Courts reaffirm local authority role in safeguarding destitute migrant families

14 August 2017

Two cases consider assessments of children where parents have leave to remain with NRPF

Two recent court judgments considering the lawfulness of child in need assessments under section 17 of the Children Act 1989 highlight the necessity for local authorities to ensure that they properly reassess a child’s needs when there has been a change of circumstances and provide additional guidance on carrying out procedurally fair assessments.

R (on the application of CO & Anor) v Lewisham London Borough Council (16 June 2017) QBD (Admin)

The first is an extempore judgment which involved a mother and two children aged 8 and 11 years old. The mother had leave to remain with the NRPF condition. The local authority found the children not to be in need because the mother had support from sisters, family, friends and the children’s father in addition to her own resources. The assessment raised concerns about the mother’s credibility as the local authority suspected that she had not been truthful about her financial and housing situation. 

The sisters and children’s father later provided statements to confirm they had withdrawn their support, and since March 2017, the family had stayed in hotels. The local authority’s reassessment found that the children were still not in need, placing reliance on the first assessment and doubts about the mother’s truthfulness.
 
The family applied for a judicial review of this decision and the court found that:

  • The section 17 duty is ongoing, so as soon as the family left stable accommodation a reassessment should have been carried out.
  • The reassessment failed to consider the new evidence from the sisters and children’s father. By failing to carry our proper enquiries, the local authority did not obtain a full and accurate picture of the family’s situation.
  • The first assessment was procedurally unfair because the mother had not been provided with an opportunity to respond to the concerns about her credibility.
  • S​ince March 2017, the family’s accommodation had been hopelessly unstable and totally inappropriate. It was in the children’s interests to be housed with their mother but the mother’s income was not sufficient to support her children and fund accommodation. The local authority had acted irrationally in finding the children not to be in need and it had failed in its statutory duty to safeguard the children since March 2017. 

AC & SH, R (On the application of) v London Borough of Lambeth Council [2017] EWHC 1796 (Admin)

The second judgment involved a mother and two children aged 4 and 10 years old. The younger child is British. The mother is a Jamaican national who had leave to remain with the no recourse to public funds (NRPF) condition. She had made two unsuccessful attempts to have the NRPF condition removed by the Home Office and had a third application pending. 

In September 2016, following a detailed assessment of the family’s financial and housing circumstances, the local authority found the children not to be in need and provided them with a 12 week notice period to leave their accommodation. In December, the family’s solicitors informed the local authority that the elder child had received a formal diagnosis of autism in October. The local authority decided that, although the elder child was a child in need due to his autism, this information made no significant changes to the family’s circumstances or outcome of the child in need assessment and did not undertake a new written assessment.  The family remained accommodated by the council whilst judicial review proceedings were ongoing. 

The court firstly considered in detail whether the assessment had been procedurally unfair on the basis of the family's claim that the mother was not given the opportunity to correct an adverse view of her honesty. The court found that the assessment had not been procedurally unfair because, throughout the assessment process, the mother had been aware of the need to provide sufficient evidence that she was seeking suitable employment and to explain the various accounts she had given of where the family had lived, including why this support was no longer available. The entirety of the evidence failed to explain or reconcile the family’s accommodation and support history. 

Secondly, the court considered whether the local authority had failed in its duty to re-assess the elder child’s needs following the diagnosis of autism. The local authority was found to have acted unlawfully in this instance because the original assessment lacked a proper evaluation of the child’s needs at a time when the child was subject to additional education support and had a pending autism assessment. No decision was made about what support was necessary and appropriate to meet the child’s needs, including whether a failure to provide services (including accommodation) would mean the child would be unlikely to achieve or maintain a reasonable standard of health and development.  The assessment was therefore not compliant with the statutory guidance. The local authority was ordered to redo the child in need assessment and accommodate the family in the interim period. 

The Judge made some additional points of note in relation to determining whether the assessment was procedurally unfair:

  • Although the parent will be the principal source of information about the family’s accommodation history and options, where reliable information is available from other sources it is correct to include it as part of the assessment process. (Paragraph 41)
  • Information from the Home Office that was referred to by the local authority is not from an independent source about which the mother could not have known. (Paragraph 61)
  • ‘True destitution is not the same as deciding not to support a family through work, though able, but to rely on state aid’. (Paragraph 62)
Local authorities are also given a useful explanation at paragraph 39 of the process and purpose of the child in need assessment: 

‘The duty of a local authority to assess the needs of a child who is apparently in need is not disputed. Other uncontroversial aspects of the case are that the Framework for the Assessment of Children in Need and their Families Guidance 2000 issued under s.7 Local Authority Social Services Act 1970 and the Working Together to Safeguard Children 2015 is relevant guidance for those charged with making an assessment of a child's needs. This guidance may only be departed from where there is good reason to do so, and its core feature is that the assessment of a child's needs should not be an end in itself. Rather, it is a process which will lead to an improvement in the well-being of the child, and the conclusion of the assessment should result in a realistic plan of action, identifying the services to be provided, allocating responsibility for such action as needs to be taken, laying down a timetable for that action, and specifying the mechanism by which that action can be reviewed. In the case of a disabled child the assessment is divided into an initial assessment and a core assessment, following which a care plan shall be drawn up indicating how the local authority intends to meet the assessed needs of the child in question.’

Commentary 

Both cases highlight the difficulties faced by people who are granted leave to remain with NRPF in providing for their families when they are able to work but cannot claim DWP benefits that are issued to help people on a low income sustain employment and fund childcare. People with leave to remain with NRPF are not subject to any exclusions from support, so eligibility for assistance will always come down to whether a child is in need, which must be established through a child in need assessment. 

The Lambeth case stresses the importance of focusing the assessment on the needs of the child, including how the family’s accommodation situation may impact on a child who has identified health or educational needs.  The assessment must be compliant with the statutory guidance, ‘Working together to safeguard children’, and must not fail to properly consider the needs of the child whilst also thoroughly investigating the family’s financial and housing circumstances. 

As the Lewisham case makes clear, reliance on hotel accommodation is not an appropriate housing solution, and where a parent does not have sufficient income to support their children and fund accommodation because they have leave to remain with NRPF, the local authority will have a duty to safeguard the welfare of children by providing the family with housing and financial support. This duty is clearly reiterated by the Judge in the Lambeth case at paragraph 42:

‘The local authority is empowered to rescue a child in need from destitution where no other state provision is available.'

Where a parent has permission to work then, as in the Lambeth case, one aspect of the assessment will involve considering whether employment is a viable option for them. The parent will be required to demonstrate either why they are unable to work or what steps they have taken to gain employment where this is a realistic possibility. Relevant factors to consider will include the age and needs of the children, availability and affordability of appropriate childcare, the parent’s employment and language skills, work opportunities in the local area and whether the parent has a disability or medical condition. Local authorities must be mindful that the parent's ability to work will form one aspect of the assessment and a conclusion about whether a child is in need must be made by evaluating all the available information about the family’s circumstances. 
Finally, the Lambeth case also highlights how people who are applying for support need to be made aware that social services will obtain and share information with the Home Office. They should be advised to inform their legal representative about this and be prepared to answer questions where any inconsistencies are identified. 

Local authority practitioners​ can use our web tool to find out what considerations they will need to make if a family requests supporwhere the parent has leave to remain with NRPF: