21/05/2009

Child 'requires accommodation'

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.

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.

5 Comments

  1. Niki Goss

    R v Coventry CC ex parte A is a very useful case see the note Published on this web site previously. The only part in effect disapproved is that portion referred o in para 27 of the HoL judgment

    Reply
    • NL

      Nikki, quite right. I’ve edited the post to make that clear. (My excuse – I wrote the post between 10.30 and 12.30 last night).

      Reply
  2. J

    A lot to think about in this case. I’m pretty tired now, but two points spring to mind:
    (a) I suppose that the next thing to be aware of will be a LA trying to get a child to express a view under s.20(6) that they’d prefer s.17 or HA 1996;
    (b) I get the impression that Baroness Hale doesn’t think a great deal of LA decision makers. Given that the Age Assessment cases have been adjourned so as to allow her to sit on the Committee, I suspect that is one vote we can safely say will go in favour of the appellant.

    Reply
  3. NL

    On the age assessment – the issue in front of their Lordships is the Art 6 argument and whether the age assessed stands as precedent fact. Collins J disposed of the actual assessment issues the other day, as we reported. But I’m sure that wouldn’t stop the Baroness.

    on 20(6) – that’s probably so, although they do then have to have regard to the weight that should be put on the child’s view in the circumstances.

    Reply

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