McDonagh & Anor, R (on the application of) v London Borough of Hounslow

A local authority may, in exercising its powers under Children Act 1989, offer financial assistance for a family to return to a country where the children’s needs are considered capable of being met. The offer does not become unlawful merely because the family is unwilling to accept it. The authority must, however, retain and consider its continuing powers and responsibilities towards the children; it must not withdraw all assistance or treat refusal as ending its obligations. The lawfulness of the decision is assessed by judicial review on the information reasonably available when it was made. A court should not substitute its own view where the statutory discretion requires specialised assessment of changing facts.

The claimants, a family with eight children at the time of the decision, returned to England after leaving accommodation provided in Dublin. The defendant council’s Housing Department had concluded that they were intentionally homeless, and that decision was not challenged.

The council’s Social Services Department assessed the children’s needs and offered the family tickets to return to Dublin, having been informed that accommodation would be available there. The claimants refused. They challenged the decision to offer return travel instead of accommodating the whole family in Hounslow, alleging unreasonableness and breach of the council’s duties under section 20 of the Children Act 1989. The central issues were whether the offer was lawful and whether refusal entitled the council to cease accommodating the family.

1. Claim dismissed. The decision made in late September and early October 2003 was lawful and reasonable on the information then available.
2. Judicial review was not an appeal against the council’s decision. Its reasonableness had to be assessed by reference to the information available when the decision was made. The council had no reason at that time to doubt the information suggesting that the family were Irish travellers who had left suitable accommodation in Dublin unreasonably.
3. It was lawful in principle for the council, in exercising its powers under section 20 of the Children Act 1989, to provide financial assistance enabling the family to return to Dublin, where the council reasonably believed accommodation would be available and the children’s needs could be met. No identified permanent accommodation in Dublin was required before making that arrangement.
4. The council was not required to accommodate the entire family under section 20. Following R (G) v Barnet LBC [2003] 3 WLR 1194, the council had a power, rather than a duty, to provide accommodation for the whole family.
5. The council would have acted unlawfully had it threatened to withdraw all assistance if the return offer was refused. R v Hammersmith & Fulham LBC ex p Damoah 31 HLR 786 established that refusal of a return offer did not extinguish the authority’s continuing responsibilities. Here, however, the council preserved its ability to consider its obligations towards the children under section 20, so it did not fall into that error. The approach in R (Ali) v Birmingham City Council [2002] HLR 51 supported the same conclusion.
6. The breadth of the section 20 discretion meant that the court could not declare accommodation for the whole family the only lawful response. The council had to reassess the children’s needs in light of current information, including nationality, the passage of time, the family’s refusal to return, and the further child, with any later decision remaining subject to ordinary Wednesbury review.

The claim was dismissed. The usual legal aid costs order was made, with detailed assessment for community legal services funding purposes.