Tag Archive for 'accommodation'

Long on principle, short on detail

Published
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NL
on 21/10/2009
in Community care, FLW case note and Housing law - All
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S (A Child), R (on the application of) v Plymouth City Council [2009] EWHC 1499 (Admin)

Not sure how we missed this one and thanks to the Legal Action housing updates for the elbow to the ribs.

This was a permission hearing on an application for judicial review of Plymouth Council’s handling of a child in need under s.17 Children Act 1989, specifically how accommodation needs were dealt with.

S was an 11 year old child who was autistic and had behavioural difficulties. He lived with his mother and brother. it was not in issue that he was a child in need for the purposes of the Act. The family lived in a two bed flat, which placed severe pressure on his mother and his 6 year old brother.

S.17(6) of the Children Act states:

The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and giving assistance in kind or, in exceptional circumstances, in cash.

Assessment of children in need under s.17 is shaped by the 2000 guidance “Framework for the assessment of children in need and their families”, and it is made clear that Local Authorities are to have regard to this guidance and that although not statutory in effect, it should be complied with “unless local circumstances indicate exceptional reasons which justify a variation”.

The document states that a core assessment must be carried out:
“… an in-depth assessment which addresses the central or most important aspects of the needs of a child and the capacity of his or her parents or caregivers to respond appropriately to these needs within the wider family and community context.” [chapter 3.11]

and the conclusion of an assessment should result in:

• an analysis of the needs of the child and the parenting capacity to respond appropriately to those needs within their family context;
• identification of whether and, if so, where intervention will be required to secure the wellbeing of the child or young person;
• a realistic plan of action (including services to be provided), detailing who has responsibility for action, a timetable and a process for review. [chapter 4.1]

Note the emphasis on a ‘realistic plan of action’.

A core assessment had not been carried out when judicial review proceedings were issued. Over the following year (!) prior to this permission hearing, a core assessment was produced by Plymouth. The Claimant maintained that the assessment did not contain a realistic course of action. Amongst issues such as respite care and identification of carers, was the problem of accommodation for the family.

Both Social Services and housing departments accepted that the family required a 3 bed property. The mother’s transfer application had been rised to band B priority from band C in a CBL scheme, but no suitable properties had become available on which the mother’s bid was successful. Private sector accommodation had been raised as an alternative by social services. The mother would lose her secure tenancy and her transfer status, effectively starting from scratch.

There was nothing unlawful about the way her transfer application was dealt with under the allocation scheme. However, Plymouth Social Services’ position on assistance with a private sector tenancy was that they were:

willing to assist [the mother] to secure three-bedroom accommodation in the private rented sector to the extent that they will provide financial assistance by giving her money for a deposit on a property and 1 month’s rent in advance. [The mother] will be entitled to housing benefit to assist her with the rent, but if her housing benefit is less than the contractual rent, the defendants will not fund the shortfall in rent on a continuing basis, because it is likely that she will be re-housed by the housing department, provided she actively pursues her transfer application, particularly if bids for flats and maisonettes and properties in a greater number of areas in Plymouth than she has currently considered.

Held:

34. Initially it seemed to me that what Ms Thornley says in those paragraphs goes as far as Plymouth City Council could reasonably be expected to go. They plainly feel that the mother ought soon to be able to obtain adequate housing through the housing department and, accordingly, have limited their offer of assistance to S to providing a deposit and 1 month’s rent in advance. They are not willing to bridge any gap between housing benefit and actual rent, because they take the view that the mother can adequately re-house herself and her children in council housing. But I have been persuaded by Mr Wise that what Ms Thornley says in those paragraphs does not, in the end, amount to a realistic plan of action, including services to be provided. It does not engage with specifics at all. It does not identify any sample property, or properties, that Plymouth City Council put forward as appropriate for the family in the private market. It does not, accordingly, engage with the actual cost of renting such a property, nor the difference between that cost and the housing benefit to which the mother is, or may be, entitled. In other words, it is long on principle but very short on detail.

35. It does seem to me that the local authority have got to be much more proactive in working together with the mother to see exactly what might be available in the private sector, what it would cost, the extent of housing benefit that the mother can obtain towards that cost and the extent, if any, to which Plymouth City Council ought to, and is willing to, bridge any difference. In short, the alternative of renting in the private sector with financial help from Plymouth City Council needs a great deal more exploration than has so far been done. It is only when Plymouth City Council, working no doubt in co-operation with the mother, have come up with a fully-costed and detailed alternative for renting in the private sector that they can be said to have actually produced a realistic plan of action in relation to accommodation.

