The Argentinian author Borges once observed that there is not a single mention of a camel in the Koran – they were simply so common-place and unremarkable in the time and place that the Koran had been written and later circulated that there was no need to actually ever mention them.
A long while ago, I became curious about just how often the word “co-operation” came up in child protection law – “The mother is co-operating, so there’s no need to make an interim order, stick with an agreement”, “The father didn’t co-operate with the assessment”, “I don’t feel that the parents can co-operate with professionals” and so I undertook an exercise. I went through the entire Children Act 1989 looking for the word “co-operation”
It appears just the once. And it isn’t about parents co-operating with professionals at all – it is about professional agencies co-operating with one another.
Section 27 Co-operation between authorities
“(1) Where it appears to a local authority that any authority mentioned in subsection (3) could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of that other authority specifying the action in question.
(2) An authority whose help is so requested shall comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions.
(3) The authorities are—
(a) any local authority;
(c) any local housing authority;…
Section 27 doesn’t get out much. It has all sorts of potential, but it is a wallflower compared to the gregarious and vivacious section 31, 20 and even 17, which find themselves before the bright lights in London all the time, being pored over and scrutinised and having reams of purple prose written in their honour.
So it pleased me to see a case where section 27 was the mainspring of the argument. It relates to a case where housing would not house a family in a ground floor property and where social workers had observed that the children were drawn to windows and balconies and would try to jump out. The last case with those features did not end at all well – in fact it was deeply tragic :-
The mother attempted to judicially review the Local Authority social work department’s failure to ask the Housing authority to assist in their section 17 duty of meeting the children’s needs and keep them safe by providing housing, using the lever of section 27. It’s a clever argument.
M and A v London Borough of Islington 2016
- The two claimants are children who are severely autistic. They live with their respective mothers in flats owned by the defendant. M has a younger brother, S, who is also severely autistic. Otherwise they are not connected, but their claims have been joined because on behalf of each it is said that the failure of the defendant to afford them a transfer to other accommodation is unlawful since where they at present live is unsafe for them in particular because all three children are drawn to windows and balconies and will try to jump out. The danger of this is all too obvious when they are at a level above the ground floor.
- The claims were lodged in July 2014. Following refusal on the papers, permission was granted at an oral renewal hearing on 18 September 2014. Expedition was required and a hearing was to take place on 26 November 2014. As will become apparent, the main ground relied on on behalf of the claimant was that Section 27 of the Children Act 1989 applied so that the defendant was obliged to take action which it had not taken to re-house the claimants. In R(C) v. Hackney London Borough Council  PTSR 1011 on November 7 2014 Turner J decided, having heard argument from Mr Wise, that s.27 did not apply. This claim was accordingly stayed pending a decision of the Court of Appeal on the claimants’ application for leave to appeal. Following refusal of leave to appeal by McCombe, LJ on 15 May 2015 the stay was lifted. Mr Wise has maintained the argument that s.27 does apply and that Turner J was wrong and has submitted that I should decline to follow his decision.
The arguments about why section 27 was held not to apply are tricky, but I’ll try to condense them
The defendant is a unitary authority. All functions which a local authority can exercise are exercisable by it. But it has within it separate compartments so that various different functions will be carried out by different persons. The two compartments material for the purposes of this case are social services and housing.
[So for this case the Housing Department and Social services department were essentially the same corporate body, just different parts of it. Let’s say right hand and left hand. Now, one might well argue that the right hand doesn’t always know what the left hand is doing, but they are still attached to the same body. ]
In some areas of the country, different authorities deal with social services and with housing. Thus s.27 of the 1989 Act fulfils an obvious need if a service which the particular authority concerned with social services cannot provide but which can be provided by a different authority is required. Mr Wise submits that it can also apply to different departments within a unitary authority. Having regard to the purpose of s.27 which is to assist in safeguarding and protecting the welfare of children in need, it is, he submits, necessary to construe s.27 to give effect to that purpose. It is only if the reference in s.27(1) to ‘that other authority’ includes a separate department within a unitary authority that that purpose, he submits, can be achieved. Turner J decided that that would be to subject s.27 to a strained and wholly artificial interpretation
The argument being that whilst s27 allows say Islington’s right hand to ask Hackney’s left hand to do something, and allows Hackney’s left hand to ask Islington’s left hand to do something, it doesn’t allow Islington’s left hand to ask Islington’s right hand to do something. Or rather, one can ask, but you’re not asking under section 27. And the duty to co-operate doesn’t arise. In plain English, if Islington’s housing and social services were just all the London Borough of Islington, it can’t co-operate with itself. A single entity can’t co-operate with itself, it needs someone else to co-operate with.
