the child, then the council would want to use that power. The case of A v Lambeth LBCestablished that provision of accommodation was not lawful, but did that mean that financial assistance was automatically precluded as well? The court concluded that financial assistance is also prohibited under s17, (save for exceptionally, to enable someone to return home when that would promote the child’s best interests, as in Guleed v Barnet LBC).

The judge went on to hold article 8 (right to respect for private and family life) would be engaged, if separation of mother and child were to be the only way to accommodate the child, and that none of the justifications in article 8.2 would be applicable.

Although the judge went on to state that he could see his way to stretching section 17 to comply with article 8, in a case where human rights were concerned, he did not need to, (and neither will anyone else now) because he also found that s2 LGA 2000 (the innovative general ‘well-being’ power) could indeed cover the provision of financial assistance. Section 2(4)(b) authorises financial assistance to any person. Section 3 excludes reliance on this power when the authority is already unable to do the thing it wants to do, by virtue of a prohibition, restriction or limitation on its powers contained in any enactment.

The judge was not satisfied that the limited scope of s17 to which he had been driven, with regard to financial assistance, constituted a prohibition , restriction or limitation. The fact that s17 does not extend so far as to cover financial assistance to secure housing is not a limitation as envisaged by s3 LGA – it was more the result of looking at a body of legislation as a whole. The judge thought that the instances of an implied limitation amounting to a s3 restriction would be very rare.

Therefore it was not necessary to grant a declaration of incompatibility in respect of any provision in the Children Act or National Assistance Act.

*NB the court’s decision in relation to s17 CA 1989 was reversed by the Court of Appeal in W v Lambeth Borough Council, which decided that LA’s did have a power to provide accommodation under s17.

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