Permission granted for JR for a declaration that the core assessments did not yet provide the required realistic course of action. The parties urged to go back to Plymouth and focus on sensible and realistic ways of helping S.

This is useful, albeit only a permission hearing, in focussing on the kind of practical detail and concern a core assessment needs to contain. It is clear that simply identifying possible courses of action and setting a fixed response (e.g. on aid with rent) is not sufficient – the issue is what constitutes a realistic course of action.

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Child 'requires accommodation'

Published
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NL
on 21/05/2009
in Community care, FLW case note and Housing law - All
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R (G) v Southwark [2009] UKHL 26 was the appeal to the House of Lords of this Court of Appeal judgment. At issue was whether Southwark could effectively avoid its s.20 Children Act duty to accommodate a homeless child by referral to the Housing Department by way of application under Part VII Housing Act 1996. The earlier post gives the factual background, but briefly G was 17 when he approached Southwark Social Services, after being thrown out of his family home and sofa surfing with friends. Southwark assessed him as having primary needs in housing and education, and suggested referrals to the HPU and to other agencies, including social services’ Family Resource Team. G was given hostel accommodation, which Southwark later asserted to be temporary acccommodation under Part VII HA 1996. G sought judicial review, which then went to the Court of Appeal, who upheld Southwark’s view, and thence to the Lords.

Southwark had argued that G did not require accommodation, but rather ‘help with accommodation’ because he would be eligible under Part VII HA 1996. In the Lords, Southwark’s submission, via Mr McGuire, was:

In deciding whether a child “requires accommodation” under section 20(1), the authority are entitled to take into account the other sources of accommodation which may be available to the child and conclude that he does not require social services accommodation at all. All he requires is help to find or acquire that other accommodation, under the authority’s general duty to provide services under section 17. He acknowledges that, before 2002, alternative sources of accommodation would not generally have included the homeless persons unit. Now that they do, however, the children’s authority are entitled to conclude that this will suffice, even if other services are also required, rather than the whole paraphernalia of becoming a “looked after” child. He stresses that section 20 should be read in the light of the local authority’s functions under in section 17, and prays in aid certain passages from the opinion of my noble and learned friend Lord Hope of Craighead, in R (G) v Barnet London Borough Council [2003] UKHL 57, [2004] 2 AC 208, at paras 81 and 100. [para 21].

G’s submission was simply that all the elements required by s.20(1) were met in this case. He therefore ‘required accommodation’ within the meaning of s.20(1) even if there was another way accommodation could be found for him.

The Secretary of State, intervening, said that the presumption must be that all lone children who meet the s.20(1) criteria must be accommodated by children’s services authorities “at least until their needs have been properly assessed and plans are in place to meet those needs” [para 20].

Baroness Hale’s lead opinion is very clear and, well, forthright.

It came as ’something of a surprise’ that the case had reached the Lords in the light of R (M) v Hammersmith and Fulham LBC [2008] UKHL 14. In that case the Lords had made it clear that when a child approached the housing authority for accommodation, they should be referred to children’s services for assessment under the Children Act. It had not been contemplated at that time that had M been assessed as falling under s.20(1) she might still have been referred back to the housing authority. As was said at para 4 of M v Fulham, the clear intention of the legislation was that chidren need more than a roof over their head and children’s services cannot avoid their responsibilities by passing them over to the housing authority. [Para 5].

The tone thus set, Baroness Hale points out that while children aged 16 & 17 were expressly included as having Part VII HA 1996 priority by SI 2002/2051, those children to whom a s.20 duty is owed and ‘relevant’ children who have been looked after by the LA are expressly excluded.

So, if a child is owed a s.20 duty, they are not eligible for Part VII purposes. The Children Act takes primacy over the Housing Act. The issue is, quite simply, what do the criteria in s.20(1) mean. As previous case law had shown, if a s.20 duty has arisen and the Council has provided accommodation, it cannot side step the duty by claiming to have acted under some other power [R(H) v Wandsworth BC [2007] EWHC 1082 (Admin); R(D) v Southwark LBC [2007] EWCA Civ 182; etc.]. In particular the LA can’t claimto have been acting under the general s.17(1) CA general duty. So it is only s.20 at issue here.

