London Borough of Lewisham (17 003 430)

Category : Children's care services > Other

Decision : Upheld

Decision date : 12 Apr 2018

The Ombudsman's final decision:

Summary: Mrs B complained the Council failed to properly assess her children under section 17 of the Children Act 1989. The Council was not at fault for not carrying out a section 17 assessment. The Council delayed providing Mrs B with a formal decision letter. That denied Mrs B the opportunity to provide more evidence at an earlier stage although it did not affect the outcome. An apology and a reminder to officers is satisfactory remedy for the injustice caused.

The complaint

  1. The complainant, whom I shall refer to as Mrs B, complained about the way the Council dealt with the family when they presented as homeless. Mrs B complained the Council:
    • failed to properly assess her children under section 17 of the Children Act 1989 which resulted in the family being made homeless; and
    • unreasonably refused to consider the complaint under its statutory procedure and instead referred her to its customer complaints department.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  2. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and Mrs B's comments;
    • made enquiries of the Council and considered the comments and documents the Council provided;
    • considered Mrs B’s representative’s comments on my draft decisions; and
    • gave the Council an opportunity to comment on my draft decisions.

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What I found

  1. Section 17 of the Children Act 1989 (the Act) creates a duty for the Council to provide services for children in need. In deciding whether a child is in need the Act states a child shall be taken to be in need if:
    • he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
    • his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
    • he is disabled.
  2. Section 20 of the Act says every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of:
    • there being no person who has parental responsibility for him;
    • his being lost or having been abandoned; or
    • the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.
  3. The legal case of Blackburn-Smith v LB Lambeth 2007 says section 17 of the Act is not a means by which the restrictions on access to welfare support for those with no or limited immigration status may be circumvented.
  4. The legal case of R (N) v Newham LBC (2013) EWHC 2475 upheld Newham council’s refusal to support a family. In that case the court said it was not clear whether the family had access to support from family and friends and the family had declined to provide details which would have enabled the council to contact those friends and family. The court agreed with the council it was impossible to decide whether those other people were unwilling to provide support and so the refusal of support by the council was not unlawful.
  5. The legal case of R (MN and KN) v Hackney LBC (2013) EWHC 1205 (admin) established unless and until the Council is satisfied a child is a child in need no duty to assist arises.
  6. The legal case of Giwa v Lewisham Borough Council 2015 concluded the Council’s method of conducting an initial assessment by the no recourse to public funds team before deciding whether the circumstances of the case justified a full assessment was an option open to the Council and therefore lawful.
  7. The Council produced a report for its Cabinet in 2015 on the no recourse to public funds pilot scheme. The report says families with no recourse to public funds are entitled to present to the Council seeking support under the Act. It notes section 17 of the Act sets out the general duty on local authorities to safeguard and promote the welfare of children within their area who are in need. It records under the Act the Council has a duty to assess families presenting as in need and has the power to provide services to those children and families which may include providing accommodation.
  8. The report records the process must decide whether the family is destitute or homeless and therefore whether there is a child in need. It says in assessing whether the family is destitute and therefore in need it uses the definition of destitution in section 95 of the Immigration and Asylum Act 1999. It notes this Act says someone is destitute if they or their dependents do not have adequate accommodation or any means of getting it and/or they cannot meet essential living needs. It records destitution involves a high threshold. It says the assessment involves credit checks, reviewing bank statements, reviewing previous employment history and why that has ended, assessing available support networks and why those have ended and finding out whether the current accommodation has been legally terminated. It refers to the Hackney and Newham cases. It notes they entitle the Council to decide a family is not destitute if the adults do not provide enough information for the Council to reach a finding of destitution.

