United Kingdom House of Lords Decisions

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

Regina v. London Borough of Barnet (Respondents)

ex parte G (FC) (Appellant)

Regina v. London Borough of Lambeth (Respondents)

ex parte W (FC) (Appellant)

Regina v. London Borough of Lambeth (Respondents)

ex parte A (FC) (Appellant)

ON

THURSDAY 23 OCTOBER 2003

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hope of Craighead

Lord Millett

Lord Scott of Foscote

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Regina v. London Borough of Barnet (Respondents) ex parte G (FC) (Appellant)

Regina v. London Borough of Lambeth (Respondents) ex parte W (FC) (Appellant)

Regina v. London Borough of Lambeth (Respondents) ex parte A (FC) (Appellant)

[2003] UKHL 57

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1.   These three appeals concern the responsibilities of local authorities for the accommodation of children who are in need. The first and principal legal issue relates to the nature and extent of the duty imposed on local authorities by section 17 of the Children Act 1989. The claimants' case is that section 17(1) requires a local authority to assess the needs of a child who is in need and to meet his needs when they have been assessed. The defendant local authorities refute both limbs of this claim. A second issue is whether a local authority may insist on providing accommodation for a child alone, as distinct from a child and his mother, when a child is in need of accommodation and it would cost no more to provide accommodation for both of them.
2.   In two of the cases the accommodation problems of the claimants have been resolved since the proceedings started. In the third case, involving two disabled children, there is an issue between the parties on the quality of the accommodation currently provided for the children and their family. I must first outline the facts and history of the three cases. In each case the claimant was a mother as a single parent. The three claimants are G, A and W.
The three cases
3.   The first case, in chronological sequence is G's case: R (on the application of G) v London Borough of Barnet. G is a person from abroad who, until recently, was not eligible for housing assistance. She is a Dutch national of Somali origin. She has a son, born in May 1999. She entered this country on a Dutch passport. She claimed she left the Netherlands because of social ostracism encountered there in the Somali community on account of her child's illegitimacy, and that she came to this country to look for the child's father. An application for income support, and an application to the London Borough of Barnet for assistance with housing, were refused because G did not satisfy the habitual residence test. She then sought assistance from Barnet council as the local social services authority. The council assessed the child's needs as best served by the return of both mother and child to Holland where they were entitled at once to accommodation and other benefits. The council did not accept the mother's account of her reasons for coming to London. By a decision letter of 9 October 2000 the council told her that her weekly payments for accommodation and subsistence would stop in a week's time.
4.   G applied for judicial review of this decision. It was common ground she was suitable to look after her boy, and that it was not in the boy's best interests to be removed from her care. It was also common ground that if, as happened, the mother refused to return to the Netherlands, the council intended to place the child with foster parents, and to provide no accommodation for the mother. In the event interim relief was granted in the judicial review proceedings. On 18 January 2001 Hooper J quashed the decision of 9 October 2000: see [2000] EWHC Admin 5, (2001) 4 CCLR 33. The child was in need, and it was in the best interests of the child to live with his mother. Given the duties imposed on the local authority by section 17(1) of the Children Act 1989, and the powers granted to it by section 23, the local authority 'has no alternative' but to place the child with his mother assuming it is reasonably practicable to do so. This was so even though the mother was, in the view of the local authority, acting unreasonably: see para 18.
5.   The council appealed. On 11 April 2001 the Court of Appeal, comprising Ward, May and Rix LJJ, allowed the appeal and dismissed the judicial review application: [2001] EWCA Civ 540, (2001) 4 CCLR 128. Ward LJ said the duty imposed by section 17(1) was met by providing financial assistance for the return of the mother and child to Holland. The local authority did not act unlawfully in refusing to provide assistance in cash or in kind to assist in the provision of accommodation for the mother and her child. Section 17(3) and (6) imposed no such duty on the local authority. Section 20 imposed a duty to provide accommodation for the child, not for the parent and the child.
6.   The second appeal is A's case: R (on the application of A) v London Borough of Lambeth. This concerns a family who have been housed but whose accommodation is not suitable for the children's needs. A is the mother of three children. Unhappily two of the children, aged 9 and 7, are autistic. They have severe learning difficulties and require constant supervision. The family's accommodation is a ground floor two bedroom local authority flat, rented from the London Borough of Lambeth. The flat has no garden or outside play area. The two disabled children are prone to run out of the front door and climb through the windows. This is dangerous because the flat is very close to the road. The accommodation poses severe disadvantages to the children's health and wellbeing. Core assessments of the needs of the children under the Children Act 1989 were to the effect that the family need to be re-housed away from the road, to have a safe outside play area and to have four bedrooms
7.   A challenge by the mother to the decision of the council as housing authority was abandoned. The mother now seeks, against the council as local social services authority, a mandatory order compelling the council to find and provide suitable accommodation in line with the children's assessed needs. Both the judge at first instance, Scott Baker J, and the Court of Appeal, comprising Chadwick and Laws LJJ and Sir Philip Otton, held the court has no power to intervene even though, even in the words of Scott Baker J, the family have been 'less than satisfactorily treated' by Lambeth council: [2001] EWCA Civ 1624, (2001) 4 CCLR 486.
8.   The third case is W's case: R (on the application of W) v London Borough of Lambeth. W had become homeless intentionally within the meaning of that expression in the homelessness legislation. She has two children, aged 16 and 7. She sought assistance for accommodation from the London Borough of Lambeth as local social services authority. This was refused. Maurice Kay J dismissed an application for judicial review of the council's decision. The decision of the Court of Appeal in A's case obliged him to do so. By a further assessment, dated 9 April 2002, the council decided it should explore placing the children with extended family members as a short term measure while the mother sought alternative accommodation. Should the need arise provision could be made for the children alone under section 20 of the Children Act 1989.
9.   On appeal the Court of Appeal, comprising Brooke, Laws and Keene LJJ, dismissed an appeal in respect of the council's decision of 9 April 2002: see [2002] EWCA Civ 613, [2002] 2 All ER 901. The court considered there were not sufficient grounds for interfering with the council's decision. Section 17 imposes a 'target' duty on the council, but in relation to individual children the council only has a power. The council had given intelligible and adequate reasons why it was not willing to exercise its power in this case, given all the other pressures on its resources. Where all else failed the local authority has power to help under section 17, but it is entitled, if it sees fit, to reserve this power for extreme cases which the instant case had not yet become: [2002] 2 All ER 901, 926-927, para 83.

    Allocation of resources

10.   Behind the legal questions arising in these appeals is the seemingly intractable problem of local authorities' lack of resources. Local authorities discharge a wide range of functions, from education to housing, upkeep of roads to disposal of waste. All these activities call for money, of which there is never enough to go round. Often there is also a shortage, sometimes acute, of other resources such as trained staff.
11.   The financial resources of local authorities are finite. The scope for local authorities to increase the amount of their revenue is strictly limited. So, year by year, they must decide what priority to give to the multifarious competing demands on their limited resources. They have to decide which needs are the most urgent and pressing. The more money they allocate for one purpose the less they have to spend on another. In principle, this decision on priorities is entrusted to the local authorities themselves. In respect of decisions such as these council members are accountable to the local electorate.
12.   The ability of a local authority to decide how its limited resources are best spent in its area is displaced when the authority is discharging a statutory duty as distinct from exercising a power. A local authority is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose. A power need not be exercised, but a duty must be discharged. That is the nature of a duty. That is the underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice.
13.   The extent to which a duty precludes a local authority from ordering its expenditure priorities for itself varies from one duty to another. The governing consideration is the proper interpretation of the statute in question. But identifying the precise content of a statutory duty in this respect is not always easy. This is perhaps especially so in the field of social welfare, where local authorities are required to provide services for those who need them. As a general proposition, the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area. In such cases the local authority may have a wide measure of freedom over what steps to take in pursuance of its duty.
14.   Towards one edge of this spectrum are instances such as section 23(1) of the Children Act 1989. Under this subsection it is the duty of a local authority looking after a child to provide accommodation for him while he is in the authority's care. This is a duty of an absolute character. An example of the opposite edge of the spectrum, taken from the field of education, is the broad duty imposed on a local education authority by section 8 of the Education Act 1944, now section 14 of the Education Act 1996, 'to secure that there shall be available for their area sufficient schools .. for providing primary education'. In R v Inner London Education Authority, Ex p Ali (1990) 2 Admin LR 822, 828, Woolf LJ described this as a 'target duty'.
15.   Often the duty is expressed in more specific terms than this, but the terms themselves give the local authority an area of discretion. Paragraph 9 of schedule 2 of the Children Act 1989 imposes upon every local authority a duty to provide such family centres 'as they consider appropriate' in relation to children in need within their area. Another form of words apt to give considerable latitude to a local authority is where the duty is 'to take reasonable steps' to achieve a stated object. Paragraph 4 of schedule 2 of the Children Act 1989 is an illustration of this. A local authority is required to take reasonable steps to prevent children within its area suffering ill-treatment or neglect. Again, although not explicitly stated, a statute may implicitly afford a local authority considerable latitude. Section 18(1) of the Children Act 1989 provides that every local authority shall provide such day care for pre-school children in need within its area 'as is appropriate'. In deciding what is appropriate the local authority may properly take into account a wide range of matters including cost.
16.   The primary question raised by these appeals is the proper interpretation, in this context, of section 17(1) of the Children Act 1989.

    Part III of the Children Act 1989

17.   Part III of the Children Act 1989, comprising sections 17 to 30, concerns the provision of local support for children and their families. Before the passing of this Act child care law was widely criticised as confusing, unnecessarily complex and in places unjust. The responsibilities of local authority social service departments towards families with children were set out in two different sets of legislation. Child care law provided for children to be supported within the family in certain circumstances. Thus, section 1 of the Child Care Act 1980 imposed on local authorities the duty to make available such assistance as might promote the welfare of children by diminishing the need to receive children into care or to bring them before a juvenile court. Section 2 of the same Act imposed a duty on local authorities to receive a child into voluntary care in certain circumstances. Quite separate from this child care legislation, health and welfare legislation made provision for services for children as part of local authorities' responsibilities for particular groups of people of all ages, such as those who were mentally handicapped or physically disabled. The principal statutes were the National Health Service Act 1977, the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970.
18.   One object of Part III of the Children Act 1989 was to unify these two sets of legislation. The intention of the government was to ensure that in all cases the children concerned should receive the standard of care and protection and professional review appropriate to their needs. Local authorities were to be given a broad 'umbrella' power to provide services to promote the care and upbringing of children. The government white paper, 'The Law on Child Care and Family Services' (1987) (Cm 62), explained that broadly speaking all existing powers and duties to provide services to children were to be maintained and amalgamated, sometimes with modifications. This would involve the amalgamation of sections 1 and 2 of the Child Care Act 1980, and the addition of provisions from the health and welfare legislation: see chapter 2, paras 14 to 19.
19.   I turn to the relevant legislative provisions. Section 17 of the Children Act 1989 is the first section in a small group of sections concerning provision of services for children 'in need' and their families. A child is taken to be in need if he is disabled or if, without the provision of local authority services, he is unlikely to achieve or maintain 'a reasonable standard of health or development' or his health or development is 'likely to be significantly impaired': section 17(10). A child without accommodation is a child in need: R v Northavon District Council, Ex p Smith [1994] 2 AC 402, 406, per Lord Templeman. Section 17(11) defines disability, 'development' and 'health' in wide terms.
20.   Section 17(1) prescribes the 'general duty' of local authorities regarding children in need. The general duty of every local authority is to provide a range and level of services appropriate to the needs of such children:
'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; and

(b)  so far as is consistent with that duty, to promote the upbringing of such children by their families,

    by providing a range and level of services appropriate to those children's needs.'

