W v Lambeth Borough Council [2002] EWCA Civ 613

Section 17 Children Act 1989 – duty to provide accommodation

The cases of A v Lambeth and J v Enfield were revisited in W v Lambeth Borough Council, where an intentionally homeless claimant challenged the council’s refusal to provide her and her family with accommodation under s17 Children Act 1989. The majority of the Court of Appeal in A had found that there was no power under s17 CA 1989 for a local authority to provide accommodation. Here, the Court of Appeal ruled that A v Lambeth was decided per incuriam – i.e. in ignorance of a binding decision or inconsistent statutory provision, knowledge of which would inexorably have led to a contrary decision – and the court was therefore not bound by its earlier decision. The relevant statutory provisions which the court in A had failed to consider were s122 Immigration and Asylum Act 1999, s17A Children Act 1989 and, to a lesser extent, s22 Housing Act 1985.

Perusal of s122 IAA 1999 ( in particular subsections (5), (6) and (7)) showed that Parliament believed that, under the CA 1989, social services retained ‘safety net’ powers to provide accommodation in relation to homeless families. Further, the provisions of s17A CA 1989 would make no sense if the ‘services which the local authority would otherwise have provided’ ‘in the exercise of functions conferred on them by section 17’ could not, as a matter of law, include accommodation. If the court in A v Lambeth had had its attention drawn to the provisions of s122 IAA 1999 and to s17A CA1989, and had appreciated that the housing allocation arrangements in 1989 were not as detailed and comprehensive as they had later become, it would have been bound to have decided the case differently.

The court rejected an argument that J v Enfield had been incorrectly decided in relation to s2 LGA 2000. Given its view of the meaning of s17, there was no reason for the court to consider whether s2 LGA 2000 could be read so as to authorise financial assistance to a parent to secure accommodation for herself and a child. Nonetheless, the court found that there was nothing to prevent a social services authority from providing financial help, or temporary accommodation, in exercise of its powers under s2.

However, in this case the claimant’s situation was not yet extreme and the local authority had given intelligible and adequate reasons why it was not willing to exercise its power, given all the other pressures on its resources. There was therefore no reason for the court to interfere with the LA’s decision.

*NB since this decision 17(6) Children Act 1989 has been amended, by s 116 Adoption and Children Act 2002, so as to make it explicit that LA’s have a power, under that section, to provide accommodation for a child (together with his or her family).

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