29/07/2008

Children Act – 'requires accommodation'

This is a significant case on whether Social Services or Housing Departments have a duty to accommodate a homeless child and whether a s.20 Children Act duty arises.

G, R (on the application of) v London Borough of Southwark [2008] EWCA Civ 877 was a case in which a 17 year old child, G, who was initially living with his mother following a successful asylum application, could no longer stay at that home. He presented to Southwark Social Services and after assessment, was referred to the HPU for accommodation under Part VII.

The issue in the judicial review and in this subsequent Court of Appeal hearing was the validity and meaning of the distinction between ‘requires accommodation’ and ‘requires help with accommodation’ as set out in the Circular LAC (2003) 13 as guidance on s.17 and s.20 of Children Act 1989 as amended.

Briefly, the facts were that Southwark performed a s.17 assessment (under threat of JR by Fisher Meredith) and concluded that G was in need of help with accommodation, not requiring accommodation under s.20. He would therefore be satisfactorily aided by Part VII homelessness procedures by the housing department. G sought Judicial Review of this decision. The JR application was effectively on the basis that a child who fell under s.20(1)(c), a G did, was owed the s.20 accommodation duty. That claim failed on the basis that Southwark had assessed and their evaluation was that G did not ‘require accommodation’, Simon J citing the 2003 Circular specifically. G also sought at hearing to raise the rationality of the decision, but this was refused permission. G appealed.

At appeal, G argued that

i) the assessment on its face showed that G did “require accommodation”;
ii) it was accordingly unlawful for Children’s Services to decide that he did not require accommodation but only “help with accommodation”;
iii) in any event there was no warrant for drawing any distinction between requiring accommodation and requiring help with accommodation. The only proper distinction was between a child who required accommodation because he did not have accommodation and a child who did not require accommodation because he already had it. [para 15]

In a split decision, the majority of the Court of Appeal decided that the 2003 Circular was lawful. Although s.20 Children Act did not draw an express distinction between ‘help’ and ‘requiring’, s.17(6) enabled provision of accommodation for children that was not under s.20, thus presupposing that not every child, not even every child who meets s.20(1) criterea must require accommodation under s.20. H, Barhanu and B v Wandsworth Hackney and Islington [2007] 2 FLR 822, 839 approved, with the emphasis that:

a local authority should decide whether the child requires to be provided with accommodation or merely needs ‘help with’ accommodation without regard to the implication of his being or not being a looked-after child. [para 23]

That there was a referral to the HPU did not equate to accommodation being required. In the decision letter, the HPU was one agency amongst others that would be addressing G’s needs and it may not be the HPU providing accommodation [This is not a very satisfactory argument at all, as far as I understand what is meant, which is not easy.]

For these reasons there is no challenge to the rationality of Southwark’s decision and the appealed dismissed. This was the majority judgment of LJ Longmore and LJ Pill.

LJ Rix held the opposite view strongly [paras 75-77]. I quote at length, because it strikes me as the more accurate judgment:

I regret that I am therefore unable to see the matter as Longmore LJ and Pill LJ see it. If one addresses the decision letter or the arguments and submissions made by or on behalf of Southwark, it seems to me to be plain that Southwark has attempted to say that it appears to it that G does not “require” accommodation because it can be provided to him by the housing department. It is only in such circumstances that what is said to be needed by G is “help with accommodation” rather than the provision of accommodation itself. It has in truth been recognised that G requires accommodation, but because it is said that that can be provided by the housing department, therefore it is said that all that G needs from the children’s services department is “help” in referring him to the HPU. However, that is, for all the reasons discussed in the jurisprudence which in my judgment is clearly helpful to G, either a side-stepping of Southwark’s obligations, or perhaps proceeds from a lack of understanding about their obligations. For instance, the argument has been addressed that the Housing Act regime takes precedence over the Children Act regime. That, however, is in my judgment incorrect, as seems plain on the wording and history of the statutes themselves, but has in any event been confirmed by Baroness Hale in Hammersmith and Fulham. Moreover, in Wandsworth, Hackney and Islington Holman J, applying the analysis in R v. Barnet, has demonstrated that, where it applies, the section 20(1) specific duty takes precedence over the general powers or duties in section 17.

It appears to me that Longmore LJ has come to a different conclusion because he regards the local authority as having a broad discretion, for the purposes of section 20(1) and the question whether or not the child “appears to them to require accommodation”, of deciding not so much that question but rather the broader one of whether or not the child appears to them to be in need of being “looked after”: see paragraphs 27/28 above. This ties in with passages in the LAC 13 guidance and in Mr Brims’ assessment to which prominence has understandably been given at paragraphs 4, 19 and 25 above. Therefore, it appears to be suggested that in the case of a resourceful teenager of 17, his need for accommodation, however genuine it appears to be for the purposes of the three situations provided for in section 20(1), can be dealt with merely by providing “help” towards the acquisition of accommodation provided by the housing department under the Housing Act regime. Thus, it is said, Southwark’s view of the matter, that “help” is all that is needed, not “accommodation” itself, is a legitimate response.