The case prayed in aid by Southwark, R(G) v Barnet, actually concerned accommodation for a child together with its mother. it was not in issue that the child was owed the s.20 duty, the question was did the duty extend to accommodating the family. The case actually highlights the primary duty owed to individuals under s.20 over the general duty to children and families in s.17. [para 25]

Granted, there may be some homeless 16 or 17 yo who are not owed a s.20 duty. But that is not the same as saying they are not owed a s.20 duty because they are or may be owed a HA 1996 duty. This is circular reasoning. A child who requires accommodation under s.20)1 is exclude from HA 1996 priority.They can’t be put back in to priority need by saying they do not require accommodation when clearly they do. [para 26].

It is not for the LA to decide that, because they do not like what the duty to accommodate involves or do not think it appropriate, they do not have to accommodate at all. R(A) v Coventry CC [2009] EWHC 34 (Admin) disapproved to the extent that it proposed reading into s.20(1) the words ‘under this section’ after requires accommodation. [para 27]. (our note on the case here).

S.20(1) involves a series of judgments, as set out in R(A) v Croydon LBC [2008] EWCA Civ 1445 at para 75:
1. Is the applicant a child?
2. Is the applicant a child in need?
3. Is he within the local authority’s area?
4. Does he appear to the LA to require accomodation?

But there may be cases where the child does have a home to go to, whether on his own or with family or friends, but needs help in getting there, or getting into it, or in having it made habitable or safe. This is the line between needing “help with accommodation” (not in itself a technical term) and needing “accommodation”. [para 28]

5. Is that need the result of:
a) there being no person who has parental responsibility.
b) his being lost or abandoned
c)the person caring for him being prevented from providing him with suitable accommodation or care. (This has a wide construction. Exceptions may include a 16 or 17 yo living independently, with a job and somewhere to live, without anyone caring for him, who then lost accommodation. This would not be s.20 but would be HA 1996 priority need).
6. What are the child’s wishes and feelings regarding the provision of accommodation?
7. What consideration (given age and understanding) should be given those wishes and feelings?
8. & 9. were not relevant here.

Every item in this list had been assessed in G’s favour by Southwark. Therefore the s.20 duty had arisen and Southwark could not side step it. This was enough to decide the appeal. [para 28].

The Secretary of State’s submissions were clear as to the result. But on s.17, while the Local Authority Circular LAC (2003) stressed that the ‘power to provide accommodation under s.17 will almost always concern children neding to be accommodated with their families’, it also said that ‘there may be cases where a lone child who needs help with accommodation, but does not need to be looked after, might appropriately be assisted under s.17′. But before deciding this, the LA should carry out an assessment which should first establish if the child met the s.20(1) criteria. The Circular noted that some ‘older asylum seeking children had refused to become looked after although the CA was their only means of support’. In these cases, the Circular suggested that although the S.20(1) duty might appeared to be triggered, the LA might judge him competent to look after himself and provide help with accommodation without making him a looked after child.

Baroness Hale makes clear that, while this specific example might not trigger a s.20 duty by the step by step analysis above, insofar as the Circular suggests that the LA might have a choice between s.17 and s.20 based on whether the child needs to be ‘looked after’, it is incorrect. An evaluative judgment may be involved, but not a discretion [para 31].

The SoS submissions that once assessment has been completed and rehabilitation with the family failed, a child’s long term interests might be best served by support to move to independent living, raised the prospect of the LA deciding that the child was no longer in need. But the whole purpose of the leaving care provisions was to ensure help with moving to independent living of the sort normally expected from families. LAs ’should be slow to conclude that a child was no longer “in need” because he did not need that help or because it could be provided in other ways. [para 32].

Children’s Authorities have the power, under s.27 CA 1989 to ask other authorities, including housing, for help in the exercise of their functions, and that help must be provided if not prejudicial to the asked authority’s functions. This does not mean passing the buck on responsibilities, but assistance with discharging its duties. A housing authority cold be asked to make available a certain amount of suitable accommodation. [para 33]

Appeal allowed. G was accommodated under s.20 and is a ‘relevant child’ for s.23A(2) CA 1989.

Congratulations to Counsel for G, Ian Wise & Azeem Suterwalla, and particularly to solicitor Oliver Studdert of Fisher Meredith for seeing this one all the way through.

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Avoiding s.20 duties to children?

Published
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NL
on 05/12/2008
in Community care, FLW case note and Housing law - All
. 1 Comment

I am strangely and unaccountably late with this one – I can only presume it was released late by Bailii and it was August anyway. But finally, here is R(M) v Barnet LBC [2008] EWHC 2354 (Admin), a judicial review on a decision to assist a 17 year old under s.17 Children Act 1989, rather than s.20, and thereby avoiding the continuing care and assistance duties that follow from s.20.

