This was a claim for judicial review of the London Borough of Southwark’s (Southwark) failure to provide accommodation which was suitable for the claimant (M) and her sons. The claim was based on s21 National Assistance Act 1948 (the NAA) and s17 Children Act 1989.
M was a 52-year-old single parent who was severely disabled by arthritis in her neck, spine and feet. She lived with her teenage son and twins both of whom had moderate learning disabilities and behavioural problems. M lived in a maisonette with 3 bedrooms, one for her on the ground floor and one shared by the twins and another for the eldest son on the first floor. Due to M’s disability she had never climbed the stairs or been into the two upstairs bedrooms. Southwark social services had carried out a number of assessments of the needs of M and her children. The assessments highlighted the unsuitability of the accommodation and made recommendations for alleviating the problems faced by the family. One recommendation was that the twins should have separate bedrooms and another was that the family should have new accommodation in which M could access all rooms. M’s social worker referred her to Southwark’s housing department. Although M was deemed to be in priority need of housing, after eleven months she had still not obtained a suitable property and she turned to s21 of the NAA to remedy the situation. Southwark did not accept that it had a duty to provide accommodation under s21 since M did not have a need for care and attention that was not otherwise available. M claimed judicial review of this decision.
M based her claim on the rulings in R v Wigan MBC ex parte Tammadge (1998) and R v Islington Borough Council ex parte Batantu (2001) and sought an order compelling Southwark to discharge its duty to her under s21 NAA. In Batantu the court had held that once a local authority identified a need which triggered its duty under s21 NAA, it had to provide accommodation to meet the need for care and attention which arose in such cases. Although a local authority could take its resources into account when determining whether there was a need it could not cite lack of its own resources for failing to make the necessary provisions once a need had been identified. The court contrasted this case with R (Wahid) v Tower Hamlets London Borough Council (2002) which held that where a local authority did not accept that a claimant had an unmet need for care and attention that was not otherwise available to him, it did not owe him a duty under s21 of the NAA. Whether or not a person was in need of care and attention was a matter for the local authority and not the court, unless its decision was an irrational one. The case also held that it was good practice for local social services authorities, having made an assessment and identified that a person may have a need for services provided by another authority such as health or housing, to notify the relevant authority of this need.
The High Court held that there was a substantial gap between establishing a need for housing and triggering a duty under s21 NAA and that one did not automatically follow the other. Although M’s need for better accommodation was assessed as “significant” this did not mean that she was in need of care and attention by reason of her disability and that such care and attention was not available to her other than by the provision of accommodation under s21 NAA. Southwark had taken the proper course of action by making a priority housing referral of M to the housing department and offering additional support to her and her family.
The court’s view was that s21(8) NAA, effectively drew a dividing line between housing department’s and social services’ responsibilities in relation to housing. This meant that Southwark was not “required or authorised” to make any provision that was authorised or required to be made under any other enactment. Suitable accommodation could be provided for M under the housing legislation. Section 21(8) prevented a separate obligation arsing under s21 NAA.
M’s alternative claim, that Southwark owed her and her children a duty based upon s17 Children Act 1989 was wrong and there was no duty in the Act that required the local authority to re-house the whole family. Nor was there a duty under s21 NAA to accommodate the children since, as amended Children Act 1989, the provision only applies to persons aged eighteen or over. It applied the reasoning in R(G) v Barnet LBC 2004 a House of Lords judgement which determined that s17 does not provide an enforceable duty to provide services to any individual child but rather an overarching duty to provide for all children in need in the area, therefore there is a discretion in any particular case for the local authority to decide whether to provide a service. If the accommodation is available from the housing department or there is other accommodation available, they may choose not to provide the service.
M failed to establish a breach of duty by Southwark under s21 of the NAA. Southwark’s decision was not flawed or irrational and it had been perfectly entitled to take the view that the need for better accommodation could be met by means of a priority referral to the housing department. M’s failure in her claim did not mean that her needs did not have to be addressed but Southwark’s refusal to provide her with suitable accommodation was not a breach of its duties owed under s21 NAA or s17 Children Act 1989 and M was not entitled to the order she sought.