J, R (on the application of) v Worcestershire County Council & Anor

Under section 17(1) of the Children Act 1989, a local authority’s power to provide services is not limited to occasions when the child is physically within its area. Physical presence is required when the child’s need is assessed and the decision to provide services is made. Once the power is triggered, appropriate services may be provided outside the authority’s area, including while the child is elsewhere in England and Wales. The authority must then decide whether and how to exercise the power, having regard to relevant factual circumstances, statutory duties and available resources. Sections 17(5) and 27 support that construction by contemplating provision through others and co-operation between authorities.

The claimant, a child with Down’s syndrome and complex medical needs, belonged to a travelling fairground family. Worcestershire County Council accepted that he was a child in need and had assessed his need for social-care support, including respite nursery provision. It nevertheless decided that it lacked power to fund or co-ordinate services once the family left Worcestershire.

The claimant sought judicial review and a declaration concerning the geographical scope of the authority’s powers under section 17(1) of the Children Act 1989. The central issue was whether services could be provided while the child was outside the authority’s area, although he had been assessed while physically present there.

1. Declaration granted. The power under section 17(1) of the Children Act 1989 may be exercised outside the local authority’s area and while the child is outside that area, provided the child remains a child in need and is within England and Wales.
2. The physical-presence requirement applies when the authority assesses whether the person is a child, whether the child is in need, and what services are appropriate. It does not restrict the later provision of those services. The distinction between assessment and provision is implicit in section 17 and is recognised in The Queen (on the application of Stewart) v The London Boroughs of Wandsworth, Hammersmith and Fulham, and Lambeth [2001] EWHC Admin 709.
3. The words “within their area” qualify the children to whom the duty relates. They do not necessarily qualify the place where appropriate services may be provided. Parliament could have repeated those words after “level of services” if it intended to impose that restriction.
4. Sections 17(5) and 27 of the Children Act 1989 do not independently enlarge section 17(1), but they indicate that Parliament contemplated wide powers to facilitate provision by others, delegate provision and request assistance from another authority. Sections 29(9) and 30 further illustrate the statutory scheme of inter-authority co-operation.
5. The existence of the power does not determine whether it must be exercised or what services should be provided. Relevant considerations may include the child’s connection with the authority, distance, the length of absence and whether the child will return. The authority’s mistaken belief that it lacked power was therefore unlawful.

The court made no determination about the claimant’s ordinary residence and did not rely on section 2 of the Chronically Sick and Disabled Persons Act 1970. The final order was a declaration as to the scope of the section 17 power.

First-instance judicial review. No prior appellate decision was stated in the judgment.