Housing Law WeekAlphabiolabsBerkeley Lifford Hall Accountancy Services

Home > Articles > 2014 archive

Local Authority Focus - October 2014

Sally Gore, barrister of Fenners Chambers, looks at recent developments of significance to local authorities.

Sally Gore, barrister, Fenners Chambers

Sally Gore, barrister, Fenners Chambers

In this focus I shall consider:

Age assessments

R(J) v Leicestershire County Council C2/2013/0445 (2nd July 2014) is the latest decision on age assessments to reach the Court of Appeal.  The appellant sought to argue that the Judge of the Upper Tribunal was required to follow the practice adopted in R(N) v LB Croydon [2011] EWHC 862 (Admin) and R(AS) v LB Croydon [2011] EWHC 2091 (Admin) in which the Court considered the evidence and made a declaration of age notwithstanding the agreement of the parties as to the respective claimants' ages.  Permission to appeal was refused, with Richards LJ describing the appellant's argument as 'nonsensical'.

The Upper Tribunal (Immigration and Asylum Chamber) routinely hears age assessment cases now as it is better equipped than the Administrative Court for considering the oral evidence that is required following R(A) v London Borough of Croydon; R(M) v London Borough of Lambeth [2009] UKSC 8.  The Tribunal had been presented with a consent order recording the parties' agreement as to the claimant's date of birth.  It had subsequently refused to grant the appellant a declaration as to his age.  The refusal of permission to appeal to the Court of Appeal effectively endorsed this approach.

No recourse to public funds

PO v London Borough of Newham
[2014] EWHC 2561 (Admin) considered the lawfulness of the London Borough of Newham's policy in relation to the support provided under s.17 of the Children Act to families with no recourse to public funds.  The London Borough of Newham had at the time a policy in place which paid a 'standard rate' of subsistence to families with no recourse to public funds.  In a witness statement, the local authority explained that these rates were derived from the current rates of child benefit payments.  

The crucial flaw in the policy was that child benefit is not intended to meet in full the needs that a child has for financial support.  A further flaw was that a policy based on child benefit rates, which in turn were based on the number of children in the family, took no account of the fact that a local authority providing s.17 support to a family is providing support not only to the child(ren) but also to the adults in the family who care for them.  Whilst the amounts payable for the adults' subsistence need not be more than is required to avoid a breach of their Convention rights, they did need to be amounts in addition to that judged necessary to meet the subsistence needs of the children.

However, the Administrative Court rejected the claimant's implied submission that a policy such as this should never be based on 'standard' rates.  A local authority formulating a policy to provide for families that are destitute can be assumed to have some conception of what is normally appropriate to meet the children's needs in accordance with the general duty imposed by s.17.  Nonetheless, any such policy must always have the flexibility to provide for exceptional circumstances as identified by a proper assessment of need. 

In more recent news on the subject of support for families with no recourse to public funds, the Public Law Project has recently published a guide on the support that may be available to such families under s.17.  The intention behind this guide is to assist voluntary organisations to identify when a destitute family with children may be able to access s.17 support from their local authority.

Local Government Ombudsman finds Doncaster MBC misapplied Part III, Children Act 1989

A homeless 17-year old who claimed she had fled her family home after being physically and emotionally abused by her father was turned away by Doncaster Children's Services.  She had initially travelled from her home in North Yorkshire to her boyfriend's home in Doncaster.  When her father threatened to burn down the boyfriend's home she sought help from the local authority.  Doncaster social workers refused to carry out any assessment of her circumstances as she was not ordinarily resident in their area.  They offered her a discretionary payment of £50 to return home to North Yorkshire.

A homeless 16 or 17-year old seeking assistance from a local authority is a feature of much of the case-law on s.20, Children Act 1989.  The authorities have been clear, certainly since R(G) v  Southwark London Borough Council [2009] UKHL 26 that a duty is owed under that section to any child 'within the area' of the local authority who satisfies the other elements of s.20(1).  See R(A) v London Borough of Croydon [2008] EWCA Civ 1445. 

There is no requirement that a child be 'ordinarily resident' in the area of a local authority to which they present themselves and case-law has already established that the local authority to which a child presents is expected to assess their needs and not simply assist or encourage them to go to the area of a different authority: R (Liverpool City Council) v London Borough of Hillingdon [2009] EWCA Civ. 43.

Following a complaint to the Ombudsman which was upheld, Dr Jane Martin, Local Government Ombudsman, said:

"I am concerned that a vulnerable young girl, who has repeatedly asked for help from Doncaster council, has been told at every turn that she is 'not their responsibility.

"The law is clear on this, a child does not have to be 'ordinarily resident' in a council's area – and Doncaster council should have assessed the girl's situation when she came to them and presented as homeless.

"I hope this case reminds other councils of their legal position when considering children in need who are from outside their area."

By way of a remedy, Doncaster MBC agreed to apologise to the teenager for failing to assess her as a 'child in need' and for failing to take appropriate action.  The local authority paid her £500 for the distress caused to her and for the the unnecessary risk it placed her in by not providing her with accommodation.

Promoting the education of looked after children

In July 2014, the Department for Education issued revised statutory guidance aimed at promoting and enhancing the educational opportunities for looked after children.  Amongst other matters dealt with in the revised guidance, the new guidance reflects the statutory requirement imposed by s.99, Children and Families Act 2014 (which inserts new s.22(3B) and s.22(3C), Children Act 1989) that local authorities appoint a named officer to safeguard the educational achievements of looked-after children (a so-called Virtual School Head).

The guidance relates to the need for local authorities to ensure that their Virtual School Heads have sufficient resources, time and support to carry out their duties properly.  The guidance also deals with the need for local authorities to monitor the attendance at an educational institution and the progress in education of the children whom they look after.