This is the Byas point “You cannot ask yourself for help” R v. Tower Hamlets LBC ex p Byas (1992) 25 HLR 105
[I’m not sure that I really go for this argument – having worked in many Local Authorities, the different departments may as well be different planets. One could easily spend as much time arguing between different departments as any fight you could pick outside. It’s a bit like saying that the Treasury and Department of Health are the same thing. Notionally yes, they are all just the British Government, but they have completely different staff, budgets, aims and managers. ]
- Mr Wise has raised the same arguments which were rejected by Turner J and has relied on the same authorities. But he has submitted that there has been a subsequent decision of the Supreme Court, Nzolameso v. Westminster City Council  PTSR 549 which assists his argument. He also relies on guidance from the Secretary of State which appears to indicate that s.27 does apply within unitary authorities. The natural meaning of the words in s.27 indicates that it is aimed at co-operation between different authorities when the authority which deals with social services and so the welfare of children in one does not have responsibility for dealing with other matters, in particular no doubt housing. It may be assumed that Parliament considered that unitary authorities would ensure that there was the necessary co-operation between the various departments so that there would be no need for a statutory requirement to achieve it. Thus in R v. Tower Hamlets LBC ex p Byas (1992) 25 HLR 105 which concerned an application to require the Council’s social services department to make a s.27 request to its housing department, Hoffman LJ observed at p.107:-
“In my judgment, this application is perfectly hopeless. Section 27 of the Children Act 1989 enables a local authority to ask for the help of one of the other authorities mentioned in s.27(3). It seems to me quite unarguable that the requesting authority can itself be the authority to which the request is addressed. You cannot ask yourself for help.”
Byas was a refusal by the Court of leave and so is not a binding authority. But, as Turner J observed, it is due considerable respect.
- Mr Wise has relied on in particular observations of Lord Nicholls in R(G) v. Barnet LBC  2 AC 208. The construction of s.27 was not argued in that case and Lord Nicholls’ observations about it were entirely obiter. He does indicate in paragraph 62, applying s.27, that a unitary authority’s social services department can request help from its housing department ‘as the local housing authority’ and the housing department must comply unless it would unduly prejudice the discharge of any of its functions. Byas was not cited. Lord Steyn was in general agreement with Lord Nicholls. Mr Wise submits that Lord Hope’s observations in paragraph 71 assist his argument. Lord Hope was simply making the point that in unitary authorities the statutory duties in relation to child care are separated from those relating to housing.
- R(G) v. Southwark LBC  1 WLR 1299 concerned the councils’ obligation to provide accommodation for a child. Lady Hale gave the only reasoned opinion. At paragraph 33 she referred to s.27 of the 1989 Act and the guidance issued by the Secretary of State in May 2008 on the issue of co-operation between authorities. She stated:-
“Section 27 of the 1989 Act empowers a children’s authority to ask other authorities, including any local housing authority, for ‘help in the exercise of any of their functions’.”
Since Southwark is a unitary authority, her observations do seem to assume that s.27 can apply to such an authority. But Byas was not cited and it is not clear the extent to which (if at all) s.27 was raised in argument.
[For me, I think Lady Hale dealing expressly with s27 beats Hoffman LJ on an authority which is not binding]
But anyway, we move on to the Government’s guidance published in March 2015 telling Local Authorities that “where requested by a local authority children’s social care department, professionals from other parties of the local authority such as housing have a duty to co-operate under section 27”
That couldn’t be clearer that the guidance believes that s27 applies equally to unitary authorities as it does to any other arrangement.
- Nzolameso (supra) concerned the lawfulness of Westminster’s decision to house a single parent who was suffering from ill health and was homeless in Milton Keynes. An issue dealt with by the Supreme Court was the application of s.11 of the 2004 Children Act. It did not require that a child’s welfare should be the paramount or even a primary consideration, but it had to be properly taken into account (paragraph 22). But s.27 was not considered at all and I find nothing in the case which supports Mr Wise’s construction of s.27.
