J, R (on Application of) v Worcestershire County Council

Section 17(1) of the Children Act 1989 gives a local authority a power, rather than a duty, to provide assessed services to a child in need. The duty to assess is triggered by the child’s physical presence in the authority’s area, but the power to provide services is not ended merely because the child later leaves, including voluntarily. The statutory wording must be construed purposively. It provides no basis for distinguishing between a child moved by the authority and a child who moves with the family. The authority retains discretion over whether and to what extent services are provided, subject to judicial review and relevant public-law considerations.

J, a disabled child in need from a travelling family, was assessed by Worcestershire County Council while physically present in Worcestershire. The council accepted the need for a modest nursery placement to provide respite for J’s mother, but decided that the provision could not travel with the family. Holman J allowed J’s judicial review claim, holding that the power under section 17(1) of the Children Act 1989 extended to services provided outside the authority’s area after the child had left it: [2013] EWHC 3845 (Admin). The council appealed. The Equality and Human Rights Commission intervened, but the court considered it unnecessary to determine the human-rights and equality arguments. The central issue was the geographical scope of the section 17(1) power.

Appeal dismissed. Lady Justice King gave the leading judgment, with which Lord Justice Floyd and the Master of the Rolls agreed.

1. The established position under section 17 of the Children Act 1989 is that physical presence triggers the duty to assess a child in need. The duty to assess does not itself impose a mandatory duty to provide every assessed service. Following R (G) v Barnet London Borough Council [2004] 2 AC 208 and R (on the application of VC and others) v Newcastle City Council [2012] 2 All ER 227, provision remains a broad discretionary power subject to public-law review.
2. R (Stewart) v London Borough of Wandsworth [2001] EWHC 709 (Admin) concerned principally the duty to assess and did not determine the present issue concerning provision. Its recognition that services need not be services provided by the assessing authority did not establish a geographical restriction.
3. The wording of section 17(1) is equivocal as to the geographical reach of the power. It must therefore be construed purposively. The statutory purpose is the provision of services for children in need and their families. There is no useful purpose in implying a restriction which would prevent an authority providing services outside its area.
4. There is no principled distinction between a child placed outside the area by the authority and a child who leaves voluntarily with the family. Section 17(1) contains no such distinction. Sections 17(5) and 27 indicate that Parliament contemplated provision outside the area, but section 27 cannot be relied on as a substitute for the primary section 17 power.
5. The authority may consider the child’s connection with the area, the intended length of absence, whether the family will stay briefly in various locations, and whether it is likely to return. The decision remains discretionary and is subject to judicial review. The court therefore endorsed the High Court’s conclusion that the power was capable of being exercised while the child was outside the authority’s area.

1. Court of Appeal (Civil Division) — On 25 November 2014, the appeal by Worcestershire County Council was dismissed: [2014] EWCA Civ 1518.
2. High Court: Queen’s Bench Division (Administrative Court) — Holman J allowed J’s judicial review claim and held that section 17(1) of the Children Act 1989 empowered the council to provide appropriate services outside its area, including while J was outside it: [2013] EWHC 3845 (Admin).