JA & Ors, R (On the Application Of) v The London Borough of Bexley

A local authority assessing whether children are in need must make a lawful and evidence-based assessment of their accommodation and financial circumstances. It must take account of relevant immigration restrictions, including whether accommodation can realistically be obtained privately. Adverse inferences may be drawn from unexplained past support or lack of co-operation, but they must have a proper evidential basis. In cases involving vulnerable children, close scrutiny of the decision is required. A decision based on speculation, material errors of fact, irrelevant expenditure, or inadequate enquiries may be irrational and unlawful.

The claimants were three children cared for by AA, their mother or aunt and litigation friend. AA had no recourse to public funds because of her immigration status. The London Borough of Bexley had provided accommodation and support under Children Act 1989, section 17, but later assessed AA as not destitute and concluded that the children were not in need.

The claim challenged a 2018 Child and Family Assessment, which relied partly on a fraud investigation. The grounds included material errors of fact, failure to make sufficient enquiries, procedural unfairness, failure to consider relevant matters, reliance on irrelevant matters, and irrationality. The central issue was whether the decision lawfully established that AA had access to resources sufficient to prevent destitution.

1. The claim for judicial review succeeded and the decision was quashed. The finding that AA was not destitute, and that the children were therefore not children in need, was Wednesbury unreasonable.
2. Under section 17 of the Children Act 1989, read with paragraph 1 of Schedule 2, a local authority must assess the needs of putative children in need. A child without accommodation is a child in need. The authority retains judgment and discretion, but the court may intervene where the decision falls outside the range of reasonable decisions.
3. The authority was entitled to consider unexplained past support and lack of co-operation, and in an appropriate case to draw adverse inferences. Those inferences nevertheless required evidence or a legitimate basis. Suspicion that AA might receive support from her former husband, relatives, friends, prostitution, or other possible sources was insufficient.
4. The authority failed to consider material matters. These included the accommodation needs of AA and the three children, the statutory restrictions on renting arising under sections 21 and 22 of the Immigration Act 2014, and whether private accommodation was realistically available. The possibility of return to Nigeria and the former husband’s declared income were treated speculatively.
5. The authority also relied on expenditure and assets without determining when they had been acquired or whether they demonstrated present access to funds. Pre-destitution earnings and payments could not, without more, establish that AA remained able to support the family after she stopped working.
6. Because the children were vulnerable, the decision required close scrutiny and a higher intensity of review. The authority’s conclusions were unsupported by the evidence and failed to take account of relevant considerations. A further section 17 assessment remained open, and AA was required to comply with reasonable requests made for that assessment.