Description of what happened in this case

  1. Mrs B lived in the United Kingdom illegally for many years before securing leave to remain in March 2016. That leave to remain gave Mrs B’s permission to work but without recourse to public funds. Mrs B and her family have occupied various properties through friends and the local church since 2002 and have not had to pay rent. However, the Council discovered in 2015 Mrs B and her family were living in a Council property for which they did not have a tenancy. The Council therefore told Mrs B the family would have to leave.
  2. Mrs B visited the Council in February 2016. Mrs B told the Council the family were destitute and facing eviction. The Council’s no recourse to public funds team conducted an assessment and did not identify evidence of an impending eviction. The Council therefore took no action.
  3. Mrs B returned to the Council in April 2016. Mrs B said she was about to be evicted and could not manage financially. The Council did not receive any evidence to show the eviction was about to take place. The Council advised Mrs B to apply to the Home Office to lift the no recourse to public funds restriction.
  4. Mrs B returned to the Council on 14 September with an eviction notice for 21 September. The no recourse to public funds team again assessed Mrs B. The Council decided the family was not destitute or unable to make their own arrangements for accommodation. The Council therefore told Mrs B it did not have a duty to provide emergency accommodation.
  5. Mrs B visited the Council again on 19 September. A social worker also spoke to Mrs B although the social worker did not complete a formal assessment. The Council decided the family were not destitute and did not conduct an assessment.
  6. Mrs B and her family were evicted on 21 September. Mrs B says she and her family spent most of the evening in McDonald’s and then went to the police station. Mrs B contacted the Council’s out of hours team from the police station. The officer she spoke to reminded her of the decision the Council had already reached. The Council offered support to Mrs B’s children under section 20 of the Act, which Mrs B declined. Mrs B says she visited the Council the following day, on 22 September. However, the Council does not have any note of a visit on that day. That may be because, as Mrs B says, she did not meet with officers. I understand Mrs B secured accommodation for her family with friends that evening.
  7. Mrs B came to the Council again on 23 September and the Council told her it did not have a duty to provide emergency accommodation.
  8. Mrs B put in an application for judicial review. As part of that process I understand the court ordered the Council to provide interim accommodation pending resolution of the judicial review proceedings. The Council later completed a core assessment which decided there were no child welfare concerns. The Council is no longer providing temporary accommodation and Mrs B has secured removal of the no recourse to public funds requirement on her leave to remain.

Mrs B’s allegations

  1. Mrs B says the Council failed to properly assess her children under section 17 of the Act when they presented to the Council as homeless, or threatened with homelessness, up to and including September 2016. Mrs B says she does not believe the Council carried out an assessment to decide whether the children were in need before declining to provide accommodation. In the alternative, Mrs B says if there was an assessment of the children the Council allowed officers from the no recourse to public funds team to assess them. Mrs B says a social worker should have completed that assessment. Mrs B therefore says the Council did not carry out the assessment properly. Mrs B says if the Council had carried out a proper assessment it would have prevented the children becoming street homeless. That is because Mrs B believes the Council would likely have identified the children as children in need and would have provided accommodation. Mrs B says because the Council did not assess her children they were street homeless on the evening of 21 September.

The Council’s position

  1. The Council says when an applicant has been in the UK for many years without recourse to public funds it is appropriate for the Council, in assessing whether a child is in need, to draw inferences from the fact the family has been supported for many years and has failed to give a clear or credible account as to why that long-term support has suddenly ceased.
  2. The Council says it is obliged to decide whether it is satisfied a child is in need. The Council says over a series of interviews and enquiries Mrs B had the opportunity to provide full and candid disclosure of her family’s circumstances. That included past support, work, accommodation, expenditure, cash withdrawals and transfers of funds into the family’s bank account. The Council says Mrs B disclosed only limited information. The Council says it is entitled in the absence of clear and sufficient information to draw inferences.
  3. The Council says it is not obliged to come up with a plan for meeting the children’s needs unless and until it is satisfied a child is in need. The Council says it was not satisfied the children were in need and therefore it had no power or duty to interfere in the family’s domestic arrangements. The Council says it did not reach that decision based on any single factor. The Council says instead based on the material before it the Council could rationally decide the family was not behaving in the manner of the destitute family facing imminent eviction. The Council also noted the parents failed when invited to provide relevant information which justified the inference they had resources in cash or kind. In particular the Council records Mrs B declined to provide details of the people their bank statements recorded as having provided financial support.
  4. In terms of the assessment by the no recourse to public funds team the Council says that process has been approved by the courts. The Council says there is no requirement for destitution assessments to be undertaken by a social worker. The Council says safeguarding issues are dealt with by qualified social workers and the no recourse to public funds team have employed three dedicated social workers.

