[2024] UKUT 128 (AAC)

I should add that I derived no assistance in this context from the decision of Beatson J in R (on the application of Stewart) v Wandsworth LBC & anor [2001] EWHC 709 (Admin), on which Mr Line sought to rely.

In that case the court was concerned with the duty under s.17(1) of the Children Act 1989 which provided that

“It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)–

(a)

to safeguard and promote the welfare of children within their area who are in need . . .”.

The background to the case, which concerned the duty of a housing authority to provide accommodation for homeless persons, in circumstances where her children were in need, but had some connection to several local authorities, was that

“4.

The claimant, Ms Sandra Stewart, and her two children currently reside at Unit 15, Stewart Lodge Hostel, 201 Stewart Road, a hostel owned and managed by Hammersmith and Fulham (hereafter “Hammersmith”), but located in Lambeth. The children both go to school in Wandsworth. The issue before me is within which local authority area or areas are the children for the purposes of s 17. The three possibilities are Hammersmith, Lambeth and Wandsworth. Mr Knafler, on behalf of the claimant, argues that all three are prima facie under the general duty in s 17. The claimant, who left her home in Hammersmith in March 2000 and then stayed at a number of temporary addresses in Hammersmith and outside the borough, sought housing assistance from Hammersmith on 7 June 2000. Because she appeared homeless and to have a priority need, pending inquiries pursuant to its duty under s188 of the Housing Act 1996, Hammersmith accommodated her and the children at Stewart Lodge Hostel. The second possibility is Lambeth because Stewart Lodge is located in Lambeth. The third possibility is Wandsworth where, as I have noted, the children go to school.

5.

Following its inquiries, Hammersmith concluded that, although homeless, Ms Stewart was intentionally homeless. It informed her of this in a letter dated 13 October 2000. On this basis it owed her only the limited duty under s 190 of the Housing Act, and it permitted the family to remain in the hostel for a further seven days from 13 October 2000 to give Ms Stewart the opportunity to secure accommodation. She did not leave and, on 17 January 2001, Hammersmith obtained a court order for possession of the premises against Ms Stewart (with effect from 31 January 2001).”

In the context of s.17 of the 1989 Act, Beatson J held that the phrase “within their area” had a geographical meaning, but it is important to note that the statutory context in which reached that conclusion was altogether different from the circumstances of T and his family and that it arose in the context of an altogether different statutory code. As he explained

“16.

It is convenient to deal with the authority first. The duty under the previous s 24(2) of the Children Act was to “advise and befriend” young persons formerly in care. This duty applied to persons “within the area” of the local authority. R v Lambeth LBC, ex p Caddell and R v Kent CC, ex p Salisbury & Pierre concerned London boroughs which had arranged foster placements in Kent and the disputes were whether, when the foster placement came to an end on the young person's 18th birthday it was Kent or the London borough which became responsible under s 24(2). It was held that at that time the young persons were within the area of Kent not that of the London borough which had placed them in Kent, and that the responsibility lay on Kent. In ex p Caddell Connell J stated (at page 259) that the words of the statute are clear and rejected the argument that the phrase “within the area” of the authority in s 24(2) should be read as referring back to the period when the qualifying person was still a child. This case was followed by Latham J in ex p Salisbury & Pierre.”

It was in that context that he went on to hold at [22] that the clear meaning of the words “within their area” in s.17 was that physical presence was required. It was for that reason that he explained of the contrary argument at [25] that

“Moreover, this argument does not recognise that such housing services may be given under different statutory provisions, that the nature and extent of the duties under these varies, and that the social services authority may be different from the housing authority. In the present case the limited nature of Hammersmith's duty is important. It was providing accommodation pursuant to its interim duty under s 188 of the Housing Act to do so in cases of apparent priority need pending a decision as to its duty (if any) to accommodate. When Hammersmith notified Ms Stewart that it had determined she was intentionally homeless its interim duty under s 188 of the Housing Act ceased (see s 188(3)) and was replaced by the even more limited and temporary duty under s 190 to provide advice and assistance and to accommodate for such period as they consider will give a reasonable opportunity of securing accommodation. Hammersmith has only been shown to have come under a short-term and limited duty. Until Hammersmith determined that Ms Stewart was intentionally homeless it is accepted that there was no question of a s 17 duty because there was no need for accommodation. At that time it ceased to be under a duty to accommodate save for the very limited period under s 190. So by the time that the question of the s 17 duty arose, save for what might be called “packing up time”, Hammersmith's Housing Act duty had ceased and (leaving aside the question of any s 17 duty) it was under no other duty in respect of Ms Stewart's children. In this sense, as in ex p Caddell and ex p Salisbury & Pierre, the prior duty had ceased and to interpret “within their area” as referring toan earlier time when Hammersmith was under some duty would be to do what Connell J held should not be done in ex p Caddell [1998] 1 FLR 253, [1998] Fam Law 20.

…

27.

… The criticism that there would be a mismatch between Hammersmith's obligations under the Housing Act and those under the Children Act overlooks the safeguard afforded by s 208 of the Housing Act, the temporary nature of the Housing Act obligations in the present case and the fact that the obligations of a housing authority differ from those of a social security authority (see in the context of s 27, Lord Templeman in R v Northavon DC, ex p Smith [1994] 2 AC 402, [1994] 3 All ER 313-9 of the former report).

28.

Requiring physical presence is a clearer test than a purposive approach under which the nature and duration of the presence, or the responsibilities of the different authorities in the frame are taken into account. While physical presence may, as in the present case, involve more than one authority being subject to the duty, I do not consider that an objection. There are, for example, children who are accommodated for part of the week with one parent and partly with the other parent who lives in a different local authority. As Mr Knafler submitted in reply, the absence of a dispute resolution procedure such as that in s 30 in respect of the “ordinary residence” of a child supports the view that a s 17 duty may lie on more than one authority. In a case where more than one authority is under a duty to assess the needs of a child, there is clearly no reason for more than one authority to in fact assess a child's needs and there is a manifest case for co-operation under s 27 of the Children Act and a sharing of the burden by the authorities.

29.

… The duty under s 17 is to assess the needs of the child and “need” in s 17(10)(a) includes situations in which the child is unlikely to maintain a reasonable standard of health or development without the provision of services by “a” local authority. The provision is not restricted to services that would be provided by the authority making the assessment.

30.

For these reasons, in my judgment Lambeth and Wandsworth came under a duty under s 17 to assess Ms Stewart's children's needs but Hammersmith did not ...”.

In my judgement it is not legitimate to seek to read across the definition of “within their area” from the altogether different factual context and the different statutory code in R(Stewart) relating to the duty of a housing authority to provide accommodation for homeless persons to the very different circumstances of the treatment of T’s EHCP when his parents were living with him overseas as part of his father’s service deployment.