ES, R (on the application of) v London Borough of Barking and Dagenham

A local authority must take reasonable steps to identify whether a child is in need under Children Act 1989, section 17. That duty includes reassessing the child’s needs when accommodation circumstances materially change, particularly where homelessness is imminent or actual. The availability, or possible availability, of accommodation under section 4 of the Immigration and Asylum Act 1999 does not by itself displace the duty. A local authority may rely on section 4 only where the Secretary of State is able and willing to provide it and it will meet the child’s assessed needs. The authority must also assess whether accommodation actually provided under section 4 meets those needs.

The claimant sought judicial review of the defendant local authority’s failure to reassess her young son’s needs under section 17 of the Children Act 1989. An initial assessment in September 2012 concluded that the child was not in need, when the family had relatively stable accommodation.

The family’s accommodation ended in November 2012. The authority refused reassessment, believing that the claimant was excluded from section 17 support because she could obtain support under section 95 of the Immigration and Asylum Act 1999. The Secretary of State later offered section 4 accommodation, which was provided but was alleged to be unsuitable. The central issue was whether the authority had taken reasonable steps to identify the child’s needs in the changed circumstances.

1. Duty to assess. Section 17 of the Children Act 1989, read with Schedule 2, imposed a duty to take reasonable steps to identify the extent to which the child was in need. The authority’s mistaken view that section 95 support excluded its section 17 powers was material to its failure to reassess.
2. Changed circumstances. The September assessment had relied in part on the stability provided by the family’s accommodation. Once that accommodation was lost and homelessness became imminent, the authority had to consider whether reasonable steps required an updated assessment. Refusing any reassessment was unlawful. Charity accommodation and temporary arrangements did not discharge that duty.
3. Section 4 accommodation. Section 4 of the Immigration and Asylum Act 1999 was a residual power. Before relying on it instead of section 17, the authority needed to establish that the Secretary of State was able and willing to provide accommodation and that it would meet the child’s assessed needs. Before the offer was made, a “wait and see” approach was unlawful.
4. Accommodation actually provided. The offer of section 4 accommodation was relevant after 13 November 2012, but the authority still had to assess the child’s needs during the period before provision and whether the accommodation supplied met those needs. Evidence that the accommodation was unsuitable required further assessment.
5. Relief. There was a real prospect that a lawful assessment would have identified a need for section 17 support and accommodation. The claim was allowed to the extent that the defendant was ordered to carry out an up-to-date reassessment of the child’s needs. The assessment could consider the Secretary of State’s willingness to provide section 4 accommodation and its nature and location.