M had a difficult relation with her parents, particularly her father. She had repeatedly left the family home before. In 2006, she left home. There were unsubstantiated accusations of abuse. She presented to the London Refuge. Barnet carried out an assessment and had accommodated her since November 2006, under s.17 Children Act 1989 powers.

M applied for Judicial Review, on the basis that Barnet should have been acting under s.20. M claimed that: i) Barnet adopted a policy to avoid s.20 duties; and ii) that the decision to use s.17 powers in M’s case was wrong.

On i), M relied on a protocol document called Barnet Home Seekers: Childrens Panel, Protocol and Procedures, which solely addressed s.17. Barnet stated that this was not surprising as the document referred to procdure once a decision as to s.17 or s.20 duty had been made, and it was the s.17 document. Barnet produced a further document – a ‘route map’ for looking after children which described the ‘looked after child’ route. The Court accepted this a referring to s.20 duty. This ground failed.

On ii), M submitted that the decision was unlawful, on the basis of R (S) v London Borough of Sutton [2007] EWHC 1196 (Admin) and R (M) v Hammersmith and Fulham [2008] 1 WLR. The issue was whether the person caring for M was ‘prevented’ from providing suitable accommodation and care.

In R(S) v Sutton, Stanley Burnton J said, at para 40:

Prevention undoubtedly involves an objective test. It is not satisfied if the facts are only that child does not want to live with someone who is willing to provide suitable accommodation. But circumstances do arise where people are so incompatible that they simply cannot live together. According to Ms Gardner’s witness statement, J’s father was unable to offer her accommodation on her release because of her difficult relationship with his partner. The fact that J’s placement with her father in November 2005 failed so speedily supports the conclusion that on 11 November 2005 he could not provide accommodation for her. In these circumstances, section 20(1)(c) was satisfied, and Sutton was under the duty imposed by that subsection.

M argued that this applied to her situation.

Barnet raised G v Southwark [2008] EWCA Civ 877, (NL note here), in particular Longmore LJ’s statement that:

The truth is that Southwark have decided that G is a resourceful teenager who is capable of sourcing accommodation provided that he is given assistance to do so. That was a decision that was legally open to the local authority and it is not for this court (which has not even, unlike the local authority, seen G) to second-guess their evaluation of the position.

The Court held that the proper test was “whether there is anything irrational or perverse in the view that the Local Authority here arrived at as to whether their duty under section 20 was engaged”. On the evidence, there wasn’t – in particular given the repeated comments by M’s parents that she was welcome to return and that they were able to care for her. A late statement to the contrary by the parents did not apply to the period of the decision.

The application was refused and permission to appeal refused (with conditions on continuing to accommodate pending application for permission to appeal to the Court of Appeal).

I am so late on this one that application for permission to appeal has already been made to the Court of Appeal. One to watch for, then.

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Women's refuges and homelessness

Published
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NL
on 17/04/2008
in FLW case note, Homeless and Housing law - All
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Manchester City Council v Moran & Richards v Ipswich Borough Council [2008] EWCA Civ 378

This is a very important Court of Appeal judgment, which will have significant impact on Women’s Refuges and women fleeing domestic violence.

These were two appeals, conjoined, both featuring women whose stay at refuges had been ended following incidents and who faced findings of intentional homelessness on homeless applications as a result. The difference was that Moran had the decision as s.184 decision on application as homeless after leaving the refuge and the other, Richards, had been in the refuge after an application and acceptance of duty, with the refuge as temporary accommodation under s193 HA 1996, so duty was discharged on her making herself intentionally homeless.

In Manchester v Moran, Manchester were appealing a finding on s.204 appeal that the refuge was not accommodation (or accommodation in which it was reasonable to remain) for the purposes of s.193 HA 1996. In Ipswich v Richards, Richards was appealing a .s204 appeal finding that the refuge was accommodation in which it was reasonable for her to remain.

In both cases, if the refuge was not accommodation (or accommodation in which it was reasonable to remain), the findings of intentional homelessness would fall.