Details of the recordings made by the Council following Mrs B’s visits

Visit on 14 September 2016

  1. This note records the Council had given Mrs B a code change form to apply to lift the no recourse to public funds restriction when she presented in February and April 2016. The notes record Mrs B was to submit a change of code form to the Home Office to access mainstream benefits. The notes recorded the family’s income at around £550 per week. The notes recorded neither Mrs B nor her husband worked full-time but Mrs B did not give a clear explanation as to why she could not work full-time. It records the officer advised Mrs B to send off the change of code form. It recorded Mrs B said she had not paid any rent since she moved into the previous property in April 2014. It recorded Mrs B said the family had no credit card or savings account and their salaries were paid directly into their bank account. It recorded the officer’s checks later that day identified two bank accounts which Mrs B had not disclosed. The officer recorded no further action was required. That was because both Mrs B and her husband had employment and could obtain affordable accommodation in bed-and-breakfast if they could not find accommodation by the eviction date of 21 September. It also recorded the officer’s view the family could continue to seek support from their friends and family. It recorded the officer’s view that given Mrs B had not paid any rent for the properties she had lived at she must have a substantial amount of undisclosed savings. That was because the Council noted the family had worked legally and knew about the eviction. The Council calculated the family could have saved at least £3,000, based on the earnings they stated, as a deposit for accommodation in the private sector.

Visit on 19 September 2016

  1. The notes record Mrs B as asking for accommodation. Mrs B told the Council she would ask her friends for help with the first initial payment for accommodation as they had helped before. The notes record Mrs B did not respond when asked why she had not approached her friends for support before now as they were stating they were in need. The notes record Mrs B said the family could pay £850 a month without the need for a deposit. The Council gave Mrs B advice about obtaining employment within her remit rather than outside her skilled area. The Council asked Mrs B about why she or her husband had not increased their hours. Mrs B and her husband said they had been looking but Mrs B had to care for her children. The Council pointed out Mrs B’s husband could do that as he only works nights. The Council asked for evidence the family had applied for further employment since they knew of the eviction and neither Mrs B nor her husband could provide evidence of job searches. The Council asked Mrs B about what savings the family had accumulated since April 2016 when they knew they would be made homeless. The notes record neither Mrs B nor her husband answered. The notes record Mrs B could not remember the family’s outgoing expenses since April 2016 either.
  2. The Council looked at the income Mrs B and her husband had declared and calculated that as the family did not have to pay rent they could have saved for an affordable property. The notes record the officer’s view that as the bank statements showed more income than Mrs B was saying she earned this suggested she could get more working hours if she chose to. The notes also record Mrs B said the family had friends they could ask to help with a reasonable deposit and the first initial rent payment as they had done in the past. It recorded the Council’s view that as Mrs B could not explain how the family had spent their income since April 2016 the Council believed they had undisclosed savings. It also recorded that Mrs B paid £936 to nationalise her child. The officer noted it was not clear why the family would do that when Mrs B was alleging to be in need and facing homelessness.
  3. The notes record a social worker also spoke to Mrs B. The social worker’s notes record Mrs B said she had no concerns about the children and they were well looked after. Mrs B said her only concern was about accommodation and financial difficulties. It records Mrs B said she had asked for help from friends, family and the local church but no one was willing to help them. The notes show officers suggested it would be in the family’s interests for Mrs B and her husband to register with more agencies for employment or increase their working hours. The notes record the Council asked Mrs B why the family had allowed the situation to worsen before seeking help. Mrs B said the family only had a small amount of money which was not enough to pay for alternative accommodation. The Council also suggested Mrs B contact her friends, family or church as they might be willing to let the children stay while they sorted themselves out. The notes record Mrs B said she had nowhere to sleep with the children as she had nowhere to go. The notes go on to record the social worker said it was the parents responsibility to keep the children safe and ensure their well-being. The Council offered to instigate section 20 of the Act to allow Mrs B’s children to be temporarily accommodated by the Council while Mrs B sorted out accommodation. Mrs B said she would think about it.

