County loses appeal over support for disabled Roma child who moves out of area

A county council has lost a Court of Appeal bid to overturn a ruling that the authority had the power to provide support for a disabled child even when his Roma Gypsy family are working in different parts of the country and outside its borders.

The case of J, R (on Application of) v Worcestershire County Council [2014] EWCA Civ 1518 is expected to have major implications for local authorities.

It concerned a four-year-old boy, who is part of a travelling family that travels round the country in the summer running a helter skelter and bungee trampoline. In the winter the boy and his family stay with his grandfather in Malvern, Worcestershire.

Worcestershire County Council assessed the boy and agreed to pay for nursery care while he was in its area. However, it refused to fund services while the family were travelling, telling them to access the host local authority’s services.

In the High Court Mr Justice Holman upheld a claim brought on the boy’s behalf. The judge said his “very clear view” was that the power under s. 17(1) of the Children Act 1989 was, as the claimant claimed, capable of being exercised outside the area of the local authority and at a time when the child himself is outside the area.

Worcestershire took the case to the Court of Appeal. The council argued that:

1. It had a duty to assess the needs of a child who is physically present in their area and who is a child in need as defined by the Act;
2. Having assessed the needs, the local authority has the power to provide services outside their area for a child they have assessed and who is physically present in their area, at the point of provision of the assessed services.
3. They do not have the power to provide services for a child who has been assessed whilst physically present in their area, but who has voluntarily left the area, albeit temporarily. A distinction, the council submitted, must be drawn between children who leave solely in order to receive services and children who leave for some other unconnected reason.

Rejecting the council’s case, Lady Justice King said: “S17 CA 1989's somewhat spurious clarity has already necessitated the assistance of both the Court of Appeal and the House of Lords in interpreting its proper construction. In my judgment the judge found himself in similar difficulty in relation to this issue; the wording is equivocal and does not, on its own, provide an answer to the question of whether a local authority has the power to provide services outside its area where a child in need has left the area voluntarily.”

The Court of Appeal judge said she agreed with Mr Justice Holman and counsel for the claimant and the Equality and Human Rights Commission, which intervened in the case, that s. 17 “conferred a broadly expressed, general duty (and power) which when, when it relates to the provision of services, should be purposively construed”.

Lady Justice King set out a number of points in relation to such a construction. These included that, in putting forward their interpretation of s17 CA 1989, the local authority had been “compelled to make a somewhat artificial distinction as between children sent out of the area by the authority to take up services they are providing and those who have left the area ‘voluntarily’”.

She said that such a distinction did not seem to her to be sustainable; “the local authority having accepted, as they do, that they have a power to provide services outside their area, it must follow that such provision is under an ‘umbrella’ power to ‘Provide services for children in need, their families and others’.”

Lady Justice King said a purposive construction of s. 17 led to only one result, “namely that a local authority has the power to provide services for a child in need who they have assessed regardless of the circumstances which have led to that child being no longer physically present in the area of that local authority”.

Worcestershire had asked the Court of Appeal to take into consideration the impact of such a construction upon hard pressed local authorities.

But Lady Justice King said: “In my judgment a proper interpretation of the section does not result in an intolerable burden on an authority and it is erroneous to picture a local authority left coping with providing for services long after families have moved away, or in relation to the feckless or irresponsible parent passing through their area.

“As already stated the council have the power and not a duty to provide assessed services and are therefore entitled to consider what services they will provide for a child in need having carried out the assessment.”

She added: “Legitimate considerations as suggested by the judge in his judgment will include the child's connection with the area, how long they intend to be away, whether, as with this travelling family, they will be staying for short periods in many different locations and also whether they are likely ever to return.”

The Court of Appeal judge said “in all the circumstances” she therefore endorsed Mr Justice Holman's finding that the power under s. 17(1) was "capable of being exercised outside the area of the local authority and at a time when the child himself is outside their area". She dismissed the appeal.

The Master of the Rolls agreed that the appeal should be dismissed, essentially for the reasons given by Lady Justice King. He said:

1. The issue was whether there was a power in local authority A to provide services to a child whilst residing in the area of local authority B. There was no duty on local authority A to provide services in such circumstances.
2. There was every reason to suppose that Parliament would have intended to give local authorities the power to provide services to children in need even when they were residing in the area of a different authority.
3. The purpose of section 17 was to promote the welfare and best interests of children in need. Unless the language of the section compelled a different interpretation, the court should construe it in a way which advanced these aims.

On the last point, the Master of the Rolls said the interpretation adopted by the judge had this effect. “It means that local authority A has the power to provide services for a child in need even where the child is resident in the area of local authority B.”

The MR said it was to be expected that local authority A would only exercise that power if it considered that it was in the best interests of the child to do so.

“The interpretation for which [counsel for Worcestershire] contends means that local authority A cannot provide services for a child who is resident in the area of local authority B even if it considers that it is in the best interests of the child to do so,” he pointed out.

“There is nothing in the language of section 17(1) which, either expressly or by necessary implication, compels an interpretation which has this effect. This is a powerful reason for adopting the interpretation which found favour with the judge.”

Lord Justice Floyd agreed with both judgments.

The claimant’s lawyer, Anna Moore of Bindmans LLP, said: “This is an important judgment confirming the powers given to local authorities to assist children in need inside and out of their areas. The case has the potential to assist the many children in need who move between areas for whatever reason, including children from gypsy traveller communities and abducted or runaway children.”