R (on the application of (1) AC (2) SH (CHILDREN )) v LAMBETH LONDON BOROUGH COUNCIL (2017)

Keywords: Decision making, Fairness, Child in Need

The case was brought on behalf of 2 children against a decision of Lambeth LBC that they were not ‘Children in Need’ (s.17 Children Act) on the basis of alleged destitution and risk of homelessness.

The council had carried out an assessment in September 2016 and decided that they were not ‘Children in Need’. The council had found that information provided by the children’s mother (Miss Campbell) to the council, did not accord with information she had provided to the Home Office and that her account of the family’s accommodation and support history was not credible.

Shortly afterwards, one of the children (AC) was diagnosed with autism and the resulting report provided to the council. However, the council decided that AC’s diagnosis made no significant difference to the assessment and maintained their decision.

There were two grounds of challenge:

  1. The assessment was procedurally unfair, because Lambeth had not discussed its adverse view of Miss Campbell’s credibility with her prior to deciding the outcome of the assessment, despite relying on her for much of the information used in the assessment; and
  2. Failure to reassess the needs of AC as a ‘child in need’ following his autism diagnosis.

In relation to the first ground, Cheema-Grub J provided the following useful summary of the current case law position on what is required for an assessment to be fair:

“It must be inconsistent with the aim of achieving a fair process for a public body to jump to an adverse conclusion which materially affects the decision if, on simple enquiry, that conclusion may be shown to be a false one. Equally unfairness is apparent if the material upon which a decision is based takes the person concerned by surprise because he has not been made aware of it, e.g. where information is provided by a third party who is unknown to but bears against the applicant, it is naturally just to allow the applicant to deal with it if he or she can before an adverse conclusion is confirmed. Equally, it will not be necessary in every case to extend the time and resources taken in order to reach an assessment by informing the individual of provisional conclusions where the circumstances are such that the matters upon which the conclusions are based are known to the individual concerned and they have had an opportunity to deal with them. The person concerned is not taken by surprise, even if disappointed by the conclusion reached.” [para.56]

In this case, although the provisional conclusion that Miss. Campbell’s account was not credible was not explicitly put to her, she and the children’s grandmother had both been provided with opportunities to address the important factual points on which the decision had been based. Additionally, the council’s decision did not rely exclusively on its view of Miss Campbell’s credibility, but was also based on her failure to find or make sufficient efforts to find employment. Therefore, the assessment was not procedurally unfair.

On the second ground, however, AC’s diagnosis clearly brought him within the definition of a ‘child in need’. It was clear that the council had not adequately considered what needs AC might have on the basis of disability and, therefore, that AC’s diagnosis did call for a fresh assessment. The council’s argument that the diagnostic report did not specify any social care needs was not adequate. That report had not been prepared for the purpose of considering social care needs. It was for the council to determine what statutory duties it did or did not have towards a child in need. The decision was quashed and a fresh assessment ordered.

Full transcript available at: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1796.html