Child's play; 'Risk' after R v Porter
27.08.2008
Child's play; 'Risk' after R v Porter
Wednesday, August 27, 2008
Gerard Forlin recently wrote an article in collaboration with Patrick Harrington QC, published in the New Law Journal, covering the recent judgment in R v Porter [2008] EWCA Crim 1271 and the extension to the legal test of “risk” under the Health and Safety at Work etc Act 1974. Both had recently acted successfully in the appeal overturning the conviction of James Porter for a breach of his duty under s. 3(1) of the Health and Safety at Work Act 1974.
Click here for the full text of the article published in the August edition of the New Law Journal.
Click here for previous coverage of the judgment on our website.
Click here for the full text of R v Porter [2008] EWCA Crim 1271.
Milestone decision for social services authorities
08.08.2008
Milestone decision for social services authorities
Friday, August 08, 2008
R (on the application of M) v Slough Borough Council [2008] UKHL 52
Click here for full text.
The House of Lords has held that a social services authority does not owe a duty to provide residential accommodation under section 21(1) of the National Assistance Act 1948 to a person from abroad whose only needs are for housing and health care provided by the National Health Service.
M arrived in the UK from Zimbabwe in 2001 on a six month visa and has remained here without leave ever since that leave expired in 2002. He was subsequently diagnosed HIV positive and may have AIDS. He applied to Slough social services for assistance when he lost his accommodation. The authority concluded that M needed medication, which had to be kept in refrigerated conditions, and to see a doctor every three months. The National Health Service provided both the checks ups and the medication. Accordingly, Slough took the view that M was not owed any duty under s.21(1).
M challenged that decision and Collins J allowed his claim holding that M was a person “in need” due to his medical condition. The Court of Appeal upheld that decision. Slough appealed to the House of Lords.
Kelvin Rutledge represented Slough Borough Council throughout.
The House of Lords allowed Slough’s Appeal. The Appellate Committee unanimously held that: (i) a need for medical treatment or medical care simpliciter is not a “need” for the purposes of s.21(1)(a); (ii) nor is a need for shelter, warmth, food and other basic necessities a relevant need; (iii) a relevant need for the purposes of s.21(1)(a) is a need either to be looked after physically (e.g. help with dressing, toileting, shopping etc) or a need to be watched over to prevent harm to oneself or to others; (iv) s.21(1)(a) only applies to current needs, not future needs.
This decision will have a significant impact on the responsibilities of social services authorities in relation to the provision of support for persons from abroad. It is expected that in future fewer cases will remain with local authorities and the majority will be the responsibility of the National Asylum Support Service.
Social Services - homeless child or a child in need? Court of Appeal's view on where responsibility lies
07.08.2008
Social Services - homeless child or a child in need? Court of Appeal's view on where responsibility lies
Thursday, August 07, 2008
G v SOUTHWARK LBC [2008] EWCA Civ 877 (Court of Appeal, 29th July 2008)
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Imagine a child aged 16 or 17 arrives at the Town Hall and claims that he has been thrown out by his mother. Is he a homeless child, or is he a child in need? Is he the responsibility of housing or of social services? Or of both?
In G v Southwark LBC [2008] EWCA 877 the Court of Appeal found, by a majority and in a reserved judgment, that Southwark’s social services department acted lawfully when it assisted him under section 17 of the Children Act to make an application to the HPU for accommodation under Part 7 of the Housing Act 1996 rather than itself accommodating him under section 20 of the Children Act 1989. In so doing it addressed important issues left open for later determination by the House of Lords last February in M v Hammersmith & Fulham LBC, and explored the reach of and interrelationship between sections 17 and 20 of the Children Act and Part 7 of the Housing Act 1996.
G’s was a paradigm case. He had twice been thrown out of his home by his mother and could not return there. He presented to social services who assessed him and decided to provide him with assistance in the form of helping him make an application to the HPU. The Claimant challenged the decision as unlawful. He wanted section 20 Children Act accommodation and the full range of services afforded to looked after children including (after 13 weeks) leaving care services.
The parties’ contentions were:
a) G asserted that he was a child, was in need, and was in Southwark’s area. He required accommodation. His mother was prevented (by his behaviour) from accommodating him. Therefore he met all the requirements of section 20 of the Children Act 1989. A statutory obligation arose to accommodate him. Sending him off to the HPU was a device to evade the possibly onerous lengthy and expensive responsibilities which flowed taking him into the looked after system. For good measure it was said (correctly) that if he was entitled to a service under section 20 he would not have a priority need for housing.
b) Southwark asserted that he did not require a service under section 20 at all, but only under section 17. The Guidance in LAC (93) 13, as explained by Holman J Wandsworth Hackney and Islington (2007, Admin Court, Holman J), drew a line between services which could be provided under section 17 of the Children Act and those which had to be provided under section 20. Where accommodation was required by a lone child and the other requirements were met, the service had to be met under section 20. But where mere help was required, that help could be provided under section 17. This was such a case. All he needed was help to find his own accommodation by being assisted in making a homelessness application.
The case had been put back to await the decision of the House of Lords in M v Hammersmith & Fulham LBC, which decided materially that:
a) Local authorities should have a protocol in place between housing and social services departments;
b) Section 20 duties take precedence over full Part 7 Housing Act 1996 duties. 16 and 17 year olds who are entitled to a service under section 20 are not in priority need;
c) The question of whether the short line of cases following Wandsworth, Hackney and Islington were correctly decided was left open.
The majority (Longmore LJ and Pill LJ) found that:
1) The line between lawful provision under section 17 and under section 20 was as identified by Holman J in the Wandsworth, Hackney and Islington cases. The line was identified in LAC (93) 13 and was between mere help with accommodation on the one hand and providing accommodation on the other. Moreover the Guidance in LAC (93) 13 was lawful.
2) What local authorities must not do is distort their judgments so as to avoid providing a service under section 20 when one ought to be provided thereunder. There was no evidence in this case that that was what Southwark had done.
3) There is a factual spectrum between providing accommodation on the one hand and merely providing help with accommodation on the other. Southwark’s decision that assisting in making a homelessness application was not open to challenge.
There was a strong and lengthy dissenting judgment by Rix LJ. On any view, he considered that G required accommodation. The requirements of section 20 were met. It was not open to Southwark, he found, to say that his need was merely for help with accommodation.
G’s challenge and appeal therefore failed. Leave to appeal to the House of Lords was refused by the Court of Appeal. G intends to appeal to the House of Lords.
The importance of the case is that when considering whether a child requires accommodation, the social services department need not do so on the fiction that the HPU cannot help.
Bryan McGuire acted for Southwark LBC.
