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

The court considered the geographical reach of the power under section 17(1) of the Children Act 1989 to provide services to a child assessed as a child in need. It distinguished the stage at which a local authority must assess a child (which requires the child to be physically within the authority's area) from the subsequent power to provide services. Applying a purposive construction of the broadly expressed section 17 and having regard to related provisions such as section 17(5) and section 27, the court held that a local authority may, following an assessment while the child is within its area, exercise its power to provide services when the child is temporarily outside that area (but within England and Wales).

The court therefore allowed the claimant's challenge to the defendant's stated inability to fund nursery/respite provision when the child travelled outside Worcestershire. The decision emphasised that the conclusion relates to the existence of power, not to any obligation to provide services in every circumstance, and that the authority may properly consider a wide range of factors when deciding whether and how to exercise the power.

Background and parties. The claimant was a three year old boy with Down's syndrome and complex needs, represented by his father as litigation friend. Worcestershire County Council had carried out an initial assessment and agreed funding for five hours per week of nursery support while the family was in Malvern, but concluded it could not continue funding once the family left Worcestershire. The Equality and Human Rights Commission was granted permission to intervene.

Nature of the claim and remedy sought. The claimant sought judicial review and a declaration that the defendant's power under section 17(1) of the Children Act 1989 to provide services to a child in need extends to services provided when the child is outside the authority's area.

Issues framed by the court.

• Whether the power to provide services under section 17(1) may be exercised when the child is not physically within the local authority's area, given that assessment must take place when the child is within the area.
• How related provisions (section 17(5), section 27, Schedule 2, and authorities such as Stewart) affect the construction of section 17(1).

Facts material to the decision. The claimant came from a travelling fairground family who travelled across multiple local authority areas for work; the council accepted he was a child in need. Social work records recorded an intention to consider whether funded hours could "travel" with the family, but managerial decisions rejected funding outside Worcestershire on the basis that the council lacked power to do so.

Court's reasoning and conclusion. The court accepted that assessment must be carried out while the child is physically within the authority's area (following Stewart), but distinguished that duty from the separate question of where services may be provided. Taking a purposive approach to the broadly expressed wording of section 17, and having regard to section 17(5) and section 27 as indicators of Parliament's intention to enable cooperative and flexible provision, the court held that the power under section 17(1) may be exercised to provide services outside the authority's area after an assessment undertaken while the child was within the area. The court stressed this establishes power rather than an automatic duty to provide services in all circumstances and noted relevant practical considerations the authority may weigh when deciding whether to exercise the power (connection to the area, distance, duration, return, and inter-authority cooperation). The court noted Human Rights Act and Convention arguments were raised but did not need to determine them to resolve the statutory construction issue.

First instance judicial review: the claim succeeded. The court held that section 17(1) of the Children Act 1989, read purposively, confers a power on a local authority to provide a range and level of services appropriate to a child’s needs both inside and outside the authority’s area, provided the child has been assessed while within the authority's area. The court explained the distinction between the duty to assess (requiring physical presence) and the subsequent power to provide, and concluded the defendant’s managerial decision that it "was not able" to agree funding once the family left Worcestershire was mistaken as to legal power.