Stewart v London Borough of Wandsworth and others [2001] EWHC Admin 709

S17 Children Act 1989 –duty – assessment – ‘within their area’

S and her children had been temporarily accommodated under s188 Housing Act 1996 ( as appearing to be in priority need) at a hostel owned and managed by Hammersmith and Fulham LBC, but located in Lambeth. Her children went to school in Wandsworth. When Hammersmith decided that S was intentionally homeless and then sought possession of the premises, S applied in turn to each of the three authorities for an assessment under s17 Children Act 1989. Each argued that they did not owe S’s children the general s17 duty ‘to safeguard and promote the welfare of children within their area who are in need’ and S sought judicial review of those decisions.

The case turned on the meaning of the words ‘within their area’ for the purpose of identifying which authority owed the s17 duty.

Hammersmith and Wandsworth argued that while necessary, physical presence was not sufficient to trigger the duty under section 17: it was also necessary to ask what is the nature and duration of the required physical presence and to show that the need for local authority services and the physical presence co-existed. Lambeth argued that there was no requirement for physical presence, and that the phrase ‘within their area’ tended to a meaning ‘within their remit’ or ‘within their area of responsibility’.

Rejecting those arguments, the judge held that the words had a geographical meaning, requiring a physical presence, as held in the ‘ordinary residence’ cases of Lambeth London Borough Council, ex parte Caddell and Kent County Council, ex p Salisbury and Pierre, and that that was the sole determining factor.

As any duty owed by Hammersmith and Fulham under the Housing Act 1996 had ceased, it was under no further duty towards S. However, the physical presence test imposed a duty on both Wandsworth and Lambeth to provide an assessment of the children’s needs. This was a clear case for the co-operation of the two authorities pursuant to s27 of the 1989 Act.

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