(back to preceding text)

27.   The 2006 code spells out some points in more detail. It emphasises that 16 and 17 year olds who are homeless and estranged from their family will be particularly vulnerable and in need of support (para 12.12); that housing solutions are likely to be unsuccessful if the necessary support is not provided, so close liaison with social services and other support agencies ‘will be essential’ (para 12.13); and that bed and breakfast accommodation is unlikely to be suitable for 16 and 17 year olds who are in need of support (para 12.14). This case is a good illustration of the wisdom of this guidance. One of the reasons that M was evicted from the hostel for 16 and 17 year olds in October 2005 was her failure to co-operate with her support worker.

28.   Applying the 2002 Code (a fortiori the 2006 version) to the facts of this case, this was clearly a case of uncertainty as to whether M was a child in need. When she presented herself to the housing department for the second time in April 2005, the housing department knew enough to suggest that she might well be a ‘child in need'. They knew that she was not currently on any income, that she was a young person at risk, that she was on bail for various criminal offences. They also knew enough to suggest that the reason she might need accommodation was that the person who had been caring for her was prevented from providing her with suitable accommodation or care. They knew that her mother was seriously ill, certainly unwilling and possibly unable to cope with her any longer. It was foreseeable that without suitable accommodation and support she might have difficulty complying with her bail conditions, let alone with the more intensive requirements she might face under a community punishment or supervision order. By the time of her assessment interview in May, she was still without benefits and was obviously having difficulty coping with the demands of independent living.

29.  The housing department should have made a referral to the children’s services department, at the latest after the assessment interview in May. They could not be satisfied that she was in priority need for the purposes of their longer term obligations unless they had at least considered whether she was owed the duty under section 20 of the 1989 Act. The children’s services department should then have conducted an assessment in accordance with the Framework for the Assessment of Children in Need and their Families (Department of Health, 2000) and the local authority’s own practice guidance.

30.  In the chapter dealing with inter-agency assessment, the Department of Health give the following guidance about the respective responsibilities of housing and social services departments, in para 5.72:

“Social services departments have a duty under section 20(3) of the Children Act 1989 to accommodate any child in need aged 16 and 17 whose welfare is likely to be seriously prejudiced without the provision of accommodation. At the same time, Housing Authorities are required under the Housing Act 1996 to secure accommodation for people who are homeless, eligible for assistance and in priority need. Homeless young people may frequently come to the notice of both housing and social services and will need to be assessed to establish whether they should be provided with accommodation. There is a danger that in these circumstances young people may be passed from one agency to another and it is important therefore that joint protocols are agreed between housing and social services in the matter of how and by whom they are to be assessed.”

31.  Thus the statutory guidance given to both housing and social services departments stresses the need for joint protocols for assessing the needs of homeless 16 and 17 year olds. This is needed, not only to avoid a young person being passed from pillar to post, but also to ensure that the most appropriate agency takes responsibility for her. The 2002 Priority Need Order clearly contemplates that, if the criteria in section 20 of the 1989 Act are met, social services rather than housing should take the long term responsibility. Such a young person has needs over and above the simple need for a roof over her head and these can better be met by the social services. Unless the problem is relatively short term, she will then become an eligible child, and social services accommodation will also bring with it the additional responsibilities to help and support her in the transition to independent adult living. It was not intended that social services should be able to avoid those responsibilities by looking to the housing authority to accommodate the child.

32.  Sadly, there was no joint protocol in this case. Everyone in the housing department seems to have assumed that it was a housing department responsibility or nothing. No doubt they were doing their best in trying circumstances. Teenagers are not the easiest of people to deal with, although everyone records that M was pleasant and co-operative in interviews. Her difficulties were in learning how to lead a responsible and independent life at such a young age and at a time of enormous strain for the whole family. She also needed a settled place to live in order to meet the stringent demands placed upon her by the criminal justice system. The Youth Offending Team did identify these needs during the autumn of 2005, but again it seems to have been taken for granted that accommodation was a housing rather than a social services responsibility.

33.  We have no evidence of a deliberate policy in this London Borough to avoid its responsibilities under the 1989 Act by shifting them onto the housing department. Such a policy (while understandable in view of the heavy burdens now imposed by the 1989 Act) would be unlawful. But equally there is no evidence of a commitment to ensure that the needs of these young people are properly identified and the most appropriate services made available. Wall LJ emphasised the point, at paras 73 and 74 of his judgment:

“It is self-evident that most troubled 16 and 17 year old children will be unaware of the services available to assist them, and it is equally self-evident that the onus is not on children in need to identify and request the services they require.