Visit on 23 September 2016

  1. The record shows Mrs B said the family could support themselves including accommodation but needed help to find an affordable tenancy. It records the officer’s view the family had a large support network and were working and there was therefore no reason they should not be able to rent privately. It records Mrs B said she wanted to be directed to a reasonable estate agency. It records the family had previously stayed in a friend’s property or the pastor’s property free of charge and in 2008 lived in a rented room paid for by Mrs B’s brother in law. It recorded both Mrs B and her husband worked and they told the Council they could support their family. The Council asked Mrs B about spending money on her daughter’s naturalisation when she knew the family would be evicted. Mrs B said this was a priority and the family were saving to pay for her son’s naturalisation next year. Mrs B said the family had opened another bank account, noted as previously undisclosed, for that purpose. Mrs B said the pastor had given most of the money and generally the church had been supportive and she could still rely on the church. The note recorded Mrs B said she wanted to pay the council tax arrears for the property and the daily charge of £13.75 for the period since possession was granted. Mrs B said she was not sure whether applying for a change of code would be wise as she believed it could impact on her application for leave to remain. Mrs B said the family spent the first night since eviction in a police station but had since made arrangements with a friend. Mrs B confirmed the friend would let them stay over the weekend. The note recorded officers provided details of an estate agency as they were satisfied Mrs B could make her own temporary arrangements.

