Joshua Swirsky acts for local authority whose criminal investigation into person who lied to obtain s.17 Children Act support found to be lawful

March 5, 2021

Joshua Swirsky acted for the local authority that successfully defended judicial review proceedings into its decision to launch a fraud investigation into someone who lied to obtain accommodation under s.17 Children Act 1989.

What does the case mean for local authorities?

The case is important because it reaffirms the right of a local authority in most circumstances to carry out an investigation before it makes a decision whether to commence a prosecution under s222 of the Local Government Act 1972.

How does the case affect claimants?

The case is significant because it stresses the need for a claimant to show that they have some identifiable interest in the remedy sought to have standing to bring judicial review proceedings. Consequently, although this was a permission application, Chamberlain J gave leave for his judgment to be cited.

Background to the case

The claimants were a woman who was an overstayer with no recourse to public funds who had been in the UK since 2010 and her son who was born in 2019. In 2020 the woman approached the London Borough of Croydon saying that she and her son would be destitute unless they received assistance under the Children Act 1989.

She gave the local authority a false address and false details of being excluded. The local authority carried out a Human Rights Act 1998 assessment and concluded on the information known that the family was destitute notwithstanding the lie. As a result, s17 accommodation was provided with the proviso that the local authority would review the situation in the light of any further information.

The claimant argued that the assessment concluding she should be accommodated with her son under s17 meant the local authority could not have either a reasonable belief that its fraud investigation would lead to a prosecution or that there was a realistic prospect of a prosecution. This was the test identified in R (Qualter) v Crown Court at Preston [2020] 1 WLR 1073 at [71] for a local authority pursuing a criminal investigation under s1 of the Localism Act 2011 or s111 of the Local Government Act 1972. Therefore she commenced judicial review proceedings.

In addition to this argument relating to the investigation, the claimants also challenged 3 aspects of the local authority’s investigatory procedures:

  • the fact that Croydon might (although this did not apply in the claimants’ case) consider the fact that a claimant had refused to be interviewed under caution in their s17 assessment
  • that there was a potential exchange of information between the children’s services team conducting the assessment and the fraud investigation team yet there were no proper safeguards, as would be required under PACE, for the interviews carried out by the children’s services department, and
  • that the local authority gave out a leaflet that was potentially misleading, although the claimants were not misled by it.

Goose J having refused permission, the claimants renewed their application for permission orally.

Chamberlain J held, refusing permission, that the claimants’ primary case was unarguable. No decision had been made as to a prosecution as yet. The fact that the local authority had given the claimants the benefit of the doubt regarding the assessment did not mean that it had no reasonable belief that a prosecution could take place.

The judge also held, applying his own judgment in JS v Secretary of State [2021] EWHC 234 Admin, that the claimants lacked standing to challenge the potential consideration of a refusal to be interviewed and the leaflet as neither had impacted on the claimant mother. Although Chamberlain J accepted that the claimant mother had standing to raise the issue of a potential lack of PACE safeguards, he held that the proper forum for challenging evidence that had been unfairly obtained was the trial judge or bench in criminal proceedings.

Anna Dannreuther helped draft the summary grounds for resistance.