- In March 2015 the Secretary of State issued updated guidance entitled ‘Working Together to Safeguard Children’. It was issued under a number of statutory provisions including s.7 of the Local Authority Social Services Act 1970 and s.11(4) of the Children Act 2004. It will be recalled that s.7 of the 1970 Act requires that the authority must act under such guidance and that s.11(4) imposes the lesser obligation to have regard to such guidance. In paragraph 68 of the guidance, it is said:-
“Where requested to do so by local authority children’s social care, professionals from other parts of the local authority such as housing and those in health organisations have a duty to co-operate under Section 27 of the Children Act 1989 by assisting the local authority in carrying out its children’s functions.”
There is a similar paragraph in guidance issued under the Children Act 1989 which in paragraph 428 states:-
“Health authorities, local authorities, local housing authorities and other social services departments have a duty to comply with a request from a children’s services department for help in the exercise of their functions [section 27]”
- Mr Wise points out that where an Act requires that persons act on guidance, there must be very good reason not to follow it. But the guidance must comply with the law. Following Turner J’s decision, the law is that s.27 does not apply to unitary authorities. It follows that the indication that it does in the guidance is not in accordance with the law and it cannot be used as a ground for submitting that Turner J’s decision, now upheld by McCombe LJ, was wrong.
- As I pointed out in argument, it seems to me that the attempt to overturn Turner J’s decision was entirely unnecessary. It is apparent that Parliament required by s.27 the degree of co-operation between authorities set out in it. While the guidance is poorly drafted, it can and should be read to require that the same degree of co-operation between departments in a unitary authority is given as would be required by s.27 between different authorities. Lord Nicholl’s observations in R(G) v. Barnet LBC (supra) went too far and unnecessarily applied s.27 in terms and, Lady Hale in R(G) v. Southwark LBC was, I fear, guilty of loose reasoning, but the effect of her observations is to make clear that within a unitary authority different departments must act in the same way as would be required if s.27 did apply.
- I note that in R(C) v. Hackney LBC it was agreed between the parties that if s.27 did not apply the claim had to be dismissed. That was, I think, an unfortunate approach since s.27 was not needed to achieve the required result. As I have said, I am satisfied that the argument that s.27 must apply directly is a barren argument since in a unitary authority it follows Parliament’s will, the Secretary of State’s guidance and observations of Lord Nicholls and Lady Hale that the same approach as required by s.27 is applied. Mr Baker did not seek to argue that my approach was incorrect, his case being that the defendant’s system in operation as applied in the cases of each of the claimants did meet the s.27 test. Mr Wise did in the end recognise that my conclusion provided the claimants with all that they could have had if s.27 directly applied. I should of course add that I am entirely satisfied that Turner J’s construction of s.27 was correct. It follows that I do not need to deal with Mr Wise’s arguments based on human rights and Article 3 of the UN Convention on the Rights of the Child which he deployed to support his contention that s.27 applied. They are all unnecessary since I have decided that its requirements are to be applied indirectly.
I’m afraid that Collins J has made my head hurt here. Basically he is saying that s27 does not apply to unitary authorities and that Turner J was right to say that, but the effect of the guidance and the case law is that within a unitary authority different departments must act in the same way as would be required if s27 did apply. [Which is a very long route to a net effect of s27 applies]
In any event, Collins J then went on to dismiss the claim on the facts. That the social care and housing department had had discussions and meetings and conversations and housing were alive to the concerns of social care but had made their determination that provision of alternative housing was not required. Whether s27 applies or not, social care don’t get to make housing bend their own rules and policies and statutory duties.
- Mr Wise submits that the system in force does not equate to that which s.27 would require. It is I think important to bear in mind the obligation on the requested authority which is to comply with a request for help if it is “compatible with their own statutory or other duties and objectives and does not wrongly prejudice the discharge of any of these functions.” In R v. Northavon DC ex p. Smith  2AC 402 the House of Lords considered what the correct approach should be. Lord Templeman’s observations on the manner s.27 should be applied were agreed with by the other members of the committee. On page 410 between letters D and H, Lord Templeman said:-
“The provisions of section 27 of the Children Act of 1989 which, as Mr Lester observed, required the housing authority to co-operate with the social services authority, imposed on the housing authority a duty to ascertain whether the housing authority could, without unduly prejudicing the discharge of their functions, provide a solution or co-operate in securing a solution to the problems of the Smith family to the extent necessary to prevent the children from suffering from lack of accommodation.
