High Court finds local authority breached Children Act 1989 for failing to carry out lawful assessment of autistic child

Monday 31 July 2017

The High Court has found that Lambeth London Borough Council failed to carry out a sufficiently wide, statutory guidance-compliant analysis when deciding not to treat and autistic child as a child in need for the purposes of the Children Act 1989 s.17. Gráinne Mellon represented the children in this case, instructed by Alex McMahon and Elma Tavares of Osbornes Solicitors.

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In this case, two children (C and H) applied for judicial review of the defendant local authority’s assessment that they were neither destitute nor otherwise 'in need’ for the purposes of the Children Act 1999 s.17.

While the High Court found the assessment itself was fairly conducted, in relation to the manner in which adverse inferences were put to the children’s mother as to the circumstances of her destitution by the local authority, it found that the local authority’s treatment of the 10-year-old boy in the case (C) was unlawful.

The local authority’s position was they were not obliged to re-assess C when he received a formal diagnosis of autism, asserting that the issue of autism had already been considered in the assessment and that the simple fact of a diagnosis would not make any difference to his needs. The local authority asserted that although C was a child in need, he did not require any services or support.

Mrs Justice Cheema-Grubb however found it was “impossible” to see how the assessment conducted amounted to a sufficiently wide, statutory guidance-compliant, analysis of C's needs as an autistic child. Having accepted that C was a 'child in need', the local authority failed to determine whether, if services were not provided to C, he would, as a consequence, be able to maintain reasonable levels of health and development or whether these would be significantly impaired.

While the status of being 'in need’ under the broad definition of 'disabled’ in s.17 did not of itself give rise to an obligation to provide s.17 support, it required the local authority to make a rational decision as to what, if any, support was necessary and appropriate to meet the child's needs.

The judgment is an important reiteration of the necessity of comprehensive, child-focused and statutory compliant assessments of children in need, including disabled children. It also highlights the importance of local authorities properly considering requests for re-assessments in light of updated evidence, including medical evidence.

Gráinne Mellon is a member of the public law and community care teams at Garden Court Chambers. She was instructed by Alex McMahon and Elma Tavares of Osbornes Solicitors.

The full judgment is available: R (on the application of AC and SH) v London Borough of Lambeth Council [2017] EWHC 1796 (Admin) Case NO: CO/84/2017

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