Analysis

  1. Mrs B says the Council was wrong to allow unqualified officers to carry out a section 17 assessment of the children. However, I have found no evidence to suggest the Council carried out such an assessment. Rather, I am satisfied Council officers decided there was no evidence the family was destitute and therefore it had no evidence to suggest the children were in need and needed a formal assessment. I am satisfied officers reached that conclusion after interviewing Mrs B about her circumstances and history. It is clear officers were satisfied Mrs B had lived in the country for some years without needing to pay rent and had received significant support from friends and her local church. The Council also took into account that Mrs B and her husband:
    • were working part-time and could increase their hours or seek additional employment elsewhere;
    • had a bank account with undisclosed funds in it;
    • had not explained what they had spent their income on given they did not have housing costs;
    • had made no attempt to have the Home Office restriction on access to public funds removed;
    • could not demonstrate they had sought alternative accommodation; and
    • had been housed by friends and church members for many years and there was no reason to presume that support could not continue.
  2. The Council decided the evidence it had suggested Mrs B and her husband were not behaving in the manner of a destitute family facing imminent eviction. The Council also decided Mrs B failed to provide relevant information to enable the Council to establish destitution or to show the family could not use their support network to house them, as they had for the previous 14 years.
  3. I recognise Mrs B strongly disagrees with the view reached by Council officers. However, I am satisfied Council officers reached that decision properly after considering the evidence and speaking to Mrs B on three separate occasions. The notes from those visits reflect the information on which the Council relied when reaching its decision the family had a support network and were therefore not likely to be street homeless. On that basis the Council decided a section 17 assessment of the children was not required as it was satisfied they would not be street homeless. Given all of that I could not say the Council failed to properly consider the issue. Clearly the Council has reached a decision with which Mrs B strongly disagrees. However, as I said in paragraph 2, it is not my role to comment on the merits of the Council’s decision unless there is evidence of fault in how it has been reached. I have found no evidence of fault here.
  4. In reaching that view, I am aware Mrs B points to the fact she had nowhere to sleep with her children on the night of 21 September when she contacted the Council’s out of hours team from the police station. The implication is because Mrs B did not have accommodation on that night the Council should have treated the children as children in need and carried out an assessment. However, the Council had a clear rationale for its decision and I do not consider mere presentation at the police station in the early hours changed that. In any event, to criticise the Council I would have to ignore the contact which took place on 23 September. On that date the Council again assessed Mrs B’s circumstances and concluded she was not destitute. That was the same conclusion as reached on her previous visits. I also note on the visit on 23 September Mrs B told the Council the family had stayed with a friend the previous night and could do so for at least the next few nights. The evidence Mrs B later presented from that friend suggests she did not ask him for help until the day after presenting at the police station. I consider all of that supports the Council’s conclusion Mrs B had access to a support network which would help her with accommodation and therefore the family were not destitute. I am also satisfied the Council offered to accommodate the children temporarily when Mrs B contacted it on 21 September to allow Mrs B to sort out accommodation. I am satisfied the only reason the Council did not provide accommodation to the children at that point is because Mrs B declined. In those circumstances I have no grounds to criticise the Council.
  5. I am aware Mrs B has disputed much of what is recorded in the Council’s notes from the various interviews. However, the Ombudsman cannot take evidence on oath. In this case I have relied on the documentary evidence provided by the Council as the notes were taken shortly after the various interviews took place.
  6. Mrs B points out she did not receive a formal decision from the Council until her representative got involved on 23 September 2016. Mrs B says because of that she was unaware of the Council’s reasoning for not providing help and therefore could not challenge that reasoning or provide additional evidence. I recognise the Council did not issue a formal decision until 23 September. It is also clear the Council did not provide that letter until after Mrs B’s legal representative got involved, although the Council says that is not what prompted it to issue the letter. Failure to provide Mrs B with a formal letter detailing the Council’s reasoning for not providing support between 14 September and 23 September is fault.
  7. I now have to go on to consider what injustice failure to provide the letter caused Mrs B. Mrs B’s representative says because she did not know details of the Council’s reasoning she could not provide additional evidence, as she did for later court proceedings. Mrs B’s representative suggests if Mrs B had been given an opportunity to address the Council’s concerns it is likely the Council would have changed its decision and provided accommodation. However, although the Council did not provide Mrs B with a formal decision I am satisfied the note of the visit on 14 September records the officer told Mrs B the reasons why the Council could not offer accommodation. I am therefore satisfied Mrs B would have had some indication of the Council’s reasoning at the meeting on 14 September. Nevertheless, the Council should have followed that up with a formal letter.
  8. There is, however, no evidence the Council told Mrs B about its reasoning when she visited again on 19 September. The notes from that visit record more information and more detailed reasoning from the Council about why it did not consider there was a need to provide accommodation. There is no evidence the Council shared the details of that reasoning with Mrs B until 23 September. Given Mrs B provided supporting evidence to the court during judicial review proceedings to address the Council’s areas of concern I consider it likely she would have provided that information earlier if the Council had given her a formal record of its decision. However, it is also clear from the court papers that despite the information Mrs B provided the Council continued to take the view that it should not provide accommodation. I therefore consider it unlikely, on the balance of probability, the Council would have offered Mrs B accommodation if it had given her an opportunity to provide evidence to address the Council’s concerns earlier. I therefore consider Mrs B’s injustice is limited to her frustration at not receiving a formal letter outlining the reasons for the Council’s decision and the time and trouble she had to go to pursuing her complaint. In those circumstances I consider an apology, rather than a financial remedy, appropriate.
  9. Mrs B says the Council’s approach of using the no access to public funds team to assess families is unlawful. It is not the Ombudsman’s role to determine legality. That is properly a matter for the courts. However, I note the court case referred to in paragraph 10 has already established the Council’s approach of splitting the assessment process is lawful. That legal case concluded it was open to the Council to conduct an initial assessment and decide whether the circumstances of the case justified a full assessment. I therefore cannot criticise the Council for adopting that approach in this case. As I said earlier, the Council would only go on to complete a section 17 assessment if it considered the children in need. As it did not reach that conclusion in this case and has properly explained its reasoning I have no grounds to criticise it.
  10. Nor can I criticise the Council for the way it dealt with Mrs B when she approached in February and April 2016. At that point Mrs B was not homeless. I am therefore satisfied the Council gave Mrs B appropriate advice, including the advice to apply to the Home Office to have the restriction on her access to public funds removed.
  11. Mrs B says the Council unreasonably refused to consider her complaint under its statutory complaints procedure. Mrs B says the Council instead referred her complaint to its customer services department. In this case though the Council declined to investigate the complaint. That was because Mrs B had submitted a judicial review application and the Council declined to investigate while there was an ongoing court case. That was also the Ombudsman’s position when Mrs B initially contacted us to make a complaint. I cannot criticise the Council for not investigating the complaint while a legal case was ongoing. I therefore do not consider Mrs B has suffered an injustice from the Council using the customer service complaints procedure, rather than the statutory complaints procedure. I therefore do not intend to pursue the point further.

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Agreed action

  1. Within one month of my decision the Council should:
    • apologise to Mrs B for delay providing her with a written decision detailing its reasoning before 23 September; and
    • send a memo to officers in the no recourse to public funds team reminding them of the need to issue formal written decisions when support is not provided.

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Final decision

  1. I have completed my investigation and found fault by the Council in part of the complaint which caused an injustice to Mrs B. Although Mrs B does not agree with my decision I am satisfied the action the Council will take is sufficient to remedy her injustice.

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Investigator's decision on behalf of the Ombudsman

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