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

Section 17 of the Children Act 1989 permits services to be provided for any member of a child in need’s family, but only where the service is appropriate to the child’s needs and is provided with a view to safeguarding or promoting the child’s welfare. Where an adult family member is excluded from mainstream benefits, support may be provided only if necessary to meet the child’s welfare needs and, where applicable, to avoid a breach of Convention rights. An older sibling’s beneficial relationship with the child does not automatically make financial support lawful or necessary. The court reviews the local authority’s assessment for rationality and sufficient inquiry, while respecting the social worker’s primary evaluative role.

The claim concerned support provided by the London Borough of Bexley under section 17 of the Children Act 1989 to a mother and her 16-year-old son, who had no recourse to public funds. The mother’s 19-year-old son was permitted to live with them but was not included in the subsistence calculation.

The claimants argued that the authority had misinterpreted section 17, failed adequately to investigate whether the family had enough food, and failed to consider whether support for the older son was necessary to safeguard or promote the younger son’s welfare. The central issue was whether section 17 permitted, or required, the authority to take the older son’s food-related needs into account.

1. Claim dismissed. The authority lawfully concluded that it had no power under section 17 of the Children Act 1989 to provide additional financial support for the adult sibling unless that support was necessary to meet the younger child’s welfare needs.
2. The statutory concept of “the family” is wider than persons with parental responsibility. Section 17(3) permits services to be provided for the family or any family member. That power remains subject to section 17(1): the service must be appropriate to the needs of the child in need and provided with a view to safeguarding or promoting that child’s welfare.
3. Where Schedule 3 to the Nationality, Immigration and Asylum Act 2002 excludes an adult family member from mainstream benefits, support for that person may be provided under section 17 only if necessary to meet the child’s welfare needs and, where required, to avoid a breach of Convention rights. The authority was not bound to treat the older sibling’s beneficial emotional and practical support as establishing that necessity.
4. The authority’s conclusion that the younger child’s essential welfare needs were met by his mother was rational. The assessment had considered the brothers’ relationship, the older sibling’s assistance with homework and meals, and the mother’s role as primary carer.
5. The inquiry was sufficiently diligent. Judicial review required close scrutiny of the substance of the assessment, but the court had to respect the social workers’ primary evaluative function and assess their evidence practically. Since the authority was entitled to exclude the older sibling’s needs from the subsistence calculation, the challenge to the adequacy of the food inquiries also failed.

First-instance judicial review decision. No prior appellate decision was stated in the judgment.