"I reasonably don't believe you"
Jonathan Auburn looks at the issues when local authorities consider refusing social care support on credibility grounds.
Local authorities often have suspicions as to the truth of claims to destitution and needs for social care support. Deciding to refuse support altogether to a family claiming destitution, on the basis that the local authority just does not believe the claims made, is a strong step to take. However, the use of this approach seems to be a growing trend.
The latest decision is R (Antwa) v Lambeth Children's Social Services (Administrative Court, 10 March 2016). In this case the Court discharged an interim injunction requiring a local authority to accommodate a mother and her three children. The mother claimed that as well as being homeless, they had no support available to them. The local authority’s assessment had concluded that the children's father was falsely claiming that he would not support the family. The father had certainly supported the family up until recently, though it was claimed that the father had left them and refused to further support the children. The local authority decided that the alleged breakup of the relationship was a façade and the family was manipulating the situation to force it to provide accommodation.
Holman J sided with Lambeth, holding that there was a real risk that the local authority was being manipulated. Lambeth had some basis for the view it took that the father was still part of the family, and supporting it. Accordingly, the court held that Lambeth’s decision-making was not legally flawed.
The Antwa case can be seen in the context of a line of similar cases in the last few years. In Birmingham CC v Clue [2011] 1 WLR 99 the Court of Appeal held at para 55 that the local authority must decide “If the withholding of assistance would not …. amount() to a breach of Convention rights” and so “must investigate whether there are available to the claimant other sources of accommodation and support”.
This was taken a step further in R (MN) v Hackney LBC [2013] EWHC 1205 (Admin). The court there upheld the denial of support to a family, where the local authority said it had been unable to determine whether the family was destitute because of the parents' failure to provide sufficient information, and therefore that it could not determine whether or not the child was “in need” for the purposes of section 17 of the Children Act 1989.
Similarly, in R (N) v Newham LBC [2013] EWHC 2475 (Admin), although it was clear that the child’s basic needs were not being met, the court nonetheless still upheld the refusal to support the family because it was not clear whether the family had access to support from family and friends, and the family had declined to provide details which would have enabled the local authority to contact those friends and family. On that basis the court agreed with the local authority that it was impossible to determine whether those other people were unwilling to provide support, and so the refusal of support by the local authority was not unlawful.
The Antwa case, while interesting, was only an ex tempore judgment, and has been minimally reported thus far. It leaves numerous questions unanswered. For example, if rights protected by the HRA are in issue, can the court determine the matter simply on a Wednesbury basis? R (Begum) v Denbigh High School Governors [2006] UKHL 15; [2007] 1 AC 100 and Belfast CC v Miss Behavin’ Ltd [2007] UKHL 19; [2007] 1 WLR 1420 would suggest not. And is there no room for recourse to oral evidence, particularly given that the heart of the case is a factual dispute turning on credibility? The determinations of factual disputes in judicial review claims has increased in recent years, particularly in cases concerning Convention rights: see R (Al-Sweady) v SSD [2009] EWHC 2387 (Admin), paras 18–19; R (Bancoult) v Secretary of State [2012] EWHC 2115 (Admin), paras 17–18. The Court is slowly becoming more open to hearing oral evidence, in appropriate cases.
However, two things are clear from Antwa: (1) that the trend for this sort of decision-making is growing, and (2) that while the Administrative Court has the tools to better determine such disputes, in practice it still tends not to take them up in cases such as Antwa.
Jonathan Auburn is a barrister at 11KBW, specialising in public law, local government, community care and related areas. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. or Twitter @jonauburn11kbw.
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