Osbornes Successful in s.17 Children Act Challenge13 Aug 2017
The High Court has decided that a local authority breached the Children Act 1989 for failing to carry out lawful reassessment of needs of an autistic child.
The case is R (On the Application of AC & SH) v London Borough of Lambeth Council  EWHC 1796 (Admin). The Claimants’ mother sought assistance from the Defendant with accommodation and financial support under s.17 of the Children Act 1989 on the basis that the family were destitute. Osbornes represented the Claimant children, through their mother and Litigation Friend, in a claim for judicial review against the Defendant local authority’s assessment that they were not destitute or at risk of homelessness, and therefore not children in need under s.17.
There were two grounds of challenge:
- The assessment was not procedurally fair, in particular in that Lambeth did not notify its intention to make adverse findings about the credibility of the Claimants’ mother; and
- The Defendant had failed in its duty to re-assess AC’s needs as an autistic child in need following that diagnosis.
The claim was successful on Ground 2.
In September 2016 the Defendant carried out an assessment of needs under s.17 of the Children Act 1989 in relation to AC (aged 10) and SH (aged 4). Their mother sought assistance because she was destitute and at risk of imminent homelessness. It was concluded by the Defendant that AC and SH were not children in need and specifically that the children were not destitute or at genuine risk of homelessness. This conclusion was reached in reliance of adverse findings as to the credibility of the children’s mother.
Following the assessment, AC was formally diagnosed with autism. The report was sent to the Defendant, who was invited to reassess based on new evidence that AC was disabled, but they refused to reassess and concluded that the diagnosis made no significant changes to the family’s circumstances or to the outcome of the initial s.17 assessment.
On Ground 1, Mrs Justice Cheema-Grubb held that the assessment process, although very far from perfect, had not been procedurally unfair. The challenge on the first ground of procedural unfairness was therefore unsuccessful.
On Ground 2, the Claimants argued that the defendant had failed in its duty to assess AC as an autistic child in need even after accepting that his formal diagnosis means that he falls within s.17 Children Act 1989. Mrs Justice Cheema-Grubb agreed, allowing the claim on Ground 2, holding:
“… I am driven to the conclusion that the defendant has failed to carry out an assessment of AC as a child in need despite the indications from his mother that he had needed support and the confirmation of those difficulties in the post September 2016 autism assessment.”
“What degree of assistance AC properly needs, whether the defendant will provide it and whether it will include any provision as to accommodation are not matters for the court but this is self-evidently not a case in which the court can be satisfied that had a lawful assessment actually been carried out the outcome would have been the same: a determination that there were no needs at all to be met by the defendant. In the circumstances s.31 (2A) Senior Courts Act 1981 does not avail the defendant and relief will be granted.”
The Defendant’s decision not to treat AC as a child in need following its assessment of 29 September 2016 was quashed and a fresh assessment was ordered.
The case demonstrates the importance of comprehensive assessments that are child-focused and take into account issues of disability. The case is also an important reiteration to local authorities that they must be mindful of their statutory duties throughout their involvement with families and that they should properly consider requests for reassessment of children in light of new evidence. In this case, the failure to do so was their downfall.
Elma Tavares and Alex McMahon of Osbornes were instructed on behalf of the Claimant children. Grainne Mellon of Garden Court Chambers was Counsel for the Claimants.
The full judgment can be found here:
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