In general, local authorities have followed R v LB Ealing Ex p Sidhu (1982) 2 HLR 48 (Sidhu), in which the High Court found that a refuge could not be considered as accommodation for the purposes of the Housing (Homeless Persons) Act 1977, then in force. In addition, guidance from the Secretary of State issued in July 2006 suggests at Chap 8, para 8.34 that it should not be regarded as reasonable to continue to occupy such accommodation as women’s refuges in the medium and longer term; and at Chap 16, para 16.27, in a discussion of suitability (not reasonableness) that placement in a refuge should be a temporary expedient only for the minimum period necessary.

Broadly, the argument advanced by Moran and Richards updated Sidhu, so that a refuge could not be considered to be ‘accommodation’ for the purposes of s.175 and s.193 HA 1996; or if it was accommodation, it could not be accommodation that it was reasonable to continue to occupy. In addition, there were sound policy reasons for such a view. If a woman could not make a homeless application while accommodated in a refuge, the refuges would quickly silt up completely with women waiting on Part VI applications.

The Court of Appeal, in the sole judgment of Lord Justice Wilson, found that Sidhu could not be accommodated with the later  judgments in Puhlhofer v Hillingdon LBC [1986] AC 484 and R v Brent LBC ex p Awua [1996] 1 AC 55. Following the House of Lords in Puhlhofer, it was impossible not to consider a refuge to be accommodation for the purposes of s.175 HA 1996.  Puhlhofer took a very broad definition of accommodation, refusing a purposive view. (In fact Puhlhofer precipitated the introduction what is now s.175(3) HA 1996 – reasonable to continue to occupy).

Following Awua, the Court held that reasonable to occupy was not equivalent to ’settled’ accommodation. In addition refuges did not fall under any of the statutory exclusions from reasonable to occupy, and there was no order made by the Secretary of State excluding refuges pursuant to s.177(3)(a).

In any case, the nature of refuges had changed since 1982, and they could no longer be equate to short stay or emergency shelters.

The accommodation in the present cases was such that it was reasonable for the women to remain. There was no immediate threat of the termination of their licence. It was expected, as set out in the evidence of the WRA, that women would stay for months, even up to two years, while alternative permanent accommodation was being pursued. It was therefore accommodation that was reasonable for them to occupy.

Manchester’s appeal granted. Richards’ appeal dismisssed.

The Secretary of State’s guidance was wrong and should be reconsidered. If the government wished this situation to change, it would be a matter for statute – an order by the Secretary of State.

The Court was clear that a refuge would not always be considered as reasonable to continue to occupy. The Court set out a list of matters for homeless officers to address in assessing refuge accommodation for homeless applicants. I have added the full list at the end of this post. Clearly they will be of considerable importance for both housing officers and advisors.

(For complete geeks like me, there is an interesting discussion of the distinction between ‘reasonable’ (s.175) and ’suitable’ (s.206) at paras 30 & 31, but nothing turns on it here.)

This judgment places women’s refuges in a very difficult position indeed. It means that they will not be certain whether a woman that they take in will be able to make a homeless application will at the refuge. They will have to consider the list of factors set out in the judgment in each and every case, as what might be reasonable for one woman’s circumstances will not be for another woman. They will have to consider limiting the support that they offer. It effectively leaves them in an impossible position

As far as I can see, there are three options from here:

i) Appeal to the House of Lords. The prospects of success are not great, I would have thought. I suspect that the circumstances of Moran might be a better candidate for an appeal than that of Richards, but the key issues are identical, at least as long as one takes ‘accommodation’ in s.175 to mean the same as ‘accommodation’ in s.193, and I think we have to take that to be so.

ii) Secretary of State makes an order excluding refuges as ‘accommodation reasonable to occupy’. The simplest solution, and, given the SoS was an intervener in the appeal, maybe the most likely.

iii) Refuges and Councils struggle on with the ‘Moran guidelines’ as I shall christen them, as to whether a refuge is reasonable to occupy or not. A whole new swathe of s.204 appeals are born as the application of the guidelines is thrashed out.

The Guidelines – matters to be considered in enquiry under s.175(3) or s.191(1) Housing Act 1996 – are at paras 49 and 50:

49. The general matters which fall to be considered include:

(a) the size, type and quality of the accommodation made available to the woman, including the extent of her need to share its facilities;

(b) the terms of the agreement by which it is made available to her;

(c) her ability to afford it;

(d) the appropriateness of its location for her and her child (if any);

(e) the extent of its facilities for her child;

(f) its appropriateness for her and her child in the light of any particular characteristics (including as to health) which each may have;

(g) the length of time for which they have already occupied it;

(h) the state of their physical and emotional health while in occupation of it; and

(i) the length of time for which, unless accepted as homeless, they might expect to continue to occupy it.

