ISSUE: 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?
R (J) v Worcestershire CC  EWHC 3845 (Admin FACTS: 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 LA. 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 LA 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  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 an LA’s area. But he held that the connection between physical presence and an LA’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 LAs 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.