AA, R (On the Application Of) v The London Borough of Southwark

A local authority conducting a reassessment under section 17 of the Children Act 1989 must consider the totality of the evidence, including information specifically addressing concerns identified in an earlier assessment. It need not produce an entirely new document or follow a prescribed procedure.

Fairness requires an applicant to have a reasonable opportunity to address matters that may lead to adverse findings, but does not necessarily require a separate minded-to process or face-to-face meeting. The authority must also make enquiries reasonably suggested by the applicant, or which no reasonable authority could fail to undertake. A failure to engage with material explanations and to pursue an available and important witness may render the assessment unlawful.

The claimant applied to the London Borough of Southwark for accommodation and support for herself and her two children under section 17 of the Children Act 1989. The authority provided interim accommodation pending assessment, then refused assistance in an assessment issued in January 2019.

Following detailed representations correcting factual matters and supplying further information, the authority issued a March 2019 assessment. The claimant sought judicial review on two permitted grounds: failure to reassess the application after receiving the further information, and failure to put matters to her or make proper enquiries. The central issues were whether the March assessment was a proper reassessment and whether the authority had discharged its duty to make reasonable enquiries.

1. Ground 1(v) allowed. The authority was entitled to use a running record of its enquiries and was not required to start with a blank sheet or adopt a particular document format. But a reassessment had to take account of all relevant information, including the claimant’s explanations and evidence responding to the adverse matters identified in the January assessment.
2. The March assessment did not refer to, or properly engage with, the claimant’s solicitor’s detailed email of 23 January 2019. It repeated factual conclusions which were inconsistent with that email, including the assertion that no supporting letter had been provided, although a letter from Mr O confirmed financial support. It also failed to address the explanation for non-disclosure of an ISA containing only £2.48. The court concluded that no proper reassessment had been undertaken.
3. Ground 4 allowed in part. The claimant had received a fair opportunity to address the authority’s concerns through her response to the January assessment. The authority was not required to use a minded-to procedure or arrange a face-to-face meeting.
4. However, the authority failed in its duty to make reasonable enquiries. Applying the approach in R (O) v London Borough of Lambeth [2016] EWHC 937 (Admin), it had to make enquiries reasonably suggested by the applicant or which no reasonable authority could fail to undertake. Whether the claimant had lived with Mr A, and whether that arrangement had ended, was a central issue. After an unsuccessful visit, the authority made no attempt to telephone Mr A, despite knowing that he was willing to speak and that his telephone number could be provided.
5. The assessment was unlawful. The defect was substantive rather than merely technical or procedural. The court granted a declaration that the section 17 assessment was unlawful and ordered that it be quashed. Costs were to be agreed.