21.   This general duty is augmented by a motley collection of 'specific duties and powers' set out in Part I of schedule 2: section 17(2). Local authorities are given these specific duties and powers principally for the purpose of facilitating the discharge of the general duty imposed by section 17(1). Some of these specific duties and powers are general in their impact on children, such as the duty to produce and keep under review plans for the provision of children's services under Part III of the Act (paragraph 1A). Others relate to the circumstances of a particular child. Two examples will suffice, one of a power, the other of a duty. A local authority is empowered to assess the needs of a child in need under the Children Act 1989 at the same time as any assessment of his needs is made under other enactments, such as the Chronically Sick and Disabled Persons Act 1970 (paragraph 3). A local authority is under a duty to take such steps as are reasonably practicable to enable a child who is not living with his family to live with them or promote contact between them if that is necessary to safeguard or promote his welfare (paragraph 10).
22.   Two other provisions in section 17 call for mention. Both are enabling powers in respect of any service provided by an authority in the exercise of functions conferred on the authority by section 17. If provided with a view to safeguarding or promoting the child's welfare, the service may be provided for the family of a particular child in need, or any member of his family: section 17(3). The service may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash: section 17(6). The reference to accommodation in this subsection was inserted by section 116 of the Adoption and Children Act 2002 to lay at rest doubts arising from the Court of Appeal decision in A's case.
23.   Section 17 covers a wide range of services. Section 20 is focused more narrowly. It is concerned specifically with the accommodation needs of children in need. Section 20 obliges every local authority to provide accommodation for children in need who appear to need accommodation:
'(1) Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.'

24.   'Prevented … for whatever reason' in paragraph (c) is to be interpreted widely. It includes a case where the person caring for the child is intentionally homeless. A child is not to be visited with the shortcomings of his parents. A similarly wide interpretation was given to the comparable provision in section 1 of the Children Act 1948 the predecessor to section 2(1) of the Child Care Act 1980: see Attorney General ex rel Tilley v Wandsworth London Borough Council [1981] 1 WLR 854.

    Section 17(1) of the Children Act 1989

25.   I turn to the interpretation of section 17(1). Section 17(1) is not just a statement of general principle, important though it is in that regard. Nor does it merely confer a new or enlarged function on local authorities. It imposes a duty. It imposes a duty expressed to be additional to the other duties imposed by Part III of the Children Act 1989. By definition, the additional obligation thus imposed on local authorities is enforceable by the court in appropriate circumstances on the application of a person with sufficient interest. The crucial issue is to identify the content of this additional duty.
26.   At first sight section 17(1) does not seem to impose a duty in respect of the particular needs of an individual child. The duty is expressed in general, overall terms regarding the collective needs of children in need in the local authority's area. It is not expressed by reference to the needs of any one child. This generality, however, is not conclusive. The generality of an obligation regarding children in a local authority's area is not of itself inconsistent with the obligation being a duty in relation to the needs of individual children in the area. An obligation in respect of the general may include an obligation in respect of the particular. A duty in respect of an entire class or group as a whole may include a duty in respect of the individual members of the class or group. It all depends upon the language read in its context.
27.   So I turn to the language of section 17(1). The starting point is to note the statutory description of the duty as a 'general' duty. Read in context, this description is not, of itself, of much value as a pointer on the issue now under consideration. This description is used by way of contrast to the 'specific' duties and powers mentioned in section 17(2). The latter duties and powers are specific because they relate to particular, limited aspects of the general duty imposed by section 17(1). The purpose of section 17(1) is wider. The purpose is to set out, at the very forefront of Part III and by way of contrast to the specific duties and powers, a primary additional duty of a more comprehensive character.
28.   Next, the nature of the general duty imposed on a local authority by section 17(1): this is twofold. The duty is to safeguard and promote the welfare of children within its area who are in need, and to promote the upbringing of such children by their families. 'Safeguard' and 'promote' are broad terms; necessarily so, in the context of the welfare of a child. There is nothing in the use of these terms to suggest the duty is not a duty in respect of each child within the local authority's area who is in need. The phrase 'children within their area who are in need' refers to all the children in need within the local authority's area. But the duty to promote the welfare and upbringing of all such children makes little sense unless it is a duty in respect of the welfare and upbringing of each such child. Indeed, if this were not so section 17(1) would be a poor sort of additional general duty. Section 22 is another example of a duty, described as a general duty, to safeguard and promote the welfare of children. A local authority 'looking after any child' is obliged 'to safeguard and promote his welfare'. It cannot be doubted that this duty under section 22(3), although described as a general duty and although expressed in broad terms, is a duty which relates to the individual child and is enforceable as such.
29.   Section 17(1) then proceeds to state the means by which this duty is to be discharged: 'by providing a range and level of services appropriate to those children's needs.' This, again, is the language of generality. But, here also, the language could hardly be otherwise, given the comprehensive nature of the obligation imposed. Section 17(1) deliberately eschews references to particular types of services. Section 17(1) is intended to be wide in its scope because the needs of children vary widely. So local authorities must provide an appropriate range and level of services, whatever those services may be. Section 17(3) and (6) make clear that the types of services mentioned in those two subsections are among the services a local authority may provide in carrying out its duty under section 17.
30.   Thus far I am broadly in agreement with the interpretation urged by the claimants. But I stop short of the conclusion submitted by them. In my view section 17(1) does not impose an absolute, or near absolute, duty on local authorities to meet the specific needs of every child who is in need, whatever those needs may be. There is no place for absolutes in such a wide-ranging duty regarding the welfare of children. Nor would that be consistent with the qualified nature of some of the specific duties imposed in Part I of schedule 2. The 'needs' of a child for services is itself an inherently imprecise concept. 'Needs' are open-ended. Some limit can be placed on what are to be regarded as the needs of a child for the purposes of this legislation if the legislation is read, as it should be, as a reference to reasonable needs. Even so, this leaves much scope for differing views. Questions of degree will often arise. Likewise, the statutory obligation to provide a range and level of services 'appropriate' to the needs of children in need gives a local authority considerable latitude in determining what is 'appropriate' in an individual case in all the circumstances. In some cases the type and level of service provided may properly fall short of meeting all the child's needs as assessed. The extent of the latitude in each case depends upon the circumstances, prominent among which are the nature of the service in question and the nature and extent of the needs of the child. Cost is also an element which may properly be taken into account in deciding what is 'appropriate' in a particular case. The extent to which cost, and hence the resources of a local authority, may be taken into account depends upon all the circumstances including how basic is the assessed need, the ease or difficulty with which it may be met, and the consequences of not meeting it. In a word, despite this latitude the council must act reasonably.
31.   The degree of latitude thus afforded to a local authority may make it difficult for a claimant to establish a breach of this duty. But this is not a sufficient reason for denying the existence of the duty. Nor are the default powers of the Secretary of State under section 84 of the Children Act 1989 an adequate substitute for the ability to have recourse to the court. These default powers cannot be expected to provide an adequate remedy in individual cases.
32.   I am fortified in my view that section 17 imposes a duty in respect of the individual child by noting the consequences of the alternative approach. On the local authorities' approach, since section 17(1) does not impose a duty in relation to an individual child, it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1). That cannot be right. That would go far to stultify the whole purpose of Part III of the Children Act 1989. The first step towards safeguarding and promoting the welfare of a child in need by providing services for him and his family is to identify the child's need for those services. It is implicit in section 17(1) that a local authority will take reasonable steps to assess, for the purposes of the Act, the needs of any child in its area who appears to be in need. Failure to carry out this duty may attract a mandatory order in an appropriate case, as occurred in R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235 (2001) 4 CCLR 295. Richards J ordered a local authority to carry out a full assessment of a child's needs in accordance with the guidance given by the Secretary of State in 'Framework for the Assessment of Children in Need and their Families' (March 2000).
33.   Where does such an assessment lead? According to the local authorities, nowhere as a matter of legal obligation, so far as an individual child is concerned beyond, presumably, an obligation on the part of the authority to consider the assessment and decide whether to exercise any of its statutory powers. That would be a surprisingly weak outcome. That would represent a lacuna in the law relating to children in need. I cannot think Parliament intended this should be so. I prefer a different approach. If section 17(1) is apt to impose a duty on a local authority to take reasonable steps to assess the needs of an individual child in need, it is equally apt to impose the duty mentioned above to provide a range and level of services 'appropriate' to those needs.
34.   In several cases it has been assumed, or conceded, that section 17(1) imposes an obligation in respect of the needs of an individual child; for instance, in R v Tower Hamlets London Borough Council, Ex p Bradford (1997) 1 CCLR 294, 301, per Kay J, and R v Wigan Metropolitan Borough Council, Ex p Tammadge (1998) 1 CCLR 581, 584, per Forbes J. In other cases, where the point has been argued, the contrary view has been preferred. These cases culminated in the decision of the Court of Appeal in the instant case involving A and her two disabled children: R (on the application of A) v Lambeth London Borough Council (2001) 4 CCLR 486. The Court of Appeal held that an assessment of needs under section 17 does not give rise to a duty enforceable at the suit of an individual, although a decision by a local authority not to exercise its powers under section 17 is open to judicial review on ordinary principles. For the reasons I have given I respectfully consider that the responsibilities of local authorities under section 17(1), although far from absolute, are of a higher order than this.
35.   I should add a further comment regarding the assessment of needs under section 17. In R v Gloucestershire County Council, Ex p Barry [1997] AC 584 a question about the relevance of cost arose in the context of a duty to make certain arrangements where a local authority is satisfied this is 'necessary' in order to meet the 'needs' of disabled persons. The majority of the House held that on the proper interpretation of section 2(1) of the Chronically Sick and Disabled Persons Act 1970 the local authority is entitled to have regard to its resources when performing this duty. Whether, under that section, resources should be taken into account when assessing 'needs' as distinct from when the authority is deciding whether it is 'necessary' to meet those needs, is not a matter which arose in Barry's case. In Barry's case the local authority had merged the two stages into one by providing services in accordance with elaborate 'eligibility criteria'. What was in issue was whether the authority could lawfully raise the eligibility criteria because of shortage of money. Later cases, such as R v Sefton Metropolitan Borough Council, Ex p Help the Aged (1997) 1 CCLR 57 and R v East Sussex County Council, Ex p Tandy [1998] AC 714, show it is desirable to keep these two stages separate. Ordinarily cost, where relevant, will be a matter to be taken into account by a local authority when considering its response to an assessed need rather than at the stage of assessment. That is the position under section 17(1) of the Children Act 1989.

