MIV & Ors,R (on the application of) v LB of Newham

A positive obligation under article 8 to provide welfare support is exceptional. For an individual right such as privacy or physical and psychological integrity, the predicament will ordinarily need to be sufficiently severe to engage article 3. Article 8 may require support where family life is at stake even though article 3 is not breached. In every case there must be a public-law entitlement to the benefit, culpability in the failure to provide it, and serious impact causing substantial prejudice. Section 17 of the Children Act 1989 creates a target duty and discretion, not an individual mandatory entitlement. A court may review the lawfulness of an assessment or decision, but may not substitute its view for that of the local authority.

The claimants, a family with no leave to remain in the United Kingdom, challenged the London Borough of Newham’s provision and assessment of services for their disabled five-year-old child. They alleged failures under section 17 of the Children Act 1989 and section 2 of the Chronically Sick and Disabled Persons Act 1970, and claimed that unsuitable temporary accommodation breached the child’s article 8 rights.

The authority provided temporary accommodation when the family faced eviction and later offered two-bedroom accommodation, which the family accepted. The historic statutory complaints were therefore academic and relevant only to alleged culpability. The central issue was whether the accommodation and delay in securing better accommodation amounted to a breach of the child’s individual right to private life.

1. Article 8 framework. The claim was dismissed. Following Anufrijeva v Southwark London Borough Council [2004] QB 1124, a failure to provide welfare support can engage article 8, but positive obligations are exceptional. For individual rights, such as privacy and physical or psychological integrity, the predicament will ordinarily need to be sufficiently severe to engage article 3. Where family life is at stake, article 8 may require support even though article 3 would not be breached.
2. The court should not find an article 8 infringement unless: (i) the claimant was not provided with a benefit or advantage to which the claimant was entitled as a matter of public law; (ii) there were grounds for criticising the failure, involving culpability; and (iii) the impact on private or family life was serious and caused substantial prejudice.
3. Statutory duties. Section 17 of the Children Act 1989 creates a target duty and a discretion to meet an assessed need. A decision not to meet need is not itself a breach of statutory duty, although it may be challenged on public-law grounds or may require action to avoid incompatibility with Convention rights. Under section 2 of the Chronically Sick and Disabled Persons Act 1970, once the authority is satisfied that arrangements are necessary to meet assessed needs, the duty to make those arrangements is mandatory. The assessment must distinguish the child’s needs, whether listed services are necessary, and their nature and extent. It is a dynamic process and the court cannot substitute its judgment for the authority’s.
4. Application. Article 3 was not engaged. The claim concerned MIV’s individual private life, not family life: he remained with and was cared for by both parents. The authority acted speedily to prevent street homelessness, provided schooling, transport and subsistence support, and secured better accommodation after eight months. Its failure to broaden the accommodation search earlier was criticisable, particularly in March 2018, but the overall culpability was low. The cramped accommodation caused hardship but did not cause substantial prejudice to MIV’s private life. The claim was dismissed.