S And J, R (On the Application Of) v The London Borough of Haringey

A local authority’s assessment under Part III of the Children Act 1989 requires evaluative social-work judgment, but the decision must be based on adequate enquiries and must address the welfare of the children concerned. Close scrutiny examines the substance of the assessment and reasons, rather than isolated wording.

Where a local authority relies on missing information or alleged unreliability to draw adverse inferences about destitution, fairness ordinarily requires that its concerns be put to the applicant and that the applicant be given an opportunity to respond. A failure to make proper enquiries and to provide that opportunity is an error of law. The court may refuse relief under section 31(2A) of the Senior Courts Act 1981 only where it is highly likely that the outcome would not have been substantially different.

The claimants, aged fifteen and four, sought judicial review of the London Borough of Haringey’s decision that they were not children in need under section 17 of the Children Act 1989. They and their mother had experienced unstable accommodation, including sleeping on floors. The mother was subject to a no-recourse-to-public-funds condition.

The claim challenged the assessment and its confirmation on grounds including irrationality, breach of Articles 3 and 8 of the ECHR, failure to consider relevant matters, breach of section 11 of the Children Act 2004, and procedural unfairness. The central issues were whether the assessment was lawful and whether the local authority could rely on concerns about the mother’s reliability and missing information without first putting those concerns to her.

1. Section 17 assessment. Whether a child is in need is a matter of social-work judgment. Section 17 creates a target duty and a discretionary power to provide services, including accommodation. The court must not substitute its own assessment, but must examine whether the information gathered was adequate and whether due regard was given to the children’s welfare.
2. Close scrutiny. The assessment and confirmation letter required close scrutiny. That scrutiny concerned their substance and reasoning as a whole, having regard to their purpose and authorship. The irrationality challenges failed. The authority had considered each child’s health, education, emotional and behavioural development, relationships, social presentation and self-care, and had concluded that the mother had the means and resources to avoid homelessness.
3. Convention rights. Articles 3 and 8 of the ECHR were not infringed on the authority’s assessment that the family would not be left without accommodation. Article 3 does not create a general duty to house the homeless, and Article 8 does not ordinarily require welfare support where the circumstances are not sufficiently severe to engage Article 3.
4. Procedural fairness and relevant considerations. The additional reasons in the confirmation letter formed part of the decision. Concerns about missing evidence and the mother’s alleged unreliability were potentially relevant, but proper enquiries had not been made. In particular, she had not been asked for evidence about historic rent payments or wage slips before adverse inferences were drawn. The failure to put those concerns to her caused unfairness and was an error of law. The authority also took into account the failure to provide information which it had not properly sought.
5. Section 11 and relief. The assessment showed regard to the need to safeguard and promote children’s welfare individually and generally, so the section 11 challenge failed. It was not highly likely that the outcome would have been substantially the same without the unfair procedure, because unreliability was expressly one of four broad reasons for the decision. The claim therefore succeeded on Grounds 3 and 3A, and the decision was quashed.

First-instance judicial review proceedings. Permission was granted by Karen Steyn QC, sitting as a Deputy High Court Judge, on 28 June 2016, with interim accommodation relief. The Administrative Court allowed the claim on Grounds 3 and 3A and quashed the defendant’s decision.