    Accommodating a child with his parents

36.   I now turn to the second principal issue. This concerns one particular facet of the problem of providing accommodation for families with children. This problem arises in G's case R (on the application of G) v London Borough of Barnet) [2001] EWCA Civ 540, (2001) 4 CCLR 128) and W's case (R (on the application of W) v London Borough of Lambeth [2002] EWCA Civ 613, [2002] 2 All ER 901). These two appeals raise a question solely of principle. As already noted, the accommodation problems of these claimants have been resolved since the proceedings started. The appeals are being pursued because the question of principle is of everyday importance. The question concerns the circumstances in which a local social services authority may be obliged to provide accommodation and subsistence for a child together with his mother, as distinct from the child alone, under sections 17 or 23 of the Children Act 1989.
37.   In the cases of G and W the local authority was minded, if necessary, to provide accommodation for the children under section 20 of the Children Act 1989 but not their mothers. This raises an acutely difficult problem. Before considering this I must first mention, and reject, a point made by Mr Howell QC based on section 23 of the Children Act 1989. Mr Howell submitted that if a local authority provides a child in need with accommodation in fulfilment of its duty under section 20, the local authority is under a duty to make arrangements to enable the child to live with his mother. If necessary, the local authority must provide accommodation for the mother as well as the child. The source of this duty, he submitted, is section 23(6) of the Act.
38.   I cannot accept this submission. Section 23(6) is one of the provisions in section 23 concerned with the way a local authority is to discharge its obligation to provide accommodation for a child whom it is looking after. The section is not concerned with providing accommodation for anyone else. The relevant effect of section 23(6) is to require a local authority looking after a child to 'make arrangements to enable him to live' with a parent or other specified person unless that would not be reasonably practicable or consistent with his welfare. This provision assumes the mother or father of the child already has accommodation which the child may enter and share so as to live there with his parent. Similarly with the other persons, such as relatives and friends, mentioned in paragraphs (a) and (b) of section 23(6). Section 23(6) does not impose an obligation on a local authority to provide accommodation for the parent or other persons. It is concerned with placement, not housing. Section 23 does not assist the claimants. On this I agree with the decision of the Court of Appeal in R (on the application of G) v Barnet London Borough Council [2001] EWCA Civ 540, (2001) 4 CCLR 128.
39.   The setting in which the problem now under consideration arises is this. In the ordinary course the essential accommodation needs of most families with children are met, where necessary, under the housing legislation. Part VI of the Housing Act 1996 makes provision regarding the allocation of housing accommodation. Every local housing authority must have a scheme for determining priorities in the allocation of housing accommodation. The scheme must give reasonable preference to, among others, people living in unsatisfactory housing conditions and families with dependent children. Housing accommodation must be allocated only in accordance with the housing authority's published scheme (section 167).
40.   Part VII of the Housing Act 1996 makes provision for cases of homelessness. A local housing authority must make inquiries into cases of homelessness or threatened homelessness (section 184). The authority must provide accommodation on an interim basis (section 188) and thereafter (section 193) if the applicant is homeless, eligible for assistance and has a priority need. A person living with dependent children has a priority need (section 189).
41.   Certain classes of persons from abroad are not eligible for this assistance. They fall into two broad categories (there are exceptions). First are persons who are subject to immigration control under the Asylum and Immigration Act 1996. The second category consists of persons not yet habitually resident in the Common Travel Area: section 185, and the Homelessness (England) Regulations 2000 (SI 2000/701).
42.   A further class of persons is also excluded from the scope of the homelessness provisions. This comprises persons who have become homeless intentionally. Where a person is homeless, eligible for assistance and has a priority need but has become homeless intentionally, the authority's obligation is limited to providing accommodation for a period which will give the applicant a reasonable opportunity to secure accommodation for his occupation, together with advice and appropriate assistance (section 190). A person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation available for him and which it would have been reasonable for him to continue to occupy (section 191).
43.   In the ordinary way it is in cases of ineligibility and intentional homelessness that parents with children have recourse to their local social services authority for assistance with accommodation under the Children Act 1989. Housing assistance not being forthcoming from their local housing authority under the housing legislation, parents turn to another potential source of assistance. Sometimes the local social services authority will be the same local authority as the local housing authority, sometimes not. Typically, in England, outside the metropolitan areas and leaving aside unitary authorities, the county council is the local social services authority and the district council is the local housing authority. Elsewhere, as in the cases involved in the three appeals before the House, a local authority may be both local social services authority and local housing authority. This should not, however, be allowed to obscure the fact that in acting in one or other of these capacities a local authority is exercising different statutory functions. The manner in which the functions of a local housing authority and those of a local social services authority are discharged does not differ according to whether two local authorities are involved or only one.
44.   One further point should be noted. Parliament has now specifically addressed the problem arising in cases where a child normally lives with a parent who is ineligible for housing assistance or has become homeless intentionally. Section 12 of the Homelessness Act 2002 has inserted an additional section, section 213A, into the Housing Act 1996 with effect from October 2002. The effect of section 213A is that in these cases the local housing authority must ensure the local social services authority is made aware of the case, if the applicant agrees. Then, if the social services authority requests the housing authority to provide advice and assistance in exercise of its functions under Part III of the Children Act 1989, the housing authority is obliged to provide the social services authority 'with such advice and assistance as is reasonable in the circumstances'. In the case of a unitary authority the housing department must provide the social services department with such advice and assistance as the social services department may reasonably request.
45.   I can now identify the difficulty. As already noted, a local authority is under a duty to provide accommodation for a homeless child under section 20 of the Children Act 1989. Children are vulnerable, and the Children Act 1989 makes special provision for this vulnerable sector of the community. Frequently the cost of providing accommodation for parent and child together, in the form of bed and breakfast accommodation or by way of a deposit in respect of rented private accommodation, is less than the cost of accommodating the child alone with a foster parent or in a residential institution. This suggests that, at least in such cases, the obviously sensible and desirable course is for the local authority to provide for the accommodation of both parent and child. In the usual way this course will be in the best interests of the child, and the local authority has power to take this course under section 17(3).
46.   But there is a snag. Taking this course with some homeless families would have a knock-on effect. Like cases must be treated alike. If this course were followed the inevitable effect, it is said, would be that social services authorities would find themselves inundated with family accommodation applications. They would find themselves having to provide for the housing needs of many or most families with dependent children where the parents are intentionally homeless or ineligible for housing assistance under the homelessness provisions of Part VII of the Housing Act 1996. W's case and G's case are examples. In W's case the mother was found to be homeless intentionally. She had been evicted for persistent non-payment of rent. In G's case the mother was newly arrived from Holland.
47.   Providing accommodation for these families, it is said, is not the function of a local social services authority. Nor does a local social services authority have the means to discharge this function, akin to that of a surrogate housing authority. The function of a social services authority under the Children Act 1989 is to provide accommodation for homeless children, not homeless families. Parliament has devised a detailed and carefully balanced structure regulating the supply of local authority housing. That scheme is administered by local housing authorities. Parliament has regulated when a parent with dependent children is entitled to housing accommodation. Families with dependent children should not be allowed to jump the housing queue. The statutory housing provisions cannot be circumvented by making an application in the name of a dependent child: R v Oldham Metropolitan Borough Council, Ex p Garlick [1993] AC 509. Nor should families be permitted to circumvent these provisions by relying on the duties of local social services authorities to meet the accommodation needs of children.

    Lambeth's policy

48.   Latterly some social services authorities, it seems, have sought to contain the scale of the financial problem associated with meeting the accommodation needs of homeless children by making accommodation available for children in these cases but not their parents. This approach was prompted, or confirmed, by the High Court decision in A's case in May 2001 that section 17 of the Children Act 1989 imposes no duty on a local authority in respect of an individual child.
49.   In September 2001 the social services department of Lambeth council, whose territory includes many deprived inner city areas and whose resources are under severe strain, adopted a general policy along these lines. The council would accommodate homeless children, as required by section 20 of the Children Act 1989. But it would not provide accommodation under section 17 for families applying to it on the ground of homelessness. Providing accommodation for the families of homeless children would divert funds and manpower resources away from other social services which should have priority. Lambeth considered that child protection, and the need to ensure children in its care are appropriately looked after, were the core activities to which it should give priority. A helpful description of the financial pressures besetting Lambeth council appears as appendix 3 to the judgment of Brooke LJ in W's case: [2002] 2 All ER 901, 933.
50.   The reason why this new policy contains the scale of the problem is that, not surprisingly, faced with the prospect of being separated from their children, most mothers make further efforts at self-help and, in a high percentage of cases, their efforts are successful. The experience of Lambeth council is that most potentially homeless families find accommodation for themselves by one means or another. Indeed in W's case Lambeth's evidence was that since adopting its new policy it had not been asked to accommodate a child alone pursuant to its duty under section 20 of the Children Act 1989. Thus, by refusing to accommodate the parent, the overall cost to the social services authority is considerably less than it would otherwise be. The authority ends up not having to accommodate either child or parent. A procedure along these lines was countenanced by the Court of Appeal in G's case: (2001) 4 CCLR 128, 139, paras 24, 25.
51.   The propriety of this general policy is now being challenged before your Lordships' House. The claimants contend it is not lawful for a local authority to offer to accommodate a child alone in the hope or expectation that the parent will refuse to be separated from her child. In G's case the child was 14 months old at the time of the initial decision. The mother adamantly refused to return to the Netherlands. The council decided to end the arrangements whereby G lived with her young child in bed and breakfast accommodation. The council offered instead to accommodate the child with foster parents, even though this would have been more expensive than the existing arrangements.
52.   This challenge is sought to be buttressed by reference to the obligation, inherent in article 8(1) of the European Convention on Human Rights, to take positive steps to secure or protect an effective respect for family life. Mutual enjoyment by parent and child of each other's company is a fundamental element of family life: K and T v Finland (2001) 36 EHRR 255, 287, para 151. The state must act in a manner calculated to allow those concerned to lead a normal family life: Z and E v Austria (1986) 49 DR 67, a decision of the European Commission on Human Rights. If in the particular case it is no more expensive to accommodate parent and child together, and if it is in the child's best interests to live with his parent, this positive duty requires that the accommodation provided for the child should be for the child together with his parent. Choosing to accommodate the child only in such a case would, it was submitted, be a decision which does not respect the family life of the child or his parent. Such a decision by a local authority would be unlawful: section 6(1) of the Human Rights Act 1998.
53.   At the heart of this issue lies the insoluble practical problem of separating those whose needs are genuine from those who are abusing the special protection afforded to children by the Children Act 1989. But the solution adopted by Lambeth council and others does not solve this problem. It does not distinguish the genuine case from the non-genuine. The solution which has been adopted is of universal, or near universal, application. It relies for its success on an expressed intention to offer to accommodate the child alone in virtually all cases. Moreover, this is not just a question of stated intention. Lambeth's policy will not work unless the council thereafter adheres to its stated intentions.
54.   In considering this issue each case must always be considered on its own merits. The facts in every case differ. But without detracting from this overriding principle, a recognisable distinction is discernible here between two broad types of cases: (1) cases where a child is old enough to understand what is happening and is not likely to be significantly upset by being accommodated away from his parent, and (2) cases where this is not so. In the former type of cases the policy adopted by Lambeth council is, in principle, reasonable. The social services authority is not under a duty to accommodate the parent of a child in need although it has power to do so. In this type of case, where the only need of the child is for short term accommodation, accommodating the child alone will safeguard the child's immediate welfare. It would be preferable if accommodation were provided for the parent as well. But this would have the seriously adverse financial repercussions mentioned above. This is a factor the council may properly take into account.
55.   Matters stand differently where the child is not old enough to understand what is going on or, if he is, he would be likely to be significantly upset at being separated from his parent. Providing accommodation for the child alone in this type of case may satisfy the authority's duty under section 20 of the Children Act 1989. But in this type of case the child's immediate need is for accommodation with his parent. This is a basic need. It is difficult to see how the local authority can be said to fulfil its duty under section 17(1) of the Children Act 1989 by accommodating the child alone in such circumstances. It cannot be reasonable in this type of case to give greater weight to the wider financial repercussions than to the adverse consequences to the individual child in the particular case. Parliament cannot have intended that the latitude afforded to local authorities by section 17(1) should embrace such a highly unsatisfactory result regarding the accommodation needs of a child in need.
56.   A social services authority is of course not a housing authority. But section 213A of the Housing Act, mentioned above, goes some way towards providing an answer on this. Where necessary a social services authority should now exercise its power under section 213A to request assistance from the local housing authority. If assistance is not forthcoming the court will scrutinise the housing authority's reasons with rigour in a case where the consequence is that a homeless dependent child, not old enough to understand what is going on or likely to be significantly upset by being separated from his parent, would be accommodated separately from his parent.
57.   If this is the correct approach, as I believe it is, it must follow that in this type of case a local authority should not, expressly or tacitly, threaten a parent that the most it will do is to accommodate the child alone. The authority should not express an intention it cannot properly implement. If a local authority may not properly accommodate a child alone in this type of case where the parent and child could be accommodated together without significant additional cost, then by telling a parent that, if necessary, it will consider taking this course the authority would be putting improper pressure on the parent.
58.   For these reasons I consider Lambeth's existing general policy needs adjustment. In its present form Lambeth's policy goes outside the latitude afforded to a local authority by section 17(1) of the Children Act 1989. In so far as the London Borough of Barnet has adopted a similar policy, its policy likewise needs adjustment. So do similar policies of all other social services authorities and departments which are currently proceeding on a similar basis. But no relief is now called for in W's case or G's case. So I would dismiss these two appeals.

