Hershi Brim (by his father and litigation friend Haim Brim) v London Borough of Hackney

Section 20(1) of the Children Act 1989 imposes a duty, not merely a power, to accommodate a child in need where the statutory conditions appear to the local authority to be satisfied. The duty is wide and is not confined to cases of inadequate physical space. It may arise where carers, through genuine mental or physical exhaustion, can no longer provide suitable care. The authority must assess the evidence properly and reach a rational judgment on the child’s need. A decision-maker cannot avoid the duty by relying on the discretionary power in section 20(4), or by offering additional support, if the section 20(1) criteria have already been met. On an application for mandatory interim relief, the apparent strength of the claim and the balance of convenience are material, with particular weight given to risks that cannot later be compensated financially.

The claimant, a 15-year-old child with severe developmental difficulties and a learning disability, lived with his parents and four siblings. His parents repeatedly said that they could no longer cope with caring for him at home and sought full-time accommodation at a specialist residential and respite home.

The local authority had provided respite care and other assistance. After the parents’ latest urgent request, it did not undertake a fresh assessment and stated that it disagreed with full-time accommodation, pending further investigations. The claimant sought permission to apply for judicial review and mandatory interim relief requiring full-time accommodation pending determination of the claim. The central issues were whether the authority had applied the statutory test under section 20(1) of the Children Act 1989, and whether interim relief should be granted.

1. Permission. Permission to apply for judicial review was granted on all four grounds: failure to apply the statutory test, failure to consider relevant matters, consideration of irrelevant matters, and irrationality. The first and fourth grounds were central.
2. Section 20 duty. Section 20(1)(c) imposes a wide duty to accommodate a child in need where it appears that the child requires accommodation because the person caring for him is prevented from providing suitable accommodation or care. The duty is not limited to lack of physical space. It is arguable that genuine mental or physical exhaustion may satisfy the test. The authority must assess the evidence and reach a reasonable and rational conclusion; the court will not substitute its own view for a properly reached judgment.
3. Arguable unlawfulness. The authority’s emails did not show that it had considered the section 20(1) duty or applied its legal test. The reference to section 20(4), a power to accommodate, arguably indicated that the authority had treated accommodation as discretionary rather than as a duty arising when the statutory criteria were met. Given the parents’ genuine and repeated reports that they could no longer cope, the absence of any fresh investigation, including speaking to the mother, made it arguable that the decision was irrational. Increased respite care might have prevented a crisis, but it was arguably insufficient if the section 20(1) criteria had already arisen.
4. Interim relief. Mandatory interim relief was granted. The claim had real strength. If relief were refused and the claim later succeeded, the claimant, his parents and siblings faced genuine risks, including danger to the claimant and risks to health and family life that financial compensation could not properly remedy. If relief were granted and the claim failed, the authority’s loss would be principally limited funding costs. The balance of convenience therefore favoured full-time accommodation at the specialist home.
5. Final directions. The court refused to expedite the final hearing. Either party was given permission, on seven days’ written notice, to return to court seeking variation of the interim order if circumstances changed.