Barrister Steve Broach looks at a case which shows why local authority children's services create legal risks by taking a hands-off approach to supporting disabled children

By Steve Broach

One of the key themes of the recent case law on disabled children is the requirement for social workers to take a proactive approach to safeguarding and promoting children’s welfare. 

This obligation was strongly emphasised in R (KS and AM) v LB Haringey [2018] EWHC 587 (Admin).  The claim was brought by a mother of two children with significant physical and mental health difficulties and by her daughter, a girl aged six at the time of the judgment with a diagnosis of autism.  The family were living in a two-bedroom property on the first floor of a block of flats.  They argued that the property was dangerous for the autistic child, including because of the risk of falling from two outside balconies and windows. 

The family applied for alternative housing, relying on their health- and disability-related needs.  Children’s services produced a child and family assessment, which stated that the social worker was ‘very concerned that the home is…a safety risk’.  It was also recognised that the living arrangements were having a negative impact on the entire family.  However, it was said that there were no safeguarding concerns because the parents were ‘taking every step to meet their children’s needs by keeping them safe’. 

No safeguarding concerns

Through their assessment, children’s services made a formal request for assistance from the housing department.  The case was then closed to children’s services as there were said to be no safeguarding concerns. 

The housing department decided not to increase the family’s priority under the housing allocation scheme.  After solicitors’ letters were sent, the housing department obtained a report from a Dr Keen, who concluded that the property was ‘less than ideal’ but there was not a serious medical need to relocate.  He agreed that a ground-floor property would be optimum but that ‘given a fall from a first floor is unlikely to be fatal, and that availability of ground-floor properties may be so scarce as to potentially delay a relocation, then I think that a first floor property is an acceptable alternative’.  The judge criticised Dr Keen’s report in several respects, noting that he had not indicated ‘what injuries he considers it likely that a 6 year old child might sustain falling from a first floor flat…and what level of injuries he considers to be an acceptable risk’. 

The judge found the first-floor balconies posed a very real risk to the child’s well-being and that, despite what Dr Keen had said, a fall from a balcony would cause at the very least serious injury and possibly death.  The level of parental supervision required for the child was not a ‘realistic burden’ for the mother, taking account of her own needs.  Although children’s services had requested co-operation from housing, this request had not been fulfilled.  As a consequence the family had fallen between children’s services and housing without any prospect of being rehoused. 

Irrational and unlawful

Importantly, the judge held that it was not sufficient for children’s services to refer the matter to housing and then close the file.  The duty on children’s services was ongoing, underpinned by the obligation in section 17 of the Children Act 1989 and section 11 of the Children Act 2004 to safeguard and promote the welfare of a child in need.  It was irrational and unlawful for children’s services not to have continued their involvement with the family. 

Overall, the judge held that it was the gap between what children’s services had clearly identified as a need that required addressing and the failure of children’s services and housing to address that identified risk that led to a finding that the local authority had acted irrationally and unlawfully.  Moreover, there was no evidence of consideration of the need to safeguard and promote the welfare of the children in the decision making. 

The judgment in KS makes crystal clear the ongoing nature of the obligations on children’s services where a disabled child’s housing situation (or indeed any other environmental factor) is impacting on their welfare.  A ‘hands off’ approach by social workers and their managers is very likely to result in a breach section 11 of the Children Act 2004, among other statutory duties. 

The thrust of the statutory scheme is that social workers must take a proactive approach to ensuring that the needs of disabled children are met.  Detriment to children’s welfare needs to be looked at more broadly than narrow ‘safeguarding’ concerns.  The fundamental message from this judgment is that all parts of local authorities need to work together to safeguard and promote children’s welfare.  It is not acceptable for one part of a local authority to ‘pass the buck’ to another part where this leaves important needs unmet for a child or young person. 

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