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Former relevant children who aren’t former relevant children

By S

This is a quick note on a quite important case concerning duties owed to young people who are over 18 and who should have been, but in fact were not, provided with accommodation under s.20, Children Act 1989 prior to their 18th birthday.

You may recall in R (M) v Hammersmith LBC [2008] UKHL 14, Baroness Hale, after criticising the authority’s failure to carry out an assessment of M for almost all of her judgment, decided that a young person could not be a former relevant child if the authority had not in fact provided the child with accommodation under s.20 even if they should have done. This is important because former relevant children who are over 18 are still owed a number of duties when they cease to be children which they would otherwise not be owed. The High Court and Court of Appeal had subsequently sought to wriggle round this and the law had developed so that where a child was brought to the attention of the authority’s social services department and as a result of an assessment by a social worker was provided with accommodation by another department (e.g. housing) then they are deemed to have been looked after under s.20: TG v Lambeth LBC [2011] EWCA Civ 526. There is even a case where the High Court managed to stretch this principle to breaking point (and in fact, as we shall see below and as I thought at the time, did break it) when it held that an authority was deemed to have accommodated a child under s.20 even though it was the UK Border Agency who had provided the accommodation on the grounds that the social services authority had carried out an assessment of the child before the accommodation was provided: R (R) v Croydon LBC [2013] EWHC 4243 (Admin).

In R (GE (Eritrea) v Bedford Borough Council [2014] EWCA Civ 1490, GE had entered the UK from Eritrea. On appyling for asylum she claimed to be  16 and a half. The UK Border Agency disputed her age and said she was over 18 and subsequently took steps to remove her. After instructing solicitors she obtained interim relief preventing that from happening. In the course of those proceedings her solicitors also wrote to Bedford asking that they assess her age. Bedford decided that she was over 18 and refused to provide her with accommodation. Subsequently the High Court ordered that the UKBA provide her with accommodation. Bedford were then added to the proceedings and GE sought to judicially review their decision that she was not a child in need within the meaning of s.20. As is often the case, GE, on her own case, subsequently turned 18 before she had had the opporuntity to challenge Bedford’s finding as to her age. She amended her challenge to one that she was she was a former relevant child and was thus still owed duties by Bedford. Her judicial review failed after the Administrative Court found that she had never been in fact provided with accommodation by the authority and therefore refused to carry out an assessment of her age on the basis that it was now irrelevant. GE appealed.

In the Court of Appeal she failed to persuade the Court of Appeal that she was a former relevant child. The judge below had been right to find that she had not been provided with accommodation by the authority and so could not be a former relevant child. The Court of Appeal disapproved the High Court authorities (such as R above) in which the High Court had deemed accommodation to have been provided under s.20 when in fact it hadn’t. It was wholly at odds with what had been decided in M. TG was a different case; the accommodation was not deemed to have been provided under s.20 where it had occurred as a result of a social services assessment (I must confess that is now how I read TG but I imagine this reading  might have something to do with the fact that the Court of Appeal can’t disapprove its own decisions unless they are per incuriam and it therefore sometimes has to be a bit more creative).

However, and this is a big however, Christopher Clarke LJ, went onto hold that a social services authority”may use its discretionary powers to make good any unlawfulness that it has committed in the past and may, in some circumstances, be obliged to do so.” When might that be you ask? Christopher Clarke LJ said this

“[55]… There is no general rule that, wherever it has acted unlawfully, a local authority must undo its past errors to the fullest extent that it can. Much will depend on the circumstances, including whether or not the claimant had sought interim relief and been refused (as here), whether he was guilty of unacceptable delay, and whether and to what extent the authority or the claimant should be regarded as blameworthy. There may be countervailing considerations of public interest which would entitle it to refuse any relief at all. It may be relevant to consider what other remedies are open to the claimant. The matter would be one for the discretion of the local authority, to be determined in the light of whatever application is made and in the circumstances applying when it is invoked.”

In this case it meant that it was necessary for GE’s age to be determined, because while – even if she won – she could not be a former relevant child she would be enitled to request that the authority exercise its discretion to treat her as if she was a former relevant child and all that it entails (e.g. accommodation etc. etc.).


To summarise all this then:

1) A young person cannot be a former relevant child unless they have actually been provided with accommodation by the authority under s.20, although this may include where they are provided with accommodation by housing where it has resulted from a social services assesment. All of the other cases in the High Court which deemed a young person to have been provided with accommodation under s.20 were wrongly decided.

2) An authority, where it has unlawfully failed to provide accommodation under s.20, has a discretion to treat young people who are now over 18 as if they were former relevant children. That will depend on the circumstances and obviously will be subject to a Wednesbury challenge.


S is a barrister, based in London, who practices predominantly in housing and local government law.


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