Assessment of need

February 4th, 2019

In R (JA) v Bexley LBC (2019) EWHC 130 (Admin) there was a decision, following an assessment, that children were not in need of accommodation and support pursuant to Section 17 of the Children Act 1989 (“the 1989 Act”). The Judge described the legal framework as follows:-

(1)       The general duty under Section 17(1), together with paragraph 1 of Schedule 2 to, the 1989 Act imposes a duty upon local authorities to assess the needs of putative children in need: R (G) v LB Barnet [2004] 2 AC 208;

(2)       A child without accommodation is a child in need within the meaning of Section 17(10): R (G) v Barnet;(3)       A local authority has power to provide services under Section 17 to a child even though that child lacks immigration status, but it can provide services to the child and their carer only together as a family if and to the extent that the failure to do so would breach the Convention rights of either the child or their carer: R (MN) v London Borough of Hackney [2013] EWHC 1205;

(4)       Relevant principles are helpfully set out in R (OK and others) v London Borough of Barking and Dagenham [2017] EWHC (Admin) 2092;

(5)       The threshold of enquiring whether the child of a family in need acquires particular significance because that determination triggers powers which will come close to duties to make basic provision if in the absence of such provision the consequence is destitution;

(6)       It is a matter for the judgment and discretion of the local authority whether or not a child “is in need”, and appropriate respect should be given to the judgment of local authorities who carry out the exercise on a regular basis in circumstances where financial resources are limited;

(7)       If the decision is within the range of reasonable decisions open to the authority it is not for the Court to substitute its own decision;

(8)       One factor that is clearly relevant is if it appears that a family has been able to support themselves for a period of time without recourse to public funds the question arises as to how they were able to support themselves during that period and why are they unable to continue to provide for themselves;

(9)       If the applicant does not provide a satisfactory explanation in respect of sources of support that have been provided in the past but are said to have dried up that may justify an adverse inference;

(10)    Likewise if there is a lack of co-operation from an applicant for assistance then adverse inferences may properly be drawn;

(11)    Where the decision being made is one that has a profound impact in relation to vulnerable persons it is necessary to give close scrutiny to the decision, and a higher level of intensity of review is justified: R (S and J) v London Borough of Haringey [2016] EWHC 2692.

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