    A's case

59.   In A's case the problem is different. It is not a case of homelessness. As will be recalled, in A's case the two children suffering from autism are accommodated with their mother and brother. In this case the problem relates to the quality of the accommodation provided for the family. The core needs of the children are for a flat with four bedrooms away from the road and with a secure outside garden or play area. At first instance Scott Baker J rightly described this as 'a tall order for any council to meet in the light of the limited physical and financial resources and the needs of other families'. This is especially so for an inner city authority such as Lambeth.
60.   In rejecting A's claim both courts below proceeded on the basis that no enforceable duty exists under section 17. In the Court of Appeal Sir Philip Otton described this as a distressing case. He expressed the hope that the housing authority would reconsider it on its merits as soon as possible. He shared Laws LJ's surprise, even unease, at the category in which the family were placed: this 'desperate and devoted mother needs improved accommodation as well as services for her two autistic children': (2001) 4 CCLR 486, 507-508, para 47. That was in November 2001. The needs of the children and their mother have not lessened with the passage of time.
61.   The present position, therefore, is that neither court below considered whether, if section 17(1) of the Children Act 1989 gives rise to an enforceable duty of the character I have described, Lambeth council is in breach of its duty in this case. Your Lordships heard no submissions on this point. The present position may be summarised as follows. The children do not need short-term accommodation. The family need permanent re-housing, because of the special needs of the two autistic children. The social services department is subject to particular statutory obligations regarding the needs of disabled children but it does not possess a stock of housing. The housing department, on the other hand, has a stock of housing but is not subject to a like statutory obligation in respect of the needs of disabled children.
62.   Disabled children, with their special housing needs, cannot be permitted to fall between these two stools. When enacting the Children Act 1989 Parliament envisaged that a local authority might need to seek help from other authorities, such as a local housing authority, in discharging its functions under Part III of the Act. Section 27 of the Children Act 1989 provides that the requested authority must comply with the request if it is compatible with its own duties and does not 'unduly prejudice' the discharge of its own functions. The relevant authorities are obliged to cooperate with each other. So in discharging its duty under section 17(1) Lambeth council's social services department, as the local social services authority, may request help from the housing department, as the local housing authority, in re-housing A and her family. The housing department must comply with the request if it is compatible with its own duties and does not unduly prejudice the discharge of any of its functions. I emphasise the word 'unduly'. If such a request is made the housing department, much pressed as it undoubtedly is, must nonetheless take note that the department responsible for safeguarding the welfare of children has decided that these two children need better housing. The housing department will wish to consider the practicability of accelerating the provision of accommodation which at least in some respects is more suitable for the acute needs of these two disabled children.
63.   In the circumstances the appropriate course is for these judicial review proceedings to be remitted to the Administrative Court for further hearing in the light of the judgments of the House. Before the proceedings are restored for further hearing Lambeth council will no doubt reconsider its position. I would allow this appeal accordingly.

LORD STEYN

My Lords,

64.   I have had the privilege of reading the opinion of Lord Nicholls of Birkenhead. For the reasons he has given I would also make the orders which he proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

65.   The facts of these cases have been fully set out by my noble and learned friend Lord Nicholls of Birkenhead, whose speech I have had the advantage of reading in draft. I gratefully adopt his account of them, and I proceed at once to the important and difficult issues of law which they have raised.

Background

66.   The purpose of the Children Act 1989, as its long title indicates, was to reform the law relating to children. The aim was to provide a clear and consistent code for the whole area of child law. Reforms had been made hitherto in a piecemeal way, resulting in a complex series of provisions in different statutes some of which were contradictory. The framework which had been created had been shown by the DHSS Review of Child Care Law (1985) to be inadequate. Major changes to the law were recommended as a result of this review, and many of them were accepted by the Government: The Law on Child Care and Family Services (1987) (Cm 62). Among the issues that required attention were the role of local authorities in supporting families who were in difficulty and the role of parents when their children were being looked after by a local authority. The control of social work decision-taking was another area of concern, following the Report of the Inquiry into child abuse in Cleveland 1987 (Cm 412). But that is not the area of the law with which these three cases are concerned. We are concerned here with local authority support for children and their families. The reforms in this area of child law are set out in Part III of the Act.
67.   The theme to which the provisions in Part III of the Act are devoted is identified at the very outset in section 17(1). It provides that it shall be the general duty of every local authority, in addition to the other duties imposed on them by that Part of the Act:
"(a) to safeguard and promote the welfare of children within their area who are in need; and

(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs."

There then follow, in the remainder of Part III and in Schedule 2, provisions dealing with investigations and assessments of needs of children and duties to provide various particular kinds of support services.

68.   Section 17(1)(b) emphasises the importance which is to be attached to the promotion of the upbringing of children in need by their families. As Judith Masson (now Professor Masson, of Warwick University) noted in her general note on section 17 in Current Law Statutes, this subsection represented a fundamental shift in the provision of social services where children were concerned. It laid down a new statutory framework for all preventive work in child care. It recognised that, while local authority care may have a positive contribution to make in this field, family life too makes a valuable contribution to a child's welfare. John Murphy, "Children in need: the limits of local authority accountability" (2003) 23 Legal Studies 103, 104 makes the same point:
"Since Part III of the Children Act 1989 is a central plank in that legislation's endeavour to reduce state intervention in the essentially private domain in family life, the duties it contains are designed to help to keep the use of compulsory measures under subsequent Parts of the Act to a minimum by providing support services that avoid the need to have recourse to those compulsory measures."

As John Murphy observes in his paper at p 104, note 5, Part III was intended to reflect the obligation in article 18(2) of the United Nations Convention on the Rights of the Child which was adopted on 20 November 1989 and entered into force on 2 September 1990 to render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and to ensure the development of institutions, facilities and services for the care of children: see The United Kingdom's First Report to the UN Committee on the Rights of the Child (HMSO, 1994), p 2.

69.   The Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees to everyone respect for his private and family life. Article 8(2) provides:
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

The mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and the placement of children in foster homes or other accommodation which they do not share with their parents constitutes an interference with the right protected by article 8: Kutzner v Germany (2002) 35 EHRR 653, 664, paras 58-59. But the contracting states have a wide margin of appreciation to determine the necessity of any measures taken in pursuit of the legitimate aim of protecting the child's health and rights, which may vary according to the nature of the issues and interests at stake: KA v Finland, Application No 27751/95 (unreported) 14 January 2003. It has not been suggested that Part III of the 1989 Act fails, in principle, to meet the requirements of article 8(2). The general duties set out in section 17(1) would seem to be plainly in keeping with these requirements. The question whether decisions taken under Part III are compatible with the child's article 8 Convention rights must, of course, depend on the facts of each case.

70.   The range of support services that may be provided under Part III and Schedule 2 is very wide. Among these services is the provision of accommodation, and it is the refusal of the respondents to provide accommodation which has given rise to these appeals. But it must be noted, as part of the background, that the functions which a local social services authority performs under the 1989 Act are different from those performed by the local education authority and the local housing authority. All the social services functions of a local authority under the 1989 Act are vested in the social services committee established under section 2 of the Local Authority Social Services Act 1970: see Schedule 1 to that Act, as amended by paragraph 26 of Schedule 13 to the 1989 Act. Responsibility for the provision of support for children and their families was placed on county councils in those areas which are not served by metropolitan districts, the London boroughs and unitary authorities created under Part II of the Local Government Act 1992: see the definition of "local authority" in section 105(1) of the 1989 Act.
71.   Different authorities are involved in the provision of housing accommodation in the areas not served by metropolitan districts, London boroughs and the unitary authorities. Section 1 of the Housing Act 1985 provides that in these areas the district council, not the county council, is the local housing authority. Section 8(1) of the 1985 Act provides that it is the duty of every local housing authority to consider housing conditions in their district and the needs of the district with respect to the provision of further housing accommodation, and section 21 of that Act vests the general management, regulation and control of a local authority's houses in the local housing authority. Among the duties allocated to the local housing authority are the allocation of housing accommodation and duties with regard to the housing of the homeless: see Parts VI and VII of Housing Act 1996. The social services and housing functions are both vested in the metropolitan districts, London boroughs and the unitary authorities, but different officials and different committees are involved and separate accounts must be kept for each function. The statutory duties and functions of the local social services authority in the provision of child care are thus separated from those of the local housing authority which is responsible for the provision of housing accommodation in the area.

