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Section 17 assessments and procedural fairness

Since R (MN) v Hackney [2013] EWHC 1205 the drawing of adverse inferences from non-disclosure of information has been a frequent refrain for local authorities assessing whether a child's family is destitute and in need of accommodation.  In R (O)  v Lambeth [2016] EWHC 937 (Admin) , Helen Mountfield QC pointed out that such inferences could only properly be drawn (a) after a local authority had conducted its sufficiently diligent enquiries and (b) as a matter of procedural fairness, only if the inference or concern of the authority has been put to the family so as to offer an opportunity to respond.  Some may consider the latter to be a particularly important point, particularly those who feel that cash-strapped local authorities all to readily rely on non-disclosure of information to make a finding that no support is needed.  We now have an example of the procedural fairness point in action.  In R (S and J) v Haringey [2016] EWHC 2692 (Admin) the local authority had placed reliance on a failure of the applicant to provide evidence of how the applicant had paid her rent, and she had not provided wage slips.  The local authority had not, however, made specific requests for that information and had not given her opportunity to respond to the adverse inference drawn.  That was procedurally unfair, and the assessment was quashed.

"107. Concerns about the lack of information, in particular on how rent was paid in the past, and in relation to JB's wages were not put to her before adverse inferences were drawn. In my judgment that was a procedural deficiency which caused unfairness to JB and to the Claimants. 108. That procedural deficiency which caused unfairness to JB and to the Claimants was an error of law."


children act 1989, communitycare, community care & health