R (W) v Lambeth London Borough Council

A local social services authority may, under section 17 of the Children Act 1989, provide accommodation or financial assistance for the family of a child in need where this promotes the child’s welfare. The power can extend to an intentionally homeless family unable to obtain help under housing legislation. It is a discretionary safety-net power, not an enforceable duty to provide the assistance identified in an assessment.

The authority may reserve the power for extreme cases and allocate finite resources between competing statutory responsibilities, provided it gives intelligible and adequate reasons. Article 8 does not create a right to a home, although resource and welfare considerations may inform the decision.

W, a mother with two children, became homeless after being evicted for rent arrears and was found intentionally homeless under the housing legislation. She sought assistance from Lambeth’s social services department with securing accommodation for the family. The department assessed the children’s needs but declined assistance, initially believing that it had no relevant power.

A High Court judge had refused permission for judicial review. The Court of Appeal later granted permission and directed that the substantive application be heard by it. The central issues were whether section 17 of the Children Act 1989 empowered assistance with family accommodation, whether the earlier decision in R(A) v Lambeth LBC [2001] EWCA Civ 1624 was binding, and whether Lambeth’s discretionary refusal was unlawful.

The Court of Appeal, in a judgment of the court, dismissed the application for judicial review.

1. The court applied the limited exceptions permitting the Court of Appeal to depart from its own decisions. Under Rickards v Rickards [1990] Fam 194 and Duke v Reliance Systems Ltd [1987] 1 QB 108, departure was justified where the earlier decision had been reached without material statutory provisions and, had they been considered, the court must have reached a different conclusion.
2. The majority reasoning in R(A) v Lambeth LBC [2001] EWCA Civ 1624, that section 17 did not empower assistance with accommodation, had been reached without full citation of relevant legislation. The later provisions of section 122 of the Immigration and Asylum Act 1999 and sections 17A and 17B of the Children Act 1989 would be unworkable if section 17 were confined in that way.
3. Section 17 imposed a general target duty to safeguard and promote the welfare of children in need and promote their upbringing by their families. It also conferred a discretionary power to provide services for the family of a particular child, including temporary accommodation or financial assistance, where the provision safeguarded or promoted the child’s welfare. The reasoning in Attorney-General ex rel Tilley v Wandsworth Borough Council [1981] 1 WLR 845 and R v Tower Hamlets LBC ex p Monaf 20 HLR 529 (CA) supported that interpretation.
4. The power did not create an enforceable duty to provide the assistance identified in an assessment. Lambeth had given intelligible and adequate reasons based on the exceptional-circumstances threshold and competing resource pressures. The court therefore had no sufficient basis to quash the assessments.
5. Section 2 of the Local Government Act 2000 and Article 8 of the European Convention on Human Rights did not alter the result. Article 8 protected respect for an existing home and family life, rather than conferring a right to a home. The court nevertheless expressed the hope that Lambeth would reconsider W’s position carefully.

The claimant’s application for a quashing order was dismissed. There was no order for costs, subject to detailed assessment of Community Legal Services funding. Permission to appeal to the House of Lords was refused, but interim relief was extended pending any petition.

1. Court of Appeal Permission was granted on 8 March 2002 and the substantive judicial review application was heard by the court. The application was dismissed under [2002] EWCA Civ 613.
2. High Court Maurice Kay J had refused permission to apply for judicial review, considering himself bound by R(A) v Lambeth LBC [2001] EWCA Civ 1624.