The section 17(1) issue

72.   The three cases which are before your Lordships in these appeals are all concerned with children who are in need, and they are all concerned with children who at the date of the relevant decisions were still living with their parents in the same household. The general duties which are set out in section 17(1) are therefore directly in point in each case. In A's case the family consists of three children, two of whom are in need because they are disabled children: section 17(10)(c). They are disabled because they suffer from autism. In the cases of G and W, the children were in need because the parents with whom they were living (who were their mothers only, in both cases) were homeless. Their health or development was likely to be significantly impaired without the provision of services by the local authority under Part III of the Act: section 17(10)(b). In all three cases the children were, at the relevant date, living with their mothers in the same family.
73.   There is another characteristic which these three cases shared. It was the lack of residential accommodation which was suited to the needs of the children if they were to remain within the family unit without the risk of significant impairment to their welfare. Section 17(6) provides that the services provided by a local social services authority in the exercise of functions conferred on them by that section may include giving assistance in kind or, in exceptional circumstances, in cash. Among the forms of assistance in kind that may be given under this subsection is assistance in the form of accommodation. This is now the subject of express provision, as a result of an amendment which was made to section 17(6) with effect from 7 November 2002 by section 116(1) of the Adoption and Children Act 2002. But it was already the practice for short-term residential accommodation to be provided under that subsection before it was amended.
74.   It has not been suggested in any of these cases that it would have been beyond the power of the local authorities at the date when these decisions were taken to provide assistance in the form of residential accommodation if this was needed to enable the children to live with their families. But it is not enough for it to be shown that the local authorities had power to provide the accommodation. The appellants' case is that the effect of section 17(1) is that the respondents owed a duty to each individual child in need to provide that child with residential accommodation to enable the child to live with his or her mother in the same family if an assessment of that child's needs shows that this is what is required to meet these needs. My noble and learned friend Lord Nicholls has said that the issue is whether a local authority may insist on providing accommodation for a child alone as distinct from accommodation for the child and the mother. It should be appreciated however that the alternative to providing accommodation for the child and the mother is that the child would be looked after by the local authority: see section 22(1). There are various ways in which a local authority may provide accommodation for a child whom they are looking after, none of which involve requiring the child to live alone: see section 23(2).
75.   The respondents in each of these three cases are London boroughs, so they are the local housing authority as well as the local social services authority for their areas. It is in their capacity as the local social services authority that they are charged with the responsibility of performing functions under Part III of the 1989 Act. The cost of providing accommodation for children in need under Part III must be met out of the funds which are set aside in their accounts for the provision of social services. As I have mentioned, the provision of accommodation is only one of the many services which may be provided in the performance of the general duty which is owed by the local social services authority under section 17(1). It is an inescapable fact of life that the funds and other resources available for the performance of the functions of a local social services authority are not unlimited. It is impossible therefore for the authority to fulfil every conceivable need. A judgment has to be exercised as to how needs may best be met, given the available resources. Parliament must be taken to have been aware of this fact when the legislation was enacted.
76.   That is the background to the question of law which lies at the heart of all three appeals. Does section 17(1) require a local social services authority to meet every need which has been identified by an assessment of the needs of each individual child in need within their area? For the appellants it is maintained that, once there has been an assessment of the needs of an individual child in need, there is a specific duty on the local social services authority under this subsection to provide services to meet the child's assessed needs. It follows that the child has an absolute right to the provision of residential accommodation, if this is the need which has been identified by the assessment. If this approach is right, neither the cost of providing these services nor the availability of resources can play any part in the assessment of the child's need by the local social services authority or in its decision as to whether, and if so how, it should meet that need.
77.   My noble and learned friend Lord Nicholls has said that, on the respondents' approach to the construction of section 17(1), it follows that a local authority is not under a duty to assess the needs of a child in need under section 17(1) and that this would go far to stultify the purpose of Part III of the Act. I should make it clear, before I embark on my analysis, that I am unable to agree that this conclusion follows from the respondents' argument. Section 17(2) provides that, for the purpose of facilitating the discharge of the general duty under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty of the local authority to take reasonable steps to identify the extent to which there are children in need in their area is to be found in paragraph 1 of the Schedule. That will involve assessing the needs of each child who is found to be in need in their area as paragraph 3 makes clear.

A v Lambeth: section 17(1)

78.   The situation in this case raises the question which these cases have identified under section 17(1) in its most acute form. The needs of the appellant's two disabled children were assessed by the respondent in the exercise of their functions as the local social services authority. It was found that the flat in which they were living was overcrowded and damp and that the bedroom windows and kitchen units were broken. It was also found that the flat was in a location which was very dangerous to them as it was very close to the road and one of the children had a fixation with climbing out of the window and running out of the front door. The conclusion was that the children should continue to live with the family but that the family needed to be "re-housed" to an appropriate accommodation. The appellant maintains that it is the duty of the respondent under section 17(1) of the Act as the local services authority to meet the assessed need, and she seeks an order to that effect.
79.   The duty which has been placed on the local social services authority by section 17(1) to provide a range and level of services appropriate to the children's needs is described by the subsection as a "general duty". This duty is said by the opening words of the subsection to be in addition to the other duties imposed on them by Part III of the Act. And section 17(2) provides that, for the purpose principally of facilitating the discharge of their general duties under that section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2. The duty on which the appellant seeks to rely in this case is not one of the other duties imposed on the respondents by Part III of the Act, nor is it one of the specific duties set out in Part I of Schedule 2. Her case rests therefore fairly and squarely on the propositions that the general duties described in section 17(1) are owed to each and every child in need individually, and that they are enforceable against them by or on behalf of each individual child accordingly. The contrary view is that section 17(1) is designed to set out the general principles which the local services authority must apply when providing services to children in need in their area.
80.   An examination of the range of duties mentioned elsewhere in Part III of the Act and Part I of Schedule 2 tends to support the view that section 17 (1) is concerned with general principles and is not designed to confer absolute rights on individuals. These other duties appear to have been carefully framed so as to confer a discretion on the local services authority as to how it should meet the needs of each individual child in need.
81.   Section 18(1), which imposes a duty to provide day care for pre-school children, provides that the local authority shall provide such day care "as is appropriate". Section 20(1), which imposes a duty to provide accommodation for a child for whom no person has parental responsibility, who is lost or abandoned or whose carer has been prevented from providing him with suitable accommodation or care, and section 20(3), which imposes a duty to provide accommodation for children over sixteen, leave important matters to the judgment of the local authority: "appears to them to require accommodation" in section 20(1); "whose welfare the authority consider is likely to be seriously prejudiced" in section 20(3). So too does section 22, which imposes a duty on the local authority (described in the side-note, but not in the section itself, as a "general" duty) before making a decision with respect to a child whom they are looking after to ascertain the wishes and feelings of the child and various other people "so far as is reasonably practicable" and to give "due consideration" to such wishes and feelings as they have been able to ascertain. So too does section 23, which imposes a duty on the local authority to provide accommodation for children whom they are looking after, as section 23(2) sets out a range of options which includes in subsection 2(f)(i) such other arrangements as "seems appropriate to them". The duties in Schedule 2 follow the same pattern. The duties in paragraphs 6 and 7 also leave important matters to the judgment of the local authority: "designed" to "minimise" the effect in paragraph 6; "designed" to "reduce", to "encourage" and to "avoid" in paragraph 7. Those in paragraphs 8 and 9(1) are qualified by the expression "as they consider appropriate", and the duty in paragraph 10 is qualified by the words "take such steps as are reasonably practicable".
82.   The discretion which is given by these provisions to the local authority is framed in various ways, but the result is the same in each case. Where a discretion is given, the child in need does not have an absolute right to the provision of any of these services.
83.   The use of the expression "general duty" in section 17(1), too, suggests that the purpose of the subsection was to set out duties of a general nature only and that they were not intended to be enforceable as such by individuals. The DHHS Review of Child Care Law contained the following recommendations:
"5.7 Local authority powers and duties regarding children living with their families could be regarded as having two main aims: to provide 'family support' to help parents bring up their children; and to seek to prevent admission to care or court proceedings except where this is in the best interests of the child .…

5.8 We believe the provisions should be stated clearly in general terms of making services available at an appropriate level to the needs of the area rather than in terms of duties owed to individual children or families, in order to leave local authorities a wide flexibility to decide what is appropriate in particular cases while providing for a reasonable overall level of provision. It is for local authorities to decide on their priorities within the resources available to them."

84.   The recommendations of the DHHS Working Party on Child Care Law were taken into account in the White Paper, The Law on Child Care and Family Services, which preceded the introduction of the Bill which became the 1989 Act. Chapter Two of the White Paper deals with services to families with children. In paragraph 14 it was explained that the powers and duties of local authorities to provide services to promote the care and upbringing of children and to diminish the need to take them compulsorily into local authority care were to be revised, and that there was to be a new focus on the provision of services in voluntary partnership with parents. In paragraph 18 the proposals for promoting the care and upbringing of children in their families were introduced in this way [emphasis as printed in the White Paper]:
"It is proposed to give local authorities a broad 'umbrella' power to provide services to promote the care and upbringing of children, and to help prevent the breakdown of family relationships which might eventually lead to a court order committing the child to the local authority's care. Within this power the local authority will be able to provide services to a child at home, for example a family aide to assist within the home; at a day centre, for example a day nursery for pre-school children, an after school scheme for school age children or placement with a childminder; or residential facilities allowing a child to stay for short or long periods away from home, say with a foster family or in a children's home. The local authority will also be able to offer financial assistance in exceptional circumstances. This is not an exclusive list …."