50. The particular matters which additionally fall to be considered by virtue of the fact that the accommodation is a refuge include:

(a) the nature of the refuge;

(b) the scale of support which the refuge aspires to provide to the woman;

(c) in particular, whether reflected in the terms of the licence agreement, in its published material or otherwise, the length of the period for which the refuge expects her to remain in occupation of it;

(d) the length of the period for which women generally occupy it;

(e) the extent to which, during her occupation, the refuge has been full;

(f) any evidence that her occupation may have prevented, and in particular the extent of the risk that any continued occupation on her part may in the future prevent, the refuge from offering accommodation to another victim of domestic violence in an emergency;

(g) the extent to which any conditions of the licence agreement, by way, for example, of the prohibition of visitors or of dissemination of the address of the refuge, make it reasonable or otherwise for her, in the light of the length of her occupation to date, to continue to occupy it; and

(h) the extent of her need, and of her ability to accept, such physical and emotional support as the refuge may offer to her.


Jan Luba QC and Adam Fullwood, instructed by Shelter, Manchester, for Moran.

Martin Hodgson, instructed by Anthony Gold, for Richards.

Martin Chamberlain for the SoS.

Clive Freedman QC and Zoe Thompson for Manchester

James Findlay and Wayne Beglan for Ipswich

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Housing for children

Published
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NL
on 02/03/2008
in Community care, FLW case note and Housing law - All
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A couple of recent cases concerning local authorities’ duties under s.20 Childrens Act 1989

R (On The Application of M) (Fc) V London Borough of Hammersmith and Fulham Appellate Committee [2008] UKHL 14 concerns the varied responsibilities of Social Services and Housing depts. The duties under s.20 Childrens Act towards 16 – 18 year olds are more extensive than those under Housing Act 1996 homelessness provisions. In this case, the 17 year old presented to the housing dept. and was, eventually given temporary accommodation. What the House of Lords found ought to have happened was that, given that there was at least a question of her being a ‘child in need’, she should have been referred for a social services assessment, in line with Guidance. She wasn’t – instead being dealt with wholly by Housing.

Could this be taken to be being looked after under s.20 Childrens Act for the purposes of the continuing care and support under s.23C Childrens Act? This support is only available to those over 18 who have been in care or are a ‘relevant child’ by reason of s.20 care and accommodation having been given.

Baroness Hale says no. Although there are Court of Appeal precedents for taking a local authority’s accommodation of a child as s.20 accommodation, whatever the authority said it was doing, these all only applied to other accommodation by social services departments (Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181; H v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), (2007) 10 CCLR 441; R (S) v Sutton London Borough Council [2007] EWCA Civ 790; and R (L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin).).

What had happened here was a legitimate accommodation of the child under HA 1996, s.188., which could not be deemed to be Childrens Act accommodation, as it was neither unlawful nor a deliberate attempt to avoid a s.20 duty.

Moreover, it is only in unitary authorities that a social service dept and a housing dept are part of the same authority. Elsewhere, a District Council deals with housing and would refer to the County Council social services. One could not hold that these were the same authority, and the situation should not be different between unitary and non-unitary authorities. At para 44:

44.  [...] It is one thing to hold that the actions of a local children’s services authority should be categorised according to what they should have done rather than what they may have thought, whether at the time or in retrospect, that they were doing. It is another thing entirely to hold that the actions of a local housing authority should be categorised according to what the children’s services authority should have done had the case been drawn to their attention at the time. In all of the above cases, the children’s services authority did something as a result of which the child was provided with accommodation. The question was what they had done. 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. Once again, had this been a non-metropolitan authority, the housing authority could not have provided accommodation under section 20 and the social services authority could not have provided interim accommodation under section 188. The position cannot be different as between the unitary and the non-unitary authorities.

Whilst on the Childrens Act 1989,  G, R (on the application of) v London Borough of Southwark [2007] EWCA Civ 1506  – permission given to appeal the Judicial Review on the issue of how far a social services assessment is a finding of fact capable of giving rise to a s.20 duty. In this case the Authority does not formally accept the assessment and maintains that only a limited duty under the Housing Act – to assist in finding accommodation – is engaged.

The full hearing should have taken place by now, so the judgment is hopefully imminent.

Worth noting that the Court was prepared to accept an undertaking to accommodate pending trial, without prejudice, by the local authority. The Court was not willing to make an interim order to accommodate, for reasons based apparently on a lack of co-operation from the applicant.

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