In R. (R) v Croydon LBC, February 10, 2012, Administrative Court [not on bailii - taken from a lawtel note] the Administrative Court was asked to determine whether the applicant was a former relevant child for the purposes of s.23C Children Act 1989.
The applicant was an Afghan national. Upon arriving in the UK he made an asylum application and claimed he was 15 years old. The UK Border Agency did not accept that was his age and referrred him to Croydon for their social services department to carry out an assessment as to his age. Croydon, after assessining the applicant, decided he wasn’t 15 and that he was in fact over 18. Accordingly, they referred him back to the UK Border Agency who provided him with accommodation and assistance under Immigration Act 1999 up until his 18th birthday.
On a judicial review the applicant succeeded in having Croydon’s age assessment quashed and he also obtained a declaration that at the date of his claim for asylum he was 15 years of age. However, by the time of this decision the applicant had turned 18 and Croydon refused to accommodate the applicant on the basis that he was no longer a child in need – for the purposes of s.20 – and, as he had not been accommodated by Croydon for a sufficient time before he turned 18, nor was he a relevant child.
The applicant therefore judicially reviewed Croydon again, this time arguing that the accommodation provided by the UKBA should be treated as being provided by the local authority under s.20, which would ensure that he met the requirements to become a former relevant child.
The High Court decided that the fact the accommodation had been provided by the UKBA did not mean that it could not be deemed to have been provided by the local authority and, in the circumstances, it was proper to deem that it had been provided by Croydon under s.20. It followed that the applicant was a former relevant child.
While this might seem like a fair result, some of you might be thinking, hang on a second, I seem to recall a few years ago the House of Lords decided something else. The case you are thinking of is M v Hammersmith & Fulham LBC  UKHL 14,  1 WLR 535. In that case the applicant had been housed by the authority’s housing department under the Housing Act 1996 rather than by social services under s.20. At no point was M referred to the social services department for an assessment until M was over 18. Despite deciding that the failure to refer M to its social services department was wholly unlawful, Baroness Hale never the less said this:
“… In hindsight, perhaps we can all agree on what ought to have happened. But the claim is that we should treat what ought to have happened as if it had actually happened. The claim is for the extra help and support available to former relevant children, even after they reach the age of 18, under section 23C of the 1989 Act. To be a relevant child, one must first have been an eligible child: section 23A(1) . To be an eligible child one must have been “looked after” by a local authority for the requisite period of time: Schedule 2, paragraph 19B(1) (as inserted) and Leaving Care Regulations . Who then is a “looked after” child? As M was never a child in care, the question is whether she was accommodated in the exercise of the local authority’s social services functions, and specifically their functions under section 20 of the 1989 Act. Essentially the argument is that the local authority were in fact acting under section 20 when they thought they were acting under section 188 of the 1996 Act.
… In this case, there is no evidence that the children’s services authority did anything at all. It is impossible to read the words
“a child who is … provided with accommodation by the authority in the exercise of any functions … which are social services functions within the meaning of the Local Authority Social Services Act 1970 …”
to include a child who has not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority.”
In the recent case of R (TG) v Lambeth LBC  EWCA Civ 526, the Court of Appeal managed to get round this by deciding that an applicant who had been provided with accommodation by its housing department under Housing Act 1996, was deemed to have been accommodated by the authority’s social services department because he had been referred to the housing department by a social worker seconded to the authority’s youth offending team. He had therefore been drawn to the attention of the local social services authority and the authority had also provided him with accommodation.
That of course was a case in which the authority had actually accommodated the applicant (and there is a case load of authority for the proposition that where an authority says it is accommodating under a paritcular statutory provision it can be deemed to be accommodating under s.20).
However, this is a case where the applicant has been drawn to the attention of the authority’s social services department, but has never actually been accommodated by the authority. I’d be fascinated to know how the High Court managed to construe “accommodated by the authority” to mean “accommodated by the UKBA”.
Does anyone have any more information on this that they might be willing to share in advance of the transcript being transcribed? If it stands up, this will be a really useful decision.