85.   This legislative background serves to reinforce the impression which the structure and language of the legislation itself gives, that the so-called "general duty" in section 17(1) is owed to all the children who are in need within their area and not to each child in need individually. It is an overriding duty, a statement of general principle. It provides the broad aims which the local authority is to bear in mind when it is performing the "other duties" set out in Part III (see the words in parenthesis in section 17(1)) and the "specific duties" for facilitating the discharge of those general duties which are set out in Part I of Schedule 2 (see section 17(2)). A child in need within the meaning of section 17(10) is eligible for the provision of those services, but he has no absolute right to them.
86.   The appellants submit that the correct analysis of section 17(1) is that the general duty which it sets out is made "concrete and real" for a specific person when that person is assessed as being in need of the services which are available by way of the general duty. In other words, the process of assessment "crystallises" the general duty so that it becomes a specific duty which the local social services authority now owes to the individual whose needs have been assessed.
87.   This argument is based on the approach which was taken by the Court of Appeal in R v Kensington and Chelsea Royal London Borough Council, Ex p Kujtim [1999] 4 All ER 161 to the case of a person who had been assessed by the local authority under section 47 of the National Health Service and Community Care Act 1990 as being a person in urgent need of care and attention which was not otherwise available to him, so that he satisfied the criteria laid down in section 21(1)(a) of the National Assistance Act 1948. It was submitted in that case that, in consequence of that assessment, the local authority were under a continuing duty to meet these needs by providing him with residential accommodation until, upon a reassessment, it was decided that his needs had changed. That argument was accepted by the Court of Appeal. The contrary argument, that this was no more than a "target" duty in the sense of the label used by Woolf LJ in R v Inner London Education Authority, Ex p Ali (1990) 2 Admin L R 822, 828 in relation to section 8 of the Education Act 1944, was rejected. Potter LJ said in Ex p Kujtim, at p 175c-d, para 30, that the position was as follows:
"Once a local authority has assessed an applicant's needs as satisfying the criteria laid down in section 21(1)(a), the local authority is under a duty to provide accommodation on a continuing basis so long as the need of the applicant remains as originally assessed, and if, for whatever reason, the accommodation, once provided, is withdrawn or otherwise becomes unavailable to the applicant, then (subject to any negative assessment of the applicant's needs) the local authority has a continuing duty to provide further accommodation."

88.   In the Court of Appeal in the A case [2001] EWCA Civ 1624, (2001) 4 CCLR 486, 501, para 26 Laws LJ, with whose opinion on this point Chadwick LJ and Sir Phillip Otton agreed, said that he was willing to accept that the approach taken by Potter LJ in Ex p Kujtim might be characterised or described as demonstrating that the operation in practice of section 21 of the National Assistance Act 1948 involves the notion of a "target" duty which becomes "crystallised" and thus enforceable upon the happening of an event, namely a needs assessment. But he went on to say that this analysis of section 21 of the 1948 Act could not conclude the question whether a like result could be got out of section 17 of the 1989 Act. Having examined the differences of language between these two provisions, he concluded, at p 502, para 29, that neither the terms of section 21 of the 1948 Act nor the reasoning of the Court in Kujtim could support a construction of section 17 of the 1989 Act which would in practice produce an analogous result.
89.   It is necessary to pay close attention to the differences between the wording and structure of these two provisions and the context in which they are placed by the respective statutes. Section 21 of the 1948 Act (as amended by section 195 of and Schedule 23 to the Local Government Act 1972, section 108(5) of and Schedule 13 to the Children Act 1989 and section 42 of the National Health Service and Community Care Act 1990) provides:
"Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -

(a)  residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them."

90.   I respectfully agree with Laws LJ's comment, at p 501, para 27, that, where (as in Ex p Kujtim) the Secretary of State has given mandatory directions under section 21(1), it is difficult to see how this provision can be read otherwise than as imposing a concrete duty on the authority to see to it that accommodation is provided for persons assessed as falling within one or other of the classes specified. But the contrast between the wide and general language of section 17(1) of the 1989 Act and the way in which the various other duties in Part III and the specific duties set out in Part I of Schedule 2 which I have discussed above are qualified so as to leave matters to the discretion of the local authority is very marked.
91.   I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority's area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which section 17(1) sets out. What the subsection does is to set out the duties owed to a section of the public in general by which the authority must be guided in the performance of those other duties: see R v London Borough of Barnet, Ex p B [1994] ELR 357. In that case Auld J considered the guidance issued under section 7 of the Local Authority Services Act 1970 entitled The Children Act 1989 Guidance and Regulations, vol 2: Family Support, Day Care and Educational Provision for Young Children. He observed, at pp 360-361, that the duties under Part III of the 1989 Act fell into two groups, those which are general and those which are particular, and that the general duties are concerned with the provision of services overall and not to be governed by individual circumstances. He referred to the way this point is made in para 2.11 of the Guidance in relation to the duties set out in sections 17 and 18:
"Local authorities are not expected to meet every individual need, but they are asked to identify the extent of need and then make decisions on the priorities for service provision in their area in the context of that information and their statutory duties."

    As Mr Goudie QC for the respondents accepted, members of that section of the public have a sufficient interest to enforce those general duties by judicial review. But they are not particular duties owed to each member of that section of the public of the kind described by Lord Clyde in R v Gloucestershire County Council, Ex p Barry [1997] AC 584, 610A which give a correlative right to the individual which he can enforce in the event of a failure in its performance.

92.   A further point is particularly relevant to this case, as the service which is sought is the provision of residential accommodation. The need which the assessment has identified is not for the provision of temporary accommodation only. As the recommendation at the end of the assessment puts it, what this family needs is to be "re-housed". Section 17 refers to a range and level of services appropriate to the children's needs. It is broadly expressed, with a view to giving the greatest possible scope to the local social services authority as to what it chooses to do in the provision of these services. Although the services which the authority provides may "include" the provision of accommodation (see section 17(6)), the provision of residential accommodation to re-house a child in need so that he can live with his family is not the principal or primary purpose of this legislation. Housing is the function of the local housing authority, for the acquisition and management of whose housing stock detailed provisions are contained in the Housing Acts. Provisions of that kind are entirely absent from this legislation.
93.   We were informed that this is far from being an isolated case of its kind, as about 200 such cases involving children in need had been identified by the respondents in their area in the past 5 months. The expenditure of limited resources on the provision of residential accommodation for housing these children with their families would be bound to mean that there was less available for expenditure on other services designed for the performance of the general duty which section 17(1) has identified. A reading of that subsection as imposing a specific duty on the local social services authority to provide residential accommodation to individual children in need who have been assessed to be in need of such accommodation would sit uneasily with the legislation in the Housing Acts. As Mr Goudie pointed out, it could have the effect of turning the social services department of the local authority into another kind of housing department, with a different set of priorities for the provision of housing for the homeless than those which section 59 of the Housing Act 1985 lays down for the local housing authority.
94.   There was no failure in this case to assess the needs of the appellant's children: contrast R (on the application of AB and SB) v Nottinghamshire County Council [2001] EWHC Admin 235; (2001) 4 CCLR 295. The failure which is alleged is a failure to purchase residential accommodation which is suitable for the children's needs. The order which the appellant seeks is an order that the respondent must provide services pursuant to section 17 to meet their assessed needs and a declaration that the respondent has acted in breach of its statutory duties. Her argument is entirely dependent upon the proposition that the effect of that assessment has been to crystallise the general duty under section 17(1) so that it has become a specific duty owed to A's children as individuals. Troublesome though A's case is in view of the difficulties which the assessment has so carefully identified, I am unable to accept that this approach is consistent with the language of the statute. I would therefore reject the argument which has been advanced under section 17(1), in all three cases.

G v Barnet; W v Lambeth: section 23(6)

95.   These cases concern children whose mothers were unable to provide them with accommodation unless assisted to do so by the respondents in their capacity as their local social services authority. This is because the local housing authority were under no duty to assist the mothers under the homelessness legislation. The respondents offered to meet the needs of G's child by offering to provide financial assistance to G so that they could return to Holland, but G would not accept this. As a result of interim orders made in these proceedings, the respondents arranged for the family to be provided with bed and breakfast accommodation when it became clear that W and her two children could no longer live in her niece's flat. No formal assessment establishing the needs of the children was made in W's case, but in G's case a child in need assessment form was completed. The appellants' contention is that the respondents were under a duty to meet the children's needs under section 17(1) by enabling them to be brought up by their parents in the same family. They also contend that the respondents were under a duty under section 20(1) to provide accommodation for their children, and that in fulfilment of this duty they were required by section 23(6) to provide the mothers with accommodation so that their children could live with them.
96.   Section 23(6) provides:
"Subject to any regulations made by the Secretary of State for the purposes of this subsection, any local authority looking after a child shall make arrangements to enable him to live with -

(a)  a person falling within subsection (4); or

(b)  a relative, friend or other person connected with him,

unless that would not be reasonably practicable or consistent with his welfare."

97.   The expression "any local authority looking after a child" in section 23(6) has to be read together with section 22(1), which (as amended by section 107 of and Schedule 5 to the Local Government Act 2000) provides:
"In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is -

(a)  in their care; or

(b)  provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970."

98.   The reference in section 22(1)(b) to children provided with accommodation by the local authority has to be read together with section 20(1), which provides:
"Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of -

(a)  there being no person who has parental responsibility for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care."

99.   There are, then, four hurdles that the appellants must cross if they are to succeed in their argument. First, they must show that their children are children in need within the meaning of section 17(10). It was not suggested that there would have been any serious room for doubt on this point. Their mothers were unable to provide them with accommodation, and in both cases the children were at serious risk of having no roof over their heads at all. Leaving them to sleep in doorways was not an option in their case. Children who are reduced to this level of destitution are plainly children in need. Their health or development is likely to be significantly impaired if they are not provided with services by the local social services authority: section 17(10)(b).
100.   The appellants must show, in the second place, that the respondents were under a duty to provide their children with accommodation. Local social services authorities are under a duty to provide accommodation for a child in need within their area who appears to them to require accommodation as a result, among other things, of the person who has been caring from him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care: section 20(1)(c). This provision must be read in the light of the general duties set out in section 17(1). Among these duties there is the duty to safeguard and promote the welfare of the child. At first sight the concept of the carer being prevented from providing the child with suitable accommodation or care does not sit easily with the situation where the carer has chosen to refuse offers of accommodation or other forms of assistance by the relevant local authority. But the words "for whatever reason" indicate that the widest possible scope must be given to this provision. The guiding principle is the need to safeguard and promote the child's welfare. So it makes no difference whether the reason is one which the carer has brought about by her own act or is one which she was resisting to the best of her ability. On the facts, it is plain that the respondents were under a duty to provide accommodation for the appellants' children under section 20(1).
101.   The appellants must then show, in the third place, that section 23(6) applies to their case. That subsection applies where a local social services authority "are looking after a child." This expression is defined in section 22(1), which provides that any reference in the Act to a child "who is looked after by a local authority" is a reference to a child who is either in their care or is provided with accommodation by the authority in the exercise of any functions referred to the social services committee, including the functions under the Act. As it happens, the situation described in this subsection had not yet been reached in either of these two cases. W had been provided with bed and breakfast accommodation for herself and her children, but this was not accommodation provided to the children themselves within the meaning of this provision. The reference in section 22(1) to the provision of accommodation is a reference to the provision of accommodation for children themselves under either section 20(1) or section 22(1). Nevertheless it is clear that if the stage had been reached where the respondents were fulfilling their duty to provide accommodation for them under section 20(1)(c), the children would have been children who were being looked after the local authority within the meaning of section 22(1).
102.   This brings me to the crucial point in this part of the case, which is whether a local authority looking after a child is under a duty to provide accommodation to any of the persons mentioned in section 23(6)(a) and (b), who include the child's parent, to enable the child to live with that person. The duty, as expressed in the subsection, is to "make arrangements to enable" the child to live with any one of the person mentioned. It is qualified by the words "unless that would not be reasonably practicable and consistent with his welfare". The appellants' argument is that among the arrangements that may be made in the performance of this duty is the provision of accommodation to the person mentioned so that the child will be able to live with that person. They also submit, relying on Lord Browne-Wilkinson's observation in R v East Sussex County Council, Ex p Tandy [1998] AC 714, 749C, that neither the cost of doing this nor the availability of resources have any bearing on what is or is not reasonably practicable as to permit this would downgrade the duty into a discretionary power.
103.   Section 23 deals with children who are being looked after by a local social services authority either because they in the care of the authority (that is to say, by virtue of a care order under section 31(1) or are being provided with accommodation by it. Detailed provisions are made in section 23(2) as to the various ways in which accommodation may be provided for the child, which include placing the child with a family, a relative or any other suitable person. Section 23(5) provides that, where a child is in the care of a local authority, the authority may only allow the child to live with a parent, a person who has parental responsibility for him or a person in whose favour a residence order was in force before the care order was made in accordance with regulations made by the Secretary of State. These provisions all assume that the person with whom the child is to be placed or the person with whom the child may be allowed to live under section 23(5) already has accommodation which will enable the child to live with that person.
104.   Section 23(6) appears to have been framed on the same assumption. The context in which it appears suggests that this is so. But the wording of the subsection, and its content, reinforce the argument. The arrangements to which it refers are arrangements enabling the child to live with that person. Nothing is said about providing that person with accommodation. Moreover the duty to make the arrangements to which it refers is not restricted to enabling the child to live with his family. If it had been so restricted there might have been some force in the argument that the duty in this subsection was to be read together with the general duty in section 17(1) to promote the upbringing of the child by his family. But the person with whom the child may be enabled to live under this subsection include relatives other than his parents, friends and other person connected with him: section 23(6)(b). The width of this class of persons indicates that what Parliament had in mind when it was enacting this provision was that these were persons who already had accommodation of their own. The fact that the duty is qualified by reference to what is reasonably practicable and consistent with the child's welfare is entirely consistent with this approach. It permits the local authority to have regard to the nature of the accommodation which that person is able to provide before it takes its decision as to whether, and if so with whom, the child is to be accommodated under this subsection. It is not concerned with the resources of the local authority, because the duty does not extend to the provision of accommodation for that person at its own cost or from its own resources.

