Let’s be frank: The decision in MN and KN v London Borough of Hackney

Sleeping rough on the streets of London is not an appealing prospect.  It is all the more unappealing for anyone with two young children in the grip of an unseasonably cold winter.  It was in order to avoid this fate that, in January 2012, the parents of MN and KN (the claimants in this case) approached their local authority, the London Borough of Hackney, and asked for assistance.

It was not the first time that the family had approached the Local Authority to ask for such assistance; they had previously indicated in March 2011 that they were facing imminent homelessness.  As the parents were in the country illegally, having both overstayed on visitor’s visas from Jamaica, the family were not eligible for assistance as homeless applicants.  Instead they had to rely on the Local Authority using its power to accommodate the family under section 17 of the Children Act 1989. That section will be familiar to many claimant and defendant lawyers alike, imposing on local authorities a duty:

“…to safeguard and promote the welfare of children within their area who are in need.”

The crucial phrase in section 17 is “children within their area who are in need.”  If, and only if, the children asking for assistance are “in need” does the duty under section 17 bite.

As anyone working within children’s services in a local authority will know, determining whether this is the case can be far from straightforward.  It can be particularly difficult in the case of people who are in the country unlawfully, given the reluctance of such overstayers to give away where they have been living and how they have been supporting themselves.  But what is a local authority to do in a case where the applicants for assistance are so scant in the information they provide that it is difficult to reach a meaningful determination of whether the children are in fact in need or whether the family has the means and resources to support itself instead? On 10 May 2013 Mr Justice Leggatt sitting in the Administrative Division of the High Court gave the answer to this important question.

Background

MN and KN were both born in the UK to Jamaican nationals who had overstayed their visitors’ visas and were therefore in the country unlawfully.  Their parents applied for leave to remain in the UK in 2010 but that application was refused by the Home Secretary.

From their arrival in the country until March 2011, the family did not request any assistance from social services.  Instead they relied on the goodwill of friends and family who accommodated and supported them financially, often in exchange for domestic help and babysitting services.

However in March 2011 the children’s mother approached the London Borough of Hackney to tell them that she was about to become homeless.  Hackney stated that it could not assist the family because of their immigration status. The family therefore resorted to supporting themselves as best they could.

However in January 2012 the family claimed once again to be facing street homelessness, having apparently exhausted the goodwill of their friends. This time Hackney commissioned an assessment under section 17 of the Children Act 1989 to determine whether the two children were in need and therefore eligible for support under that section. At the same time Hackney commissioned a human rights assessment to determine whether if a refusal of support under section 17 would lead to a breach of the family’s rights under the European Convention.

The Local Authority’s assessments

Hackney ultimately concluded that the children were not in need (and that there would be no ECHR breach by refusing to assist them).

However the conclusion that the children were not “in need” was a controversial one.  The social worker who completed the section 17 assessment relied heavily on the fact that the family had not been frank in explaining why their circumstances had now changed such that they could no longer rely on friends and family to support them. 

In his assessment, the social worker, who had many years of experience, supported his conclusion that the children were not in need by stating:

“[The family] have been reliant on the good will of their friends and family and this has been the situation since they came to the UK.  They have not provided any information to indicate what has changed and why the support from family and friends can no longer be provided…”

He went on to say:

“[The family] have not explained why this good will and kindness has ceased and have given very scant information about how they have supported themselves in this country to date.  They have provided no contact details for family and friends who provided assistance for the first nine years of their stay in the UK some of whom continue to provide financial assistance…”

He continued:

“[The family] have sustained a life in the UK without services for 10 years.  It is the author’s view that this family is resourceful and has successfully managed to bring up two children without state support for the last 10 years and they will be able to continue to do so without state support.”

On this basis, the social worker concluded that:

 “The family can […] continue to support themselves as hitherto…”

The lawfulness of that approach

In considering whether that approach was lawful, the High Court began by reiterating the approach put forward by the Supreme Court in R (A) v Croydon LBC [2009] 1 WLR 2557, in which the Supreme Court gave a wide margin of appreciation to local authorities in deciding whether a child is in need.  At paragraph 26 of the Supreme Court’s judgment, Lady Hale stated:

“Within the limits of fair process and 'Wednesbury reasonableness' there are no clear cut right or wrong answers.”

Following this approach, the High Court in the case of MN and KN indicated that if a local authority is unable to determine positively that a child is in need, then the correct approach is for it to conclude that no duty under section 17 arises.  At paragraph 42 of his judgment, Mr Justice Leggatt held:

“[U]nless and until a local authority has determined that a child within its area is "in need", its powers under section 17 to provide services to the child or the child's family are not engaged. Accordingly, since in this case the assessments undertaken by [the social worker] did not conclude, and Hackney did not decide, that as of 16 March 2012 the claimants were "in need", Hackney did not have power under section 17 to provide accommodation or any other assistance to the claimants or their parents.”

Mr Justice Leggatt observed that where a family had failed to provide sufficient information to persuade the local authority that their children were “in need”, then the local authority’s decision not to provide section 17 support can only be challenged if it the authority had failed to carry out a sufficient investigation (or if the decision were irrational).

Mr Justice Leggatt held that a local authority’s investigation cannot be said to be insufficient where the lack of information available had been the fault of the family concerned.  He stated at paragraph 44 of his judgment:

“[T]he reason for [the social worker’s] inability to make a positive finding that the family was, or was not, destitute was not any lack of diligence or effort on his part, but the failure of the claimants' parents to provide him with sufficient information.”

Finally the Court held that the authority was entitled to go even further and to draw negative conclusions from the family’s refusal to provide information, holding that the social worker:

“…was entitled to request relevant information including detailed information about how the family had supported themselves in the past. He was entitled to draw adverse inferences, or at least to refuse to draw favourable inferences, when only scant information was provided. All these were matters of fact and judgment which the court cannot and should not attempt to second-guess. I am in no position to say that the approach adopted or the conclusion reached by [the social worker] was wrong let alone irrational.”

The impact of the decision

The decision will be welcomed by local authorities faced with applicants for assistance who are reluctant to give details of their lives in the UK.  Had the High Court reached a different conclusion, local authorities would undoubtedly have been left asking what more they can do in circumstances where a family tell them that they need assistance but refuse to give any more details about their circumstances. 

However the decision risks tipping the balance too far against such homeless applicants. The decision of the Court that local authorities can actually draw adverse conclusions from a lack of frankness by applicants is potentially a worrying development. Applicants who are in the country illegally will often be reluctant to give details about how they have been supporting themselves and with whose help.  For a local authority to conclude that this lack of frankness infers that the family concerned are not actually in need at all but have the means to support themselves is likely to be a step too far. The lack of frankness which illegal overstayers often exhibit usually arises because they do not want to get their friends, family, employers into trouble and because they do not want to risk closing down avenues of support which they rely on to survive. Giving the green light to local authorities to infer that this lack of frankness is actually because the family are being dishonest about their situation could have potentially serious consequences for families applying under section 17 for assistance who have nowhere else to turn. This aspect of the judgment is one which it seems unlikely that the courts will wish to endorse in the future.

For more information, please refer to the judgment.