In my respectful judgment, however, that is not the case. The test under section 20(1) is not the broad test of whether the child in question needs to be “looked after”, but the much narrower test of whether the child appears to require accommodation as a result of finding himself alone in any of the three situations set out in that sub-section. The need for accommodation in those settings is the test for taking the child into the looked after system. In this respect section 20(1) can be compared, for instance, with section 20(3), where the local authority has a somewhat wider discretion (“whose welfare the authority consider is likely to be prejudiced”). Similarly, section 20(4) gives to the local authority a discretion (together with a power rather than a duty) to provide accommodation “if they consider that to do so would safeguard or promote the child’s welfare”. In neither of those sub-sections, however, is it a statutory ingredient of the local authority’s powers or duties that the child should have found himself alone (to gloss thus the effect of the three triggering events under sub-section (1)). In Wandsworth, Hackney and Islington Holman J rejected the argument: it was essentially the argument addressed in the Wandsworth case itself (at para 53), but rejected; it was also an argument sought to be supported by reliance on a passage in the LAC 13 guidance quoted by Holman J at para 63 but commented on by him adversely at para 64 of his judgment (see at para. 68 above).

I would have to say I’m with LJ Rix on this one. Even if one accepts the existence of a ‘requires’ v ‘help with’ accommodation distinction, neither LJs Longmore or Pill deal with what the distinction might actually mean in practice, aside from some references to Southwark’s report discussing G’s ‘resourcefulness’. After all, if the decision is to be made ‘without regard to the implications of being or not being a looked after child’ then having identified housing as a primary need in the assessment pretty much sorts the matter for s.20, but apparently not…

From the account of the pleadings, it seems as if LJs Longmore and Pill had restricted the issue that they were prepared to consider unduly – to an appeal on permission for JR on grounds of irrationality – and having reached the view that Southwark’s decision was not unlawful apparently decide that it was not irrational for that same reason [para 28]. LJ Rix sees the appeal as on the issue of whether accommodation should have been provided under s.20 generally.

I hope Fisher Meredith can take this one to the Lords. It is a messy judgment that leaves Local Authorities at liberty to avoid s.20 accommodation duty by referral to the HPU and a Part VII Housing Act 1996 duty.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

12 Comments

  1. house

    Getting social services to do anything is hard enough.

    Let’s hope the referral doesn’t take so long that the 17 year old has turned 18 by the time the HPU gets it!

    It’s also an area of law where I find getting specialist help for the client to be very difficult indeed.

    It’s rather late and I’m awful at the Children’s Act but does this mean that a 17 year old could be placed by the HPU who then following a joint assessment by the social services department could be told by the social services department that despite being a child in need they would have only needed ‘help’ in finding accommodation which they now have so no sec 20 duty and all that goes with it is owed to them?

    Would seem rather odd if that was the case.

    Reply
  2. J

    @house – yes. According to the majority of the CA, once someone is assessed as being “in need” the next question is “what are they in need of?” If it is accomodation, then s.20 must be used. If it is something else (i.e. mere assistance with accomodation, educational support etc) then s.17 can be used. Despite some misgivings, I can see the logic of this. It is important to remember that s.17 can be used to provide a wide range of services and support. It is not limited to the provision of housing (indeed, as initialy enacted, s.17 didn’t let a LA provide housing at all).

    Reply
  3. housinganger

    Cool thanks. House.

    It’s an interesting area but my brain can only cope with so many areas!

    Reply
  4. Dishan

    Can I ask why people are not talking about the responsibility of the parent or PR holders? Unless I am mistaken, there does not seem to be any legal reasons as to why this 16 year old cannot live at home?
    I work for social services and we have many young people and children who are being abused and struggle to find accomodation for them – to be honest i feel these are vulnerable children.

    Can i ask how people, would feel about charging/contributing the parent/s for local authority accomodation? This has been used succesfully in come local authorities. I would only suggest this is there is no risk to the child/YP living at home.

    I look forward to your response

    Reply
  5. Nearly Legal

    Dishan. I don’t see how you can draw that conclusion from the case report. There simply aren’t enough facts given about the situation. I’m more than a little surprised that as someone in social services you are happy to jump to a conclusion, though.

    Reply
  6. J

    G v Southwark will be heard by the Lords on 28/29 Jan 2009

    Reply
  7. R

    Any further news on this at the Lords?

    Reply
    • NL

      It can take a while to get the opinions. We’ll have a report as soon as they are handed down.

      Reply
      • J

        It still hasn’t been argued. It got adjourned to March 09.

        Reply
        • R

          Hi guys
          Wondered if anyone has heard anything further about this yet?
          Many Thanks

        • chief

          Judgment due out on Wednesday morning.

  8. R

    Thanks for that – will keep an eye out for that!

    Reply

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