Conclusion

105.   I would dismiss these appeals.

LORD MILLETT

My Lords,

106.   I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead, with which I am in full agreement. I add a few words of my own in order to explain why I am unable to accept the conclusion of my noble and learned friend Lord Nicholls of Birkenhead that section 17(1) of the Children Act 1989 imposes a duty on the social services authority in respect of the needs of a particular child. In my opinion it imposes a general and overriding duty to maintain a level and range of services sufficient to enable the authority to discharge its functions under Part III of the Act.
107.   Section 17(1) contains three indications of the nature of the duty which it imposes. The first is that it is described as a general duty. I agree that this is not decisive by itself. It may be contrasted with the specific duties and powers mentioned in Section 17(2). But it does suggest that what is to follow is a general and comprehensive duty owed to all persons within the authority's area rather than a duty which is owed to particular individuals.
108.   The second indication is that it is a duty to safeguard and promote the welfare of "children within their area who are in need" and to promote the upbringing of such children by their families. This is couched in terms which suggest that it is a broad and general duty to cater for the needs of all the children concerned, rather than a duty to meet the needs of any particular child. This feature, too, cannot be decisive, for the words can be read as involving a duty in respect of the welfare and upbringing of each child. But it cannot be assumed that they do involve such a duty, for this is the very question to be decided.
109.   In my opinion, however, the third indication is decisive. The duty is not a duty to safeguard and promote the welfare of the children concerned simpliciter, but to do so "by providing a range and level of services appropriate to those children's needs." A social services authority which provides a range and level of services appropriate to meet the various needs of children in its area has discharged its duty under section 17(1). This cannot be read as a duty to meet the needs of any particular child. It is sufficient that the authority maintains services for which his particular needs make him eligible.
110.   It does not follow that the social services authority is not obliged to assess the needs of the individual child. The existence of a power to provide assistance to a class involves a duty to consider whether a particular individual is eligible for such assistance; and in the present context that involves assessing the needs of the child in order to decide whether and the extent to which the authority will meet his needs. But there is no need to invoke this implied duty; as my noble and learned friend Lord Hope has explained, the relevant duty is expressly provided by paragraphs 1 and 3 of Schedule 2.
111.   I would dismiss the appeals.

    LORD SCOTT OF FOSCOTE

My Lords,

112.   The three appeals before the House require a view to be taken as to the intended function and effect of section 17(1) of the Children Act 1989. The issue, expressed in general terms, is whether the "general duty" imposed by the sub-section on local authorities can, in appropriate circumstances, be treated as a targeted and specific duty owed by the local authority to an individual child. It may well be that the issue thus expressed will not lead to any useful answer. An answer such as "sometimes" or "it depends" would neither resolve the three appeals nor provide any guidance to those involved in other cases which throw up the same issue. Nonetheless I think it is necessary to start by briefly considering the issue in general terms before considering it in the context of the facts of the three particular cases.
113.   Section 17(1) says 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; and

(b)  so far as it consistent with that duty, to promote the upbringing of such children by their families,

by providing a range and level of services appropriate to those children's needs."

The language of this provision seems to me to provide very infertile soil for the extraction of a targeted, specific duty owed to an individual child.

114.   First, the adjective "general", qualifying the "duty", is indicative of an overarching duty applying to a class rather than to individuals and of a 'framework' duty under the umbrella of which specific duties imposed by other statutory provisions may from time to time come into existence in relation to specific children. The point is underlined by sub-section (2) which says that:
"For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part 1 of Schedule 2."

The contrast in sub-section (2) between the "general duty" imposed by sub-section (1) and the "specific duties" to be found elsewhere is explicit.

115.   Second, the context of the sub-section (1) "general duty" is expressed in broad aspirational terms that would not easily lend themselves to mandatory enforcement. The local authority must "safeguard and promote the welfare" of the children. It must "promote the upbringing of such children by their families". Nothing could be less specific.
116.   Third, sub-section (1) specifies, again in very broad terms, the manner in which the "general duty" is to be discharged, namely, "by providing a range and level of services appropriate to those children's needs". This language is contemplating the children, the objects of the general duty, as a class.
117.   Part I of Schedule 2 to the Act, as section 17(2) has led one to expect, imposes specific duties and confers specific powers on local authorities. Paragraph 1(1) says that:
"Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area."

This obligation is not expressed in absolute terms. The local authority will have discharged its mandatory duty if it has taken "reasonable steps". Having identified a child "in need" it will often be necessary for the local authority to assess the actual needs of the child. Somewhat surprisingly the requirement for the local authority to do so is nowhere expressly spelt out. Paragraph 3 of the schedule says that:

"Where it appears to a local authority that a child within their area is in need, the authority may assess his needs for the purposes of this Act at the same time as any assessment of his needs is made under -

(a)  the Chronically Sick and Disabled Persons Act 1970;

(b)  Part IV of the Education Act 1996;

(c)  the Disabled Persons (Services, Consultation and Representation) Act 1986; or

(d)  any other enactment."

It is, I think, implicit in this provision that the local authority will assess the actual needs of a child in need whenever it appears necessary to do so.

118.   Most of the specific duties imposed on local authorities under Part 1 of Schedule 2 are expressed in proportionate rather than absolute terms. Thus, paragraph 4(1) requires every local authority to "take reasonable steps … to prevent children within their area suffering ill-treatment or neglect". Paragraph 7 requires every local authority to "take reasonable steps designed …" to benefit the children in various specified ways (emphasis in each case added). Paragraph 8 requires every local authority to "make such provision as they consider appropriate …" for specified types of services to be made available to children in need who are living with their families. Paragraph 10 requires every local authority to "take such steps as are reasonably practicable …" to enable a child in need living apart from his family to live with his family (emphasis again added). It is plain, in my opinion, that in relation to each of these specific duties the local authority can take into account among other things, its overall financial resources and, in particular, the cost of taking a specific step that, if taken, would benefit the child and meet some need. Whether the taking of a particular step is "reasonable" or "reasonably practicable" cannot be divorced from the financial implications of taking the step.
119.   Viewed in the context of these specific duties imposed on local authorities under Part 1 of Schedule 2 to the Act it would be odd to find that the section 17(1) general duty had imposed on a local authority a mandatory obligation to take some specific step in relation to the child irrespective of the local authority's financial resources and of the cost of the step in question. But that is the result for which counsel for the appellants in these three appeals contend.
120.   It is time, I think, to consider the point in the context of the particular facts of the three cases. Let me start with the case of A. She is the mother of three children, two of whom suffer from autism. They are unquestionably children "in need". They live in a two-bedroom ground floor local authority flat with no outside play area. The two autistic children, both boys, are now aged 9 and 7. In May 2000 assessments of the two children for the purposes of the 1989 Act took place. There was particular emphasis on their housing needs. The assessments were, among other things, that the family's existing accommodation had a number of unacceptable risk factors so far as the two boys were concerned and that the family needed to be re-housed in a four bedroom flat with access to a garden.
121.   In September 1998 the council had given the family an overriding priority for re-housing but nothing suitable had been offered. Following the May 2000 assessments the council were still unable to give a date by which suitable accommodation meeting the standards required by the assessment might be available. A shortage of suitable houses or flats in the council's housing stock and limited financial resources were the problem. So proceedings were started. The appellant sought a mandatory order requiring the council to "identify a suitable property and provide appropriate support in line with assessed needs".
122.   Mr Gordon QC's core contention on behalf of A is short and simple. He accepts that section 17(1) starts by imposing a general duty. But, he says, once the actual needs of a child in need have been identified by a needs assessment, the council comes under a targeted, specific duty to meet the assessed needs. Lack of resources, or perhaps, putting the point more accurately, competition for limited resources, is irrelevant. The council's section 17(1) duty has become a mandatory and absolute duty to provide the specific services to A and her children identified by the needs assessment.
123.   The issue in both the G case and the W case is whether section 17(1) imposes a mandatory duty on a local authority to provide housing to the parent of a child in need so as to enable the child to live with his or her parent.
124.   W lives with her two children. She lost her accommodation in March 2000 in circumstances that led the council to conclude that she had become intentionally homeless and was not entitled under the homeless persons legislation (Part VII of the Housing Act 1996) to council housing. She appealed against the council's decision but the Court of Appeal dismissed her appeal. The needs of her two children were assessed in April 2002. The assessment identified a need for accommodation as their only need.
125.   G comes from Holland. She has a son who was born in May 1999. In June 2000 G and her son came to England and applied to the council for assistance with housing. Her application was initially refused on the ground that she was not "habitually resident" in this country. After subsequent interviews with council officials the council offered to pay the cost of G's return to Holland with her son and to provide temporary accommodation and financial assistance in the meantime. But G refused to return to Holland and insisted that the council's duty to her son, a "child in need", obliged the council to provide her with permanent housing accommodation where she and her son could live together. Whether or not there has been a formal assessment of the needs of G's child, it is obvious that the child's needs include the need to live with his mother and the need to have accommodation appropriate to his tender age.
126.   Both G's case and W's case have, therefore, the common feature that the children's need for suitable housing and their need to live with their mothers, needs that the council is said to be under a mandatory, statutory obligation to meet, are being used by the mothers as a stepping stone by means of which the mothers can obtain housing to which they would not otherwise be entitled.
127.   Mr Howell QC, who appeared both for G and W, based his case not only on section 17(1) of the 1989 Act but also, and I think mainly, on section 23(6) of the Act. Section 23 specifies a number of specific duties resting on a local authority in relation to any child "whom they are looking after". Section 22(1) (as amended) says that references to a child whom a local authority is looking after are references either to a child in the local authority's care (paragraph (a)) or to a child who is "provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970" (paragraph (b)). Section 23(6) says that "any local authority looking after a child shall make arrangements to enable him to live with - (a) [the parent of that child] unless that would not be reasonably practicable or consistent with his welfare".
128.   A short answer to Mr Howell's section 23(6) case is, in my opinion, that none of the G or W children was a child whom the council was "looking after" within the meaning ascribed to that expression by section 22(1). None was a child in the local authority's care. And although each, with his mother, was in temporary accommodation provided by the council, the temporary provision of accommodation while a local authority is considering a housing or support application made by the parent who is looking after the child does not, in my opinion, constitute the "provision of accommodation" referred to in section 22(1)(b). A contrary conclusion would, in my view, be inconsistent with the content of sub-sections (1) and (2) of section 23.
129.   But, in any event, section 23(6) does not oblige a local authority to provide housing to the person with whom the child being looked after by the local authority is to live. As it was put by my noble and learned friend Lord Nicholls of Birkenhead, section 23(6) is concerned with placement of the child, not with housing (see paragraph 38).
130.   Accordingly, Mr Howell's case for G and W comes to depend on the same point as Mr Gordon's case for A. Does section 17(1) impose a mandatory duty on a local authority to take specific steps that the assessed, or obvious, needs of a child in need require to be taken regardless of the financial resources of the council or the cost of those steps? It is accepted that nowhere in the 1989 Act is it expressly stated that if a child's assessed needs include the provision of proper accommodation, and that he or she continue living with his parent (or parents), the local authority must, regardless of cost, provide the parent (or parents) with the requisite accommodation. Is that obligation to be implied?
131.   Somewhat similar questions have arisen in other contexts. The decision of this House in R v East Sussex County Council, Ex p Tandy [1998] AC 714 was relied on by the appellants. The case concerned educational needs. Some children have special educational needs. A statement of the special educational needs of the Ex p Tandy child said that she needed five hours of home tuition per week. The local authority decided, for cogent financial reasons, to reduce the home tuition to three hours per week. The issue was whether that decision was lawful. Section 298(1) of the Education Act 1993 said that each local education authority:
"shall make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."

