Update: local government

The case of Brent LBC v Risk Management Partners Ltd, London Authorities Mutual Limited and Another (Interested Parties) [2009] EWCA Civ 490, as discussed in the last update (Solicitors Journal 153/37, 6 October 2009) concluded that local authorities did not have the statutory power '“ whether under section 111 of the Local Government Act 1972 or section 2 of the Local Government Act 2000 '“ to establish, become a member of, and make payments to the London Authorities Mutual Limited (LAML) '“ a mutual insurance company. The establishment of such a company did not fall within the remit of section 111 of the 1972 Act as it was not incidental to the existing functions of a local authority and did not promote the well-being of the local area (as opposed to promoting the financial well-being of the authority). As was noted in the last update, local authorities were vocal in expressing their disappointment about this decision.

The response from the government was swift. Part 2, chapter 2 of the Local Democracy, Economic Development and Construction Act 2009 overturns the decision in Brent and expressly confers power on local authorities in both England and Wales to join a mutual insurance company, to makepayments to the same and to assume financial liabilities contingent upon being a member of such a scheme. The secretary of state (or Welsh ministers) may issue guidance about the same and, one imagines, will do so in due course. No commencement date has yet been set.

The evidence in the Brent case was that local authorities expected to produce average savings in premiums of between 15 per cent and 20 per cent per annum. Given the ever increasing demands placed on authorities and the anticipated reduction in their income over the coming years, an opportunity to make savings of this nature is to be welcomed. However, these amendments only address the narrow concerns raised by the Brent case. The restrictive approach taken by the Court of Appeal to the 'well-being' power under section 2 of the 2000 Act is, of course, not addressed by this new Act.

Access to confidential information

Those working in local government law will be well aware of the possibility of obtaining information about the workings of '“ and expenditure by '“ authorities through the Freedom of Information Act 2000. However, Veolia ES Nottinghamshire Ltd v Nottinghamshire CC & Ors [2009] EWHC 2382 (Admin) raises the interesting possibility of using the Audit Commission Act 1998.

The claimant was a waste management company. It sought to challenge the decision of the local authority to make certain documents available for inspection by an interested party (a local elector in the areas of the local authority). The claimant carried out various waste management tasks for the authority and submitted monthly invoices for work done. Section 15(1) of the Audit Commission Act 1998 entitled all persons interested (such as local electors) to inspect and make copies of all books, deeds, contracts, bills, vouchers and receipts relating to the accounts of the authority, those accounts being required to be audited by an auditor appointed by the Audit Commission.

The interested party sought to inspect certain parts of the contract between the claimant and the authority and relied on the 1998 Act. The claimant sought an order requiring the authority not to disclose the relevant documents, on the grounds of commercial confidentiality. The claim was rejected. The interested party was entitled to access to the 'accounts' and information 'relating to' the 'accounting records'. A broad interpretation was appropriate. Commercial sensitivity was not '“ of itself '“ a reason to refuse access to documents. The intention of Parliament was to enable the public to scrutinise the activities of local authorities and a narrow definition would defeat that purpose.

The claimant has appealed and the matter is listed for hearing between 16 December 2009 and 6 January 2010.

Section 20 duty

R (A) v Leicester City Council and the London Borough of Hillingdon [2009] EWHC 2351 (Admin) produced an answer to the 'interesting question' posed by the Court of Appeal in R (Liverpool CC) v LB Hillingdon and AK (interested party) [2009] EWCA Civ 1702 (see 'Update: local government', Solicitors Journal 153/12, 31 March 2009) namely, whether more than one local social services authority can owe a duty under section 20 of the Children Act 1989 to the same child at the same time.

Ms A is an orphan from Somalia who arrived in the UK when she was 16 and a half years old. She claimed asylum upon her arrival in the UK, but this was rejected on the basis that she was a child. Upon the determination of her asylum claim, she was released into the care of the London Borough of Hillingdon. She immediately told social workers that she wanted to move to Leicester to live with a family of Somalis that she knew.

She moved to Leicester '“ of her own volition (such that Hillingdon thought she had run away and reported her to the police as a missing person) '“ in August 2007 and approached Leicester City Council ('Leicester') and the legal conundrum began.

