MM, R (on the application of) v London Borough of Lewisham

A local authority assessing whether a child is in need must make proper inquiries into the circumstances bearing on the statutory criteria. It must not rely on assumptions that housing, family assistance or voluntary-sector support will meet the child’s needs. Where the available information indicates a real risk of significant impairment to health or development without services, the authority may be required to undertake an initial assessment and, where the statutory circumstances are established, to provide accommodation. A later assessment cannot retrospectively cure an earlier unlawful refusal by relying on facts or weight only available later. The court may grant declaratory relief where lawful consideration would inevitably have led to accommodation.

The claimant, aged 17, had fled domestic violence and was living in a women’s refuge. In July 2007, the defendant local authority declined to treat her as a child in need and took no further action without making adequate inquiries. Following further representations, it carried out an assessment in December 2007 and again concluded that her needs were met in the refuge pending a housing decision.

The claimant sought judicial review of both decisions. The central issues were whether the July decision was unlawful, whether lawful consideration would have required accommodation under section 20 of the Children Act 1989, and whether the December assessment could affect the relief to which she was entitled.

1. The July decision was unlawful. The referral had been dealt with summarily. The authority failed to inquire into the claimant’s vulnerability, the nature and effect of the domestic violence, the suitability and duration of the refuge accommodation, and the support actually available. It was unlawful to assume, without inquiry, that housing, family assistance, victim support or a voluntary scheme would meet her needs.
2. On the information which proper inquiries would have disclosed, no reasonable authority could have declined to undertake an initial assessment. The claimant urgently needed suitable accommodation, and her health or development was likely to be significantly impaired without services because she had suffered emotional and mental torment and her emotional development was at risk.
3. Unless assessment inquiries removed that risk, the authority was subject to an absolute duty to provide accommodation under section 20 of the Children Act 1989, applying the principle identified by Dyson LJ in Regina (M) v Gateshead MBC [2006] EWCA Civ 221, [2006] QB 650.
4. The December assessment was itself flawed. It treated the refuge as adequate without properly considering its unsuitability, the claimant’s anxieties, the length of her stay, her history and the lack of meaningful inquiry with the refuge or housing department. It was not permissible to use the later decision to reconstruct what would have happened in July by extracting later-available facts and retrospectively applying their weight.
5. The claimant was therefore entitled to a declaration that she should have been accommodated for at least 13 weeks before attaining 18. The court urged the authority to improve its assessment process, housing responses, interdepartmental communication and treatment of cases involving children approaching 18.