And sub-section (7) said that "suitable education" meant education "suitable to [the child's] age, ability and aptitude and to any special educational needs he may have".

132.   It was accepted before the House that section 298(1) imposed a duty on the council owed to each individual child in its area to provide that child with "suitable education". "Suitable education" was defined by reference to wholly objective educational criteria that did not include the cost of the provision of the education. Lord Browne-Wilkinson, with whose opinion each of the other members of the Appellate Committee agreed, said this, at p 749:
"the county council has as a matter of strict legality the resources necessary to perform its statutory duty under section 298. Very understandably it does not wish to bleed its other functions of resources so as to enable it to perform the statutory duty under section 298 .… The argument is not one of insufficient resources to discharge the duty but of a preference for using the money for other purposes. To permit a local authority to avoid performing a statutory duty on the grounds that it prefers to spend the money in other ways is to downgrade a statutory duty to a discretionary power …. Parliament has chosen to impose a statutory duty, as opposed to a power, requiring the local authority to do certain things. In my judgment the courts should be slow to downgrade such duties into what are, in effect, mere discretions over which the court would have very little real control."

133.   This approach was urged strongly on your Lordships by counsel for the appellants. In my opinion, however, there is a key difference between section 298(1) of the Education Act 1993 and section 17(1) of the 1989 Act. Section 298 did impose a specific duty owed to each individual child. The duty to each child was to make arrangements for the provision of "suitable education", as defined, to that child. Arrangements for the provision of something less was not a discharge of the statutory duty. In the present case, by contrast, the fundamental issue is whether section 17(1) imposes on a local authority a specific duty to an individual child in need to meet every assessed, or obvious, need of that child. Reliance on Lord Browne-Wilkinson's remarks in Ex p Tandy begs that question. No doubt it is right that a statutory duty must not be downgraded to a mere discretionary power. But before complaints can be made that that is what the councils are contending for in the present cases, it is necessary to identify the statutory duty. If the appellants are correct that the councils owed them a statutory duty under section 17(1) to provide them and their children with the requisite housing, there is an end of the respondent councils' cases. No question of downgrading the duty would arise.
134.   R v Kensington and Chelsea Royal London Borough Council, Ex p Kujtim [1999] 4 AER 161 was a decision of the Court of Appeal concerning the effect of section 21(1) of the National Assistance Act 1948, as amended. The court concluded that section 21(1)(a) of the 1948 Act, coupled with paragraph 2 of the Secretary of State's Approvals and Directions made under section 21(1), imposed a continuing duty on the respondent council to meet the appellant's assessed need for accommodation but that, in the circumstances, the council had discharged its duty. I do not think this case is of assistance to the present appellants. Section 21(1), as amended, said that -
"a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing -

(a)  residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them …"

and under paragraph 2(2) of the Approvals and Directions the Secretary of State directed local authorities to make arrangements to provide residential accommodation to certain persons in certain circumstances. A person able to bring himself within the specified category was plainly, in my opinion, owed a statutory duty. There is no equivalent in the present case to the statutory direction given by the Secretary of State under which the specific duty owed to Mr Kujtim arose.

135.    In my opinion, in agreement with my noble and learned friend Lord Hope of Craighead, section 17(1) does not impose a mandatory duty on a local authority to take specific steps to satisfy the assessed needs of a child in need. If a mandatory order against a local authority to take some specific step is sought the applicant must either point to a specific duty to take the step imposed elsewhere in the Act (or in other legislation) or must invalidate the local authority's decision to decline to take the step on the usual reasonableness and proportionality grounds available in judicial review challenges. In my opinion, the appellants' appeals, in so far as they are based on a mandatory duty arising under section 17(1), should be dismissed. I am in full and respectful agreement with the reasons given by my noble and learned friend Lord Hope of Craighead on this issue.
136.   It is accepted by the respondent councils that they have the requisite power to provide housing to the appellants in order to meet the needs of their respective children. The question, therefore, arises whether the councils' decisions not to exercise this power in the manner requested by A, G and W can be impugned. Different considerations apply to the cases of G and W on the one hand and of A on the other hand.
137.   My noble and learned friend Lord Nicholls of Birkenhead has carefully and lucidly analysed the general policy adopted by Lambeth Borough Council, and no doubt of other councils, of dealing with the accommodation needs of homeless children by making accommodation available for the children but not for their parents as well (see paragraph 48 of his opinion). There is an undoubted duty, imposed by section 20 of the 1989 Act on local authorities, to provide accommodation for homeless children. A situation in which children may be sleeping rough in the streets or in cars or in garden sheds cannot be tolerated. Local authorities accept that this is so and, where necessary, accept the obligation to provide accommodation for any such children. But, so many councils believe, the provision of housing accommodation to the families of children in order to prevent the children from becoming homeless, would place an unacceptable financial burden on council resources. It is pointed out, in answer, that the cost of providing family accommodation to a child and his or her family may often be less, or at least not significantly more, than the cost of accommodating the child in a council home or with foster parents. So, given the child's need to go on living with his or her family and in particular with his or her parents if at all possible, the general policy of offering accommodation to the child alone is, it is argued, an unreasonable one that it is not lawful for a council to adopt.
138.   The councils' response to this argument, based as it is on the comparative cost of accommodating only the children of the family as against the cost of providing accommodation for the children with their family, is that in most cases an indication given by the council that the children will be removed from their family and accommodated separately leads to the parents managing to find family accommodation for themselves and their children. If intentionally homeless parents, or other parents with no right to council housing, knew that, if they did nothing, the council would find itself obliged to provide them and their family with accommodation in order to discharge its obligation to safeguard the children of the family from homelessness, a large number of these parents would do nothing. A coach and horses would be driven through the housing legislation under which those who have become intentionally homeless cannot call upon the council to re-house them.
139.   It is, of course, correct that each case must be considered on its merits but, in general, the council's response is, in my opinion, a reasonable one. It is suggested that a distinction might be drawn between cases where the child is old enough not to be significantly upset at being separated from his or her parents and cases where the child would be significantly upset by the separation. The general policy referred to could be endorsed for the former class but not, it is suggested, for the latter class. I do not believe that the suggested distinction is either a practicable or a reasonable one. Your Lordships have not been referred to any expert evidence identifying the criteria which would be applied in order to decide into which class a particular child fell and, in its absence, I regard it as legitimate to draw upon my own experience of children. That experience leads me to believe that the class intended to contain children old enough not to be significantly upset at being separated from their parents against their and their parents' wishes would be a class with very few members.
140.   Moreover, on what sort of evidence would a local authority, or a judge, be expected to decide whether or not a child would be significantly upset at being separated from its parents? The parents would be bound to say that the child would be very significantly upset. So would the child, if it was of an age to be asked. And what child expert or other witness would contradict them? On what basis could a local authority or judge decide that the parents' evidence to that effect should not be accepted?
141.   The distinction that it is suggested should be drawn is, in my opinion, simply a concealed means of outlawing the general policy adopted by Lambeth and other councils. For my part I can see nothing the matter with that general policy. If a parent or parents have become intentionally homeless or for any other reason are not entitled to look to the local authority for housing accommodation, the local authority is entitled, in my opinion, to adopt a general policy under which it is made clear that it will make accommodation available to the children of the family in order to prevent the children becoming homeless, but will not permit the parents to use the children as stepping stones by means of which to obtain a greater priority to be re-housed than that to which they would otherwise be entitled.
142.   There is general agreement among your Lordships that the appeals of G and W should be dismissed. But, for my part, I do not consider that the general policy referred to above needs adjustment.

     143.  As to A, the local authority has, some time ago, accepted her priority need for rehousing. But suitable accommodation has not yet been found. No case has been presented to the courts below or to your Lordships to justify the conclusion that either the social services department or the housing department of the local authority has unreasonably failed to exercise any of the relevant powers available to them. The case presented was that the council was under a mandatory duty under section 17(1) to provide accommodation to the family in accordance with the assessed needs of the autistic children. That case, in my opinion, fails and there is no other case that has been presented. I would dismiss the appeal in A's case for the reasons given by my noble and learned friend, Lord Hope of Craighead with which I am in complete and respectful agreement.