Social care obligations to Travellers

From the Local Government Lawyer

Jonathan Auburn and Benjamin Tankel consider the issues raised by a recent High Court ruling on the social care obligations of councils to Travellers.

Much of the community care legislation is premised on the assumption that service users live fairly sedentary lives. The legislation was not drafted with Travellers in mind. If Travellers families continually move around different local authority areas, who is responsible for providing community care needs?

Facts

In R (J) v Worcestershire CC [2013] EWHC 3845 (Admin) the claimant was the child of a travelling, fairground, family. He had Downs Syndrome and was assessed by Worcestershire under s.17 CA 1989 as having a wide range of needs requiring provision from the local authority.

The claimant’s father wanted the claimant’s funding to “travel” with the family from place to place, so that for example he could purchase the designated amount of support in whatever authority area he happened to be within England and Wales, i.e. within the territorial reach of the Children Act. The authority denied that it had the power to make provision for the family during the time that it was out of county borders travelling from fair to fair.

The court was thus called upon to determine the geographical reach of s.17 CA 1989 in circumstances where a family is travelling, voluntarily, outside of county boundaries.

Judgment

The argument turned on the statutory construction of s.17 CA 1989. The local authority tried to spell out from its precise wording a restriction on the power to provide services under that section where a family was travelling voluntarily outside of its area. The judge rejected that argument. In doing so, he pointed amongst other things to the Working Together guidance, with its many references to the need to establish an over-arching framework.

The judge considered the old case of R (Stewart) v LB Wandsworth [2001] EWHC 709 (Admin), which held that the duty to assess a child under s.17 CA 1989 arises in relation to a child who was physically present in a local authority’s area. But he held that the connection between physical presence and a local authority’s duties applied only at the assessment stage. The duty to provide services, by contrast, was geographically unlimited, at least in England and Wales.

Comment

The case raises a problem of clear wider importance, for which there is no obvious answer. The reality is that the legislation was not written with this issue in mind, and does not properly accommodate it. Worcestershire has applied for permission to appeal and it would be surprising if permission was not granted.

The Administrative Court judgment is thin on reasoning and may not withstand the scrutiny of the Court of Appeal. The reality is that section 17 apportions responsibility between local authorities using the simple and clear test of physical presence. The correct answer for Traveller communities is probably that, unless section 17 is amended, a number of local authorities have responsibility throughout the year, and those authorities need to co-ordinate between themselves to properly provide services to children in need within such communities.

However that may be seen as an inconvenient and unsatisfactory outcome. The Court of Appeal may be tempted to find that local authorities have the power, and in appropriate circumstances a duty, to fund services even when a family is travelling outside county boundaries, irrespective of whether this truly fits with the words of section 17.

Jonathan Auburn and Benjamin Tankel are barristers at 39 Essex Street. Jonathan is presenting a session on the Care Bill and changes to adult social care at the Weekend School in York on 5 April.