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How to get round the s.17/s.20 debate.

By J

The housing/social services relationship is one of the “hot topics” in housing law at the moment and, before we come to R (on the application of A) v Coventry City Council [2009] EWHC 34 (Admin), a bit of background is needed.

A bit of background

There are two principle sections in the Children Act 1989 which are of interest to housing lawyers. Section 17 contains a power to provide a “range and level of services” to children “in need”. This can include money or accommodation. Section 20, by contrast, is a mandatory duty to provide accommodation for children “in need” who appear to the local social services authority to require accommodation as a result of, inter alia, being lost or abandoned or the person who usually provides accommodation being prevented from doing so.

The fact that one is a (broad) power and one a (narrow) duty is not the only differences between ss. 17 and 20. Persons accommodated under s.17 are – in general terms – ineligible for the various ‘leaving care’ support packages provided by local social services authorities, whilst those accommodated under s.20 are (again, in general terms), likely to benefit from a range of support services pursuant to the Children (Leaving Care) Act 2000.

There is a view amongst those who practice in this field that some local social services authorities try to use s.17, rather than s.20, to assist homeless children, due to potential long-term cost savings. I express no view on this, save to note that there are a number of reasons (some good, some not so good) why a local authority (and, indeed, a homeless child) might prefer to use s.17 as opposed to s.20. The cases on this point have tended to focus on the question of whether or not the child needed accommodation (s.20) or merely “help” with finding (or retaining) accommodation (s.17). See our note on G v Southwark, here, for more details.

The facts

In February 2007, “A”, then aged c.15 3/4  was apparently thrown out of his family home by the partner of his father. He went to stay with the mother of a friend who was already caring for his elder brother. He has remained there ever since, cared for (and funded) by the mother of his friend.

Proceedings were issued with a view to ensuring that A obtained financial support from Coventry City Council after his 16th birthday in line. A’s case was that he had been (or should have been) accommodated pursuant to s.20, and so was (or should be) entitled to the various support that came with that. Coventry CC contended that this was, in effect, a private fostering arrangement and hence fell outside the scope of s.20. The s.20 duty was said never to have arisen.

After a lengthy discussion of the relevant factual background, Deputy Judge Anthony Edwards-Stewart QC concluded that – on the facts – Coventry CC had allowed A and the mother of his friend to believe that they would provide financial support. In those circumstances, the law deemed the arrangement to be under s.20. In any event, Coventry CC could not properly have concluded that there was a private fostering arrangement. A’s father had taken no active steps in relation to his accommodation. A had merely been left in the care of another adult, with no provision made for his long-term well-being or funding arrangements. This was far too uncertain to amount to a private fostering arrangement.

It was declared that A had been accommodated pursuant to s.20 (the transcript says s.22, but I think that is a typo) and an order made for payment of the appropriate monies.

G v Southwark

There is a lengthy discussion of the decision in G v Southwark. You’ll remember that, in that case, Longmore LJ and Pill LJ had approved the “needs accommodation / help with accommodation” between ss.17 and 20. Rix LJ dissented and held that a child could be said to require “accommodation” even if that accommodation was then provided by a third party. The provision of accommodation by a third party did not absolve the local social services authority of the s.20 duty, rather, it demonstrated that s.20 was fulfilled.

The Deputy Judge favoured the approach taken by Rix LJ, although he accepted that he was bound to follow the majority judgment in G v Southwark.

The clever bit

One might have thought that this would bode well for Coventry. However, The Deputy Judge was able to side-step the accommodation / help with accommodation debate in G v Southwark by relying on London Borough of Southwark v D [2007] EWCA Civ 182 to find that failure to expressly refer to s.17 will – depending on the facts – allow the parties and the court to assume that s.20 was used:

“If the authority is facilitating a private arrangement, it must make it plain to the proposed foster parent that s/he must look to the parents or person with parental responsibility for financial support. The authority must explain that any financial assistance from public funds would be entirely a matter for the discretion of the local authority for the area in which the foster parent is living. Only on receipt of such information could the foster parent give informed consent to acceptance of the child under a private fostering agreement. If such matters are left unclear, there is a danger that the foster parent (and subsequently the court) will conclude that the local authority was acting under its statutory powers and duties and that the arrangement was not a private one at all” D at [49]

G v Southwark is in the Lords very shortly. Lets see what their Lordships make of this because, at the moment, the argument based on D appears to offer an attractive route around the decision in G v Southwark. Whether or not this is a good thing is a matter of debate – I, for example, think G v Southwark is rightly decided. NL, for example, disagrees and sides with Rix LJ. What is frustrating is that all of these social services/housing cases are turning on their own facts, rather than on any general statements of principle and a greater use of the argument in D will only encourage this trend. Of course, cases must be fought on their own facts and of course it would be wrong to have mechanical judgments which took no account of individual circumstances but it cannot be in the best interests of either vulnerable children or local social services authorities that there is confusion in this area of the law.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.



  1. Family Law Week blog: Loccal authority's housing duties to children - [...] authority's housing duties to children Interesting post on Nearly Legal about some recent case law on the s 17…

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