City council wrongly decided child was not in need in its area: High Court

Birmingham City Council acted wrongly when it decided that a child was not in need of accommodation in its area because his mother had recently left the London Borough of Bromley.

Edward Pepperall QC, sitting as a deputy High Court judge, said in his judgment that in October 2016, Birmingham City Council assessed NM as not being a child in need within its area within the meaning of s.17 of the Children Act 1989. His mother BC sought judicial review. 

The judge granted permission for judicial review and quashed Birmingham’s decision.

The mother, BC, lived with 6-year-old NM in Bromley until July 2016 but then moved to Birmingham, initially to live with a cousin. NM remained in London until around 10 October when he came to live with his mother in Birmingam. 

She challenged Birmingham’s reliance in its refusal on her and her son having previously lived in Bromley and argued that NM’s physical presence in the Birmingham area, even if temporary or short lived, was sufficient to establish that the city council was responsible for his accommodation.

Birmingham argued that it had carried out a needs assessment and not simply decided the matter on the basis that NM was not ‘a child within its area’.

However, a letter sent by the council stated: “The evidence presented to us at this point suggested that BC's need for support arose whilst she was a resident of a London Borough, Bromley. Birmingham City Council will not be offering BC any support at this time.” 

The judge said that when a child moves area the first local authority would be responsible for assessing need while the child was living in its area but “that is not, however, the same as saying that the second local authority has no such responsibility once the child has moved to its area”.

He added: “Physical presence is both necessary and of itself sufficient to establish that a child is within a local authority's area. Therefore NM was, in my judgment, plainly a child within Birmingham City Council’s area within the meaning of s.17 at the time of its assessment. Accordingly, it fell to Birmingham, and not Bromley, to assess his needs pursuant to s.17.” 

The judge also said that while the arguments were finely balanced he found the principal factor in Birmingham’s decision was its view that BC should have been seeking assistance from Bromley.

“I find that this error of law infected the council's reasoning and caused it to fail to make sufficiently diligent enquiries into the availability and suitability of accommodation,” he said.

Mark Smulian