C1 & C2, R (on the Application of) v London Borough of Hackney

Section 27 of the Children Act 1989 applies only where one authority requests help from another authority listed in the provision. It does not apply to a request between departments of the same unitary authority, because a department is not a separate local or local housing authority. The statutory wording cannot be enlarged by relying on the welfare principle in article 3 of the Convention on the Rights of the Child or section 11 of the Children Act 2004 where the proposed construction is strained and artificial. A section 27 request does not transfer or rewrite the respective statutory functions or priorities of housing and children’s services authorities.

Two young children and their mother lived in accommodation accepted by the defendant local authority to be unsuitable. Following an earlier compromise, the defendant’s children’s services department requested that its housing department provide a larger property with outdoor space. The housing department did not comply, and the children brought a further judicial review claim seeking enforcement of the request.

The preliminary issue was whether section 27 of the Children Act 1989 applied when the request was made by one department to another department within the same London borough. The court also considered later authority, the asserted absurdity of distinguishing unitary from non-unitary authorities, and the relevance of article 3 of the Convention on the Rights of the Child.

1. The claim was dismissed. Section 27(2) creates a qualified obligation to comply only if the request falls within section 27(1). The statutory structure identifies the requesting and requested bodies as authorities, not departments.
2. Under section 105 of the Children Act 1989, the defendant was the London Borough of Hackney. The housing department was not a local housing authority distinct from that borough. On the ordinary meaning of “other authority”, the borough could not request help from itself. Section 27 therefore did not apply to the inter-departmental request.
3. The court gave considerable respect to R v London Borough of Tower Hamlets, ex p. Byas (1992) 25 H.L.R. 105. Although that decision mistakenly referred to section 29 as providing a recoupment mechanism for section 27 assistance, the error did not affect its central construction of section 27.
4. The observations of Lord Nicholls in R(G) v Barnet London Borough Council [2004] 2 A.C. 208 were treated as obiter. They appeared in a dissenting speech, supported a conclusion rejected by the majority, and were made without argument on the point or reference to Byas. They were not followed. R(M) v Hammersmith and Fulham London Borough Council [2008] 1 WLR 535 concerned a different statutory framework and did not assist.
5. R v Northavon District Council Ex p. Smith [1994] 2 A.C. 402 showed that section 27 does not alter the distinct functions or legitimate housing priorities of the respective authorities. Its use as a route to judicial review of housing decisions is subject to very strict constraints.
6. Article 3 of the Convention on the Rights of the Child and section 11 of the Children Act 2004 could not justify a strained interpretation of section 27. Permission to appeal was refused because no ground had a real prospect of success and no other compelling reason for an appeal was shown. The claimants were ordered to pay two thirds of the defendant’s costs on the standard basis.

The judgment was a first-instance judicial review determination. The court refused written permission to appeal under CPR 52.3(6).