The Court of Appeal has – today – given judgment in R (Liverpool CC) v London Borough of Hillingdon and Ayan Khan (interested party) [2009] EWCA Civ 1702, a case concerning two local authorities who were in dispute over which one of them should be providing services to Ayan Khan (“AK”). It is probably more of a Children Act 1989 case than a pure housing case, which is why we only covered it briefly earlier.

AK was a Pakistani national. On 8 April 2008 he arrived in the UK illegally and under a false passport. He claimed asylum in Liverpool the next day. Liverpool CC (“Liverpool”) carried out an “age assessment” in order to ascertain what – if any – services they were obliged to provide. Why did all this happen? If AK was a child, then, as an unaccompanied asylum-seeking child, he would almost certainly be the responsibility of a local authority under s.20 Children Act 1989, rather than of NASS.

AK contended that he was 15 years old, but Liverpool found him to be 18 and, thus, an adult. He was then given into the care of NASS (the National Asylum Support Service – now known as NAM, the New Asylum Model). NASS then accommodated him in Liverpool before moving him to a detention centre in Hillingdon’s area.

His asylum claim was dismissed on 28 April 2008 and he appealed. An issue arose as to his age and he was assessed by a Dr Birch, who concluded that h was a child. He was then released and placed in the care of Hillingdon, who arranged for AK to be returned to Liverpool.

Liverpool and Hillingdon were in dispute however as to (a) who had responsibility for AK and, in particular (b) who should take responsibility for re-assessing his age. In practice, Liverpool has maintained AK but has contended that he was the responsibility of Hillingdon, from whom they sought reimbursement of the costs of caring for AK.

The authorities were unable to reach an agreement and Liverpool issued judicial review proceedings seeking a declaration that Hillingdon were under a duty to conduct an age assessment and had acted unlawfully in not accommodating him after his release from the detention centre.

The High Court

In the High Court, it was common ground that a new age assessment was needed and that AK should be accommodated by someone pending that assessment. James Goudie QC, sitting as a Deputy Judge held that Liverpool was the appropriate authority to carry out the assessment and, in particular, that Hillingdon had been entitled to assist AK in returning to Liverpool upon his release from the detention centre.

The grounds of appeal

Liverpool appealed on three points:

(a) AK had been Hillingdon’s responsibility under s.20, Children Act 1989 when he was released from the detention centre. That duty had not ended and could not end merely by transporting him to Liverpool;

(b) Since Hillingdon had owed the s.20 duty to AK at the relevant time, and had ever discharged that duty, Liverpool could not owe the same duty, since a child cannot be owed the same s.20 duty by two or more authorities at any one time;

(c) alternatively, if a s.20 duty can be owed by more than one authority, it had not been owed by Liverpool on the facts of the case.

The judgment

The appeal was allowed, but only (a) was the subject of full argument and judgment. It was clear that AK had initially been within the area of Liverpool and that, having contended he was 15, he had been owed a prima facie duty under s.20 Children Act 1989. That duty had been discharged once Liverpool assessed AK as being 18.

Once AK moved to Hillingdon’s area, it was they who would owe any relevant s.20 duty. They had not discharged that duty and had never purported to discharge that duty. Hillingdon had always maintained that it had no responsibility for AK at all. It had taken no steps to meet the s.20 duty. It had not, for example, conducted an age assessment, without prejudice to its primary view that it was not obliged to do so. It had merely talked to AK, found out that he wanted to go back to Liverpool, and arranged for his travel.

Hillingdon sought to get around this factual problem by contending that, by talking to AK and ascertaining his wishes, it had been complying with its duty under s.20(6) Children Act 1989. This provides that:

20(6) Before providing accommodation under this section, a local authority shall, so far as it reasonably practicable and consistent with the child’s welfare – (a) ascertain the child’s wishes and feelings regarding the provision of accommodation; and (b) give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

On the facts of the case, Hillingdon had not given any consideration to AKs welfare needs, so could not have engaged s.20(6) at all. However, the Court did accept that, in other cases, there may well be situations where the wishes of a mature, articulate and intelligent child would be able relevant to the question of whether or not to return him to another local authority area.

The appeal was therefore allowed on this basis. The other two grounds of appeal did not need to be determined.

Where do we go now?

I suspect that the full importance of this judgment will only become clear once it starts to be cited and applied in other cases. The facts are quite unusual, but the following points do seem of general application:

(a) local authorities cannot side-step their s.20 duties merely be sending the ‘child’ to another part of the country;

(b) however, in each case, the authority will have to be alive to the wishes of the child as to where he or she wishes to be accomodated and, in certain cases, may be able to lawfully conclude that the child should, in fact, be accomodated in another local authority area;

(c) whether or not a s.20 duty can be owed by more than one local authority to the same child is an “interesting question” for another day. Rix LJ, in a short concuring judgment, appears to think that it might be possible, particularly when one considers that the Children Act 1989 starts from the position of ensuring that the needs of the child are met and only then divides that responsibility for meeting those needs between authorities. However, he, like Wilson LJ and Dyson LJ, agreed that this was a question for another day.