Hillingdon took the view that, by leaving their area voluntarily, Ms A had ceased to be owed any duty by them under section 20 of the Children Act 1989 and, in their view, Leicester now had to care for her as they saw fit. Leicester did not agree with this, pointing out that Hillingdon had not undertaken any assessment of her needs and, hence, could not have discharged any duties owed to Ms A. The two local authorities could not agree as to the way forward and Ms A was forced to issue judicial review proceedings against them both, seeking to determine which one of them was responsible for assessing and meeting her needs.

The case came before Collins J and, after some heavy judicial hints were dropped, a consent order was produced which had the effect at least of requiring a proper section 20 assessment to be carried out and identified needs to be met, subject to the local authorities arguing among themselves as to who should pay for it. Permission was subsequently granted to move for judicial review against both local authorities.

The claim was allowed. It was necessary for Hillingdon to have carried out an assessment under section 20 of the Children Act 1989. As Dyson LJ said in the Liverpool case, 'an assessment of needs will always be required'. Unless and until that was done, there could be no discharge of the section 20 duty. The duty 'endures until such an assessment has taken place' and, depending on the result of the assessment, the duty may 'survive such an assessment'.

Importantly, the mere fact that Ms A moved away from Hillingdon did not end their duty. The whole purpose of section 20 was to protect vulnerable children. The local authority must 'display the infinite patience of a good parent and not take advantage of what may be impulsive and unwise acts to absolve themselves of [that] duty'.

That failing did not, however, absolve Leicester. Leicester could not refuse to offer support to Ms A. They were on notice that Hillingdon were denying responsibility and, during that time, Ms A was present in Leicester's area. It should not have been 'beyond the wit of two local authorities with access to legal advice and substantial '“ albeit not unlimited '“ resources to devise plans and contingencies for such situations' (at 51). It was unlawful to defer the assessment until the two authorities could sort out who would discharge any identified needs. There was no reason why Hillingdon and Leicester could not owe concurrent duties to Ms A.

This is an important case. It should (although I am not hopeful) end the attempts by some social services authorities to avoid their section 20 obligations by letting/moving/encouraging a child to move to another area. If they can each owe the duty then there is no incentive to try these sorts of things. The appropriate approach, as Collins J said, is for the two authorities to agree that one of them will do the assessment and meet any identified needs on a 'without prejudice' basis and to enable them to fight about the costs later if needed.

Determining the age of children in asylum cases

In R (A) v London Borough of Croydon and R (M) v London Borough of Lambeth [2009] UKSC 8, the Supreme Court was concerned with disputes about the age of people who sought assistance from a local children's services authority (see Solicitors Journal 153/45, 1 December 2009). This has become a particularly acute problem for authorities in recent years with the increase in unaccompanied young people entering the UK, some to claim asylum and some trafficked for the benefit of others. Disputes had arisen between authorities and young people as to the age of the young person. If the authority formed the view that the young person was over 18, then they could not be assisted under the Children Act 1989.

The Supreme Court concluded that whether a person is a 'child' is a question of fact to be decided by the authority on the evidence before it, but which could be challenged '“ and determined by '“ a court.

A court could properly deal with such a question and would have to decide '“ on the balance of probabilities '“ what the age of the young person was. If judicial review procedures needed to be adapted to deal with such a question (i.e. by hearing contested oral evidence) then the Administrative Court was capable of making such adaptations.

That was an entirely different question from whether or not a child was 'in need'. That question, subject only to public law principles, was unlikely to ever have a clear right or wrong answer and would only be capable of challenge on traditional public law grounds.

In light of those conclusions, it was not necessary to consider whether or not a decision as to whether or not a person was a child was a 'determination of a civil right' within the meaning of article 6 of the European Convention of Human Rights. Baroness Hale was most reluctant to accept that 'article 6 requires the judicialisation of claims to welfare services of this kind'. If there was any civil right engaged at all, then it was at 'the periphery of such rights' and judicial review was more than adequate to comply with article 6. Lord Hope went further and was able to assert 'with reasonable confidence' that the duties owed to children under the Children Act 1989 did not give rise to a 'civil right' at all.