Davies v Hertfordshire County Council

A local authority’s duty under the Children Act 2004, section 11, is not confined to strategic arrangements. It may apply to a discretionary decision to enforce a service occupancy and seek possession. A person without a private-law right to remain may raise breach of that duty in possession proceedings. The duty does not redefine the authority’s function: its reach depends on the nature of the function and the circumstances. Breach does not itself defeat possession. There must be a material connection between the breach and the outcome. Where proper consideration of the children’s welfare could not have altered the result, the possession order stands. The appeal was dismissed despite an error in the judge’s broader principle.

The appellant and his family occupied a school bungalow under a service occupancy. His employment ended following dismissal for gross misconduct, but the family remained after the occupancy terminated. The respondent local authority brought possession proceedings.

The High Court ordered possession and held, as a matter of principle, that breaches of section 11 of the Children Act 2004 and section 149 of the Equality Act 2010 could not provide a defence where there was no private-law right to remain: [2017] EWHC 1488 (QB). Permission to appeal was confined to the section 11 issue. The central questions were whether a section 11 breach could be raised as a defence and, if so, whether it affected the possession outcome.

Appeal dismissed. The possession order was maintained and the case was not remitted.

1. The judge erred if paragraph 105 of her judgment meant that a breach of section 11 could never provide a defence to possession proceedings merely because the occupier lacked a private-law right to remain. Modern authority establishes that a county court may consider public-law objections to a local authority’s possession decision, including where the occupier has no domestic right to possession. This development is reflected in Wandsworth London Borough Council v Winder [1985] AC 461, Doherty v Birmingham City Council [2008] UKHL 57, Mullen v Salford City Council [2010] EWCA H.L.R. 35 and Manchester County Council v Pinnock [2010] UKSC 45.
2. Section 11 is not limited to strategic arrangements. It requires decisions affecting children to have regard to the need to safeguard and promote their welfare. The duty does not redefine the function being performed. Its scope is qualified by the nature of the function and the circumstances: Kensington and Chelsea Royal London Borough Council v Mohamoud; Wandsworth London Borough Council v Saleem [2015] EWCA Civ 780 and Nzolameso v Westminster CC [2015] UKSC 22.
3. The respondent’s discretionary decision to enforce the ended service occupancy by serving a notice to quit was an exercise of a function leaving room for consideration of the children’s welfare. A purely factual decision would not engage the duty in the same way.
4. However, the accepted breach of section 11 had no material relevance to the substantive question whether possession should be ordered. The appellant had identified no unusual or compelling circumstances showing that consideration of the children’s position could have altered the result. At most, a successful defence could have produced a temporary reprieve. The respondent’s property rights remained otherwise unanswerable, and possession was inevitable.
5. The section 149 issue was theoretical and permission did not extend to the factual or legal conclusions concerning that provision. The court therefore expressed no obiter view on it.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the possession order: [2018] EWCA Civ 379.
2. High Court of Justice ordered possession, holding that the statutory duties under section 11 of the Children Act 2004 and section 149 of the Equality Act 2010 could not provide a defence in the circumstances: [2017] EWHC 1488 (QB).