Following such consideration the result might have been that no solution was obtainable with the reasonable co-operation of the housing authority. There might have been no available accommodation which the housing authority could provide without unduly prejudicing the discharge of any of their functions. There might have been no solution which did not impose on the housing authority a financial burden which they considered unduly prejudicial to the discharge of their functions. Mr Smith might have been an unacceptable tenant. Failing any acceptable solution, it would have been the duty of the social services authority to protect the children of Mr Smith by providing financial assistance towards the accommodation of the family or by exercising the other powers available to the social services authority under the Children Act 1989.
In the event the housing authority were able, without in their view unduly prejudicing the discharge of any of their functions, to co-operate in arrangements whereby the children of Mr Smith did not suffer from lack of accommodation. The social services authority are responsible for children and the housing authority are responsible for housing. The two authorities must co-operate. Judicial review is not the way to obtain co-operation. The court cannot decide what form co-operation should take. Both forms of authority have difficult tasks which are of great importance and for which they may feel their resources are not wholly adequate. The authorities must together do the best they can.”
His concluding remarks on the undesirability of using judicial review to obtain the necessary co-operation are to be noted. And it is equally important to bear in mind that s.27 does not require that the functions of the requesting or the requested authority are changed. The same approach will be material in a unitary authority where one department is requested to assist the other.
There is some complex points system, and actually there is reference obliquely in the judgment to the Deeqa Mohammed case referred to earlier, since this is the same London Borough
- The witness produces a copy of the exceptional housing needs policy which applies to children in need. It provides that any professional employed in specialist services (which will cover children such as the claimant) may make a referral under the policy and by doing so will be seeking to prioritise the housing needs for the benefit of a child or young person. It is only to be used if (so far as material to these claims) there is a significant risk of a child needing to be looked after and no suitable housing is available and an ordinary transfer application would be likely to lead to delay which is considered detrimental to a child’s welfare. Such a referral can be dealt with by what is known as ‘the Director’s Scheme’ which enables the Director of Children’s Services to make up to 15 nominations for priority housing to the Housing Department. Acceptance by the housing department will result in an initial award of 150 points and the case will be kept under regular review.
- Apart from the Director’s Scheme, there is the RAG system. If the TAC meeting which will follow if the OT’s assessment of risk recommends that there is a need for alternative accommodation, there will be a placement on the Risk Register at red or amber. A Housing Needs meeting attended by officers from Children Services, Housing and OT is held monthly and at such meeting the OT will raise an amber case that needs to be reviewed. In paragraph 10 of her statement, the witness states:-
“In order to promote co-operative working between Housing and Children Services, I have arranged training in safeguarding for my officers involved in the allocation process. Officers in my division understand that Children services can request assistance from Housing and that they are required to support Children Services in their safeguarding duties. I have recently implemented a monthly drop-in surgery for social workers from Children Services to come and seek advice on the housing allocation scheme and housing options for their clients. Cases on the risk register are kept under review at TAC meetings and at the monthly Housing Needs meetings; Children Services can request further assistance from Housing at these meetings as necessary.”
- Mr Wise criticises the system in that the OT who assesses the risk is not an employee of the defendant. There is, he has submitted, no children services input into whether a child goes on the risk register whether red or amber. This he submits is a fatal flaw since if there is to be an equivalent arrangement to that provided for by s.27, the request for assistance must come from the social services department and so social workers must be able to instigate it. It is clear that the system does involve all relevant professionals. There is no reason to doubt that an OT is the best person to assess risk. It is apparent from the evidence of Ms Lucas that it is open to anyone in Children Services to raise any concerns about risk in existing housing. The fact that the OT and the Head of Paediatric Therapy and Specialist Nursing are not employed by the defendant is not of any significance since they work together with social workers.
- While no family on the amber level of risk has been made a direct offer of alternative accommodation, Ms Lucas has said that there is no bar in principle to that happening if a meeting identified such a case.
- I have no doubt that the system in operation, which owes much to the death of the child in 2012 when a new approach was recognised to be needed, is such as does comply with the indirect application of s.27.
The Judge was content that this system was compatible with s27 (which did not apply on the statue, but as a result of the guidance and case law nearly did so would be treated as though it did) and thus for judicial review purposes, the Local Authority had not behaved unreasonably.
I guess in a judicial review, you’re not able to make the succinct argument that the last time social workers were worried that a child might fall out of a window in Islington the child did, so maybe when you’re worried that three children (one of whom is autistic) might fall out of a window it is reasonable to re-house them (since it might not be unreasonable to not re-house them)
Who knew there was quite so much case law and controversy about section 27?