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.