AE, R (On the Application Of) v London Borough of Brent

Section 17 of the Children Act 1989 gives a local authority a broad discretion to provide accommodation or other assistance for a child in need and the child’s family. It does not impose a specific duty to provide accommodation. The court reviews the legality and rationality of the authority’s decision but must not substitute its own view of the appropriate service.

Where an authority has assessed the family’s particular needs and set accommodation parameters addressing location, affordability and sustainability, those parameters will not be unlawful merely because other arrangements might be preferable. A failure to secure suitable accommodation is not irrational without evidence of a tangible failure to pursue the identified criteria. Article 8 is not engaged where the authority’s revised arrangements cause no sufficiently serious interference with family life.

The claimant, a homeless mother of two children in need, challenged the London Borough of Brent’s approach to providing accommodation under section 17 of the Children Act 1989. She relied on the family’s dependence on maternal grandparents and the children’s school, and argued that offers outside the London area were unreasonable and interfered with Article 8 rights.

During the proceedings, the authority revised its position. It accepted that accommodation should be suitable, affordable and sustainable, and within a reasonable 60-minute commute of the maternal grandparents and the children’s school. The claimant challenged both those parameters and the authority’s continuing failure to secure suitable accommodation within them.

1. Section 17 discretion. Section 17 of the Children Act 1989 imposes a general duty to safeguard and promote the welfare of children in need, but it does not impose a specific duty to provide accommodation to meet an individual child’s assessed needs. Accommodation is a service that may be provided in the exercise of the statutory power. The provision of accommodation is not the principal purpose of the Children Act and section 17 does not displace the priorities established by the Housing Acts (paras [23]-[26]).
2. The court’s role is supervisory. It may require reconsideration where the authority’s decision is unlawful, but it must not determine or substitute its own judgment as to the appropriate service. Appropriate respect is due to the judgments of experienced social workers, while the court must scrutinise those judgments carefully (para [27]).
3. The revised parameters were lawful. The authority had taken account of the claimant’s vulnerabilities, the children’s needs and the importance of the family support network. Accommodation within a reasonable 60-minute commute could properly be offered if it was otherwise suitable, affordable and sustainable. The parameters were not unreasonable in the Wednesbury sense (para [35]).
4. The Article 8 challenge failed. The revised approach gave rise to no interference with the claimant’s private and family life of sufficient character to engage Article 8. The court referred to the proportionality questions identified in [2004] UKHL 27, but concluded that the revised parameters disposed of the issue at the threshold stage (paras [28]-[30], [35]).
5. The authority’s earlier offers, which had involved accommodation outside the relevant support network, appeared to have failed to give proper regard to the claimant’s vulnerabilities. However, those offers were now background only. There was no evidence of a continuing tangible failure to search for accommodation meeting the revised criteria. The fact that later suitable properties did not ultimately result in settled accommodation did not establish an unlawful failure, and the evidence concerning an earlier property did not satisfy the Wednesbury threshold (paras [38]-[39]).
6. The judicial review application was dismissed (para [40]).