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High Court judge quashes s.17 Children Act assessment made by council

A judge has strongly criticised a London borough over its handling of the assessment of a family’s accommodation needs.

Darryl Allen QC, sitting as a deputy High Court judge, said Southwark Council had been in breach of its duty to make reasonable enquiries under section 17 of the Children Act 1989.

The case of AA, R (On the Application Of) v The London Borough of Southwark [2020] EWHC 2487 (Admin) involved claimant AA, who has two children. She sought judicial review on grounds of alleged failures to re-assess her application after the submission of further information and to put relevant matters to her and make proper inquiries.

AA entered the UK unlawfully in 2010 and so had no recourse to public funds.

In December 2018 she sought accommodation and support from Southwark under section 17 of the Children Act 1989 and told the council she had been living in accommodation with the octogenarian Mr A, who had told her to move out in part because of behavioural problems of one child.

Southwark refused on the basis that an assessment was close to completion and Mr A extended his offer of accommodation.

The council also noted that AA’s bank statements showed she had sufficient funds for bed and breakfast accommodation for the assessment period if required.

In January 2019 Southwark issued its assessment rejecting the application as there was “no evidence to show that the family are facing homelessness”.

Her solicitors challenged the accuracy of that assessment and another was carried out which in March 2019 concluded the children were not in need, that Southwark did not believe that Mr A’s home was AA’s most recent address and said AA had used a number of different addresses for correspondence but had denied having access to them.

Bank statements still showed money coming from different sources and AA failed to explain the origin of these sums or disclose her monthly outgoings.

In October 2019 AA and her children were granted to leave to remain until April 2022, with permission to work and apply for public funds, including access to assistance under the Housing Act 1996, which the judge said was “likely to be significantly more advantageous than support provided pursuant to section 17”. 

AA said Southwark misdirected itself as its decision that she was not destitute was irrational. 

She said Southwark failed to put matters to her before drawing adverse inferences including failing to make proper inquiry with Mr A as to whether she had lived at his home and failing to consider her bank statement showing her in rising debt.

The judge said the March 2019 assessment repeated that of January 2019 in several respects and failed to record that AA’s description of her bank account was “effectively accurate”.

“In my judgment, whilst the defendant was not required to produce an entirely new document, starting with a blank sheet and re-drafting the entire document, it was required to carry out a fresh assessment taking into account the totality of the evidence,” Mr Allen said.

Southwark had not done this and had made “factual conclusions which are wholly inconsistent with a proper consideration of the contents of [an] email [which] lead me to the conclusion that the defendant did not undertake a proper reassessment with reconsideration of all of the information and evidence before it”. 

He said it had been crucial to establish whether AA and her family had been living with Mr A and whether he terminated that arrangement and he had “been given no explanation for the failure to ask for Mr A’s phone number or the failure/decision not to speak to him by telephone”.

Southwark argued that no relief should be granted as AA and her children now had leave to remain and access to more generous support.

Mr Allen said: “I have found [Southwark] failed to engage with the new information provided by the claimant. 

“That was not a technical error or a mere error of procedure: it undermines the defendant’s approach to the March 2019 reassessment. The defendant failed in its duty to make essential inquiries in relation to one of the critical issues it had to resolve.  Once again, in my judgment that is not a mere procedural flaw or insignificant error of law.”

He made a declaration that Southwark’s assessment under section 17 of the Children Act 1989 was unlawful and quashed it.

Mark Smulian

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