Furthermore, any system can deal with the compliant. Young people in the position of M, who have had wretched childhoods, or who have been otherwise abused or neglected as children, and who have gone on to commit criminal offences, may well, like M, fail to co-operate with any investigation by the council into their circumstances. That fact does not, in my judgment, either of itself and as a matter of law, absolve local authorities of their duty both to investigate and to put in place the services which children such as M require.”

I agree. I have no doubt that the housing services department should have referred the case to the children’s services department and little doubt that, on the facts as we know them, the children’s services department should have accepted responsibility for her. M was not just a ‘hale and hearty 17 year old’ (as the local authority argued in the court below) but a deeply troubled young person with need for far more than a roof over her head.

34.  In hindsight, perhaps we can all agree on what ought to have happened. But the claim is that we should treat what ought to have happened as if it had actually happened. The claim is for the extra help and support available to former relevant children, even after they reach the age of 18, under section 23C of the 1989 Act. To be a relevant child, one must first have been an eligible child: section 23A(1). To be an eligible child one must have been ‘looked after’ by a local authority for the requisite period of time: Schedule 2, para 19B(1) and Leaving Care Regulations. Who then is a ‘looked after’ child? As M was never a child in care, the question is whether she was accommodated in the exercise of the local authority’s social services functions, and specifically their functions under section 20 of the 1989 Act. Essentially the argument is that the local authority were in fact acting under section 20 when they thought they were acting under section 188 of the 1996 Act.

35.  In the Court of Appeal, it was accepted in argument that in order for M to succeed it had to be shown that the decision to accommodate her under section 188 of the 1996 Act on 6 April 2005 was unlawful. If that decision was unlawful, given that the council did in fact accommodate her on that date, they must have been acting under section 20 of the 1989 Act. The Court of Appeal rejected that argument and rightly so. The duty in section 188 arises whenever the local housing authority ‘have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need'. By no means all 16 and 17 year olds will be entitled to accommodation under section 20 or 23B of the 1989 Act and thus excluded from the categories of those in priority need under the 1996 Act. In my view, the 2006 Homelessness Code is correct to advise that, once it appears to the housing department of a local authority that a 16 or 17 year old may be homeless, that authority should accommodate her under section 188 pending clarification of whether the local children’s services authority owe a duty to provide her with accommodation under section 20.

36.  The threshold in section 188 is designedly low. The housing authority should provide the accommodation when it is needed and then make further inquiries. In non-unitary authorities, the district council have no power to accommodate the young person under the 1989 Act. Clearly the housing officer in the district council should arrange temporary accommodation if it is needed and then contact the county council to discuss referral for assessment by social services. The position in unitary authorities cannot be different from that in non-unitary authorities. The council’s housing functions are delegated to the housing department and the council’s social services functions in respect of children are delegated to the children’s services department. Neither has the power to carry out the other’s functions. Each has a statutory duty to co-operate with the other. That is why they should have clear protocols for co-operation and joint assessment in cases such as this.

37.  Before the House, Mr Jan Luba QC has argued that, once it became clear to the local authority that the criteria in section 20 applied, the child must be taken to have been accommodated under that section. Even if it was not immediately apparent on 6th April 2005 that M was a child in need whose mother was prevented from providing her with suitable accommodation or care, it had certainly become apparent during the authority’s inquiries into her housing application. The authority could not avoid their obligations under the 1989 Act by putting a different label on what they had done. He draws support for that argument from four cases decided in the courts below, since the decision of the Court of Appeal in this case: chronologically, Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181; H v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), (2007) 10 CCLR 441; R (S) v Sutton London Borough Council [2007] EWCA Civ 790; and R (L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin).

38.  In Southwark London Borough Council v D [2007] EWCA Civ 182, [2007] 1 FLR 2181, a local authority social worker had arranged for a child, who could no longer live with her father because he was violent towards her, to live with a woman who had been her father’s partner. The question was whether the local authority had simply facilitated a private fostering arrangement, in which case they had no duty to maintain the child, or whether they had accommodated her under section 20, in which case they did. As the social worker had prevented the father from taking the child home from school, had taken the lead in making the arrangements, and had told the woman that financial arrangements would be made for her, it was not difficult to conclude that the authority had in fact been discharging their duties under section 20 and could not escape their financial liabilities.

39.  In H v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), (2007) 10 CCLR 441, there were three linked cases about unaccompanied asylum-seeking children for whom the local social services authorities had provided or arranged accommodation and who now claimed to be entitled to support as former relevant children. The local authorities argued that they had provided accommodation under section 17 rather than section 20 of the 1989 Act. It was held that, if the section 20 duty arose, the local authority could not ‘finesse it away’ by claiming to exercise a different power.

40.  The Court of Appeal ‘found help’ from the Wandsworth decision in reaching a very similar conclusion in R (S) v Sutton London Borough Council [2007] EWCA Civ 790. In that case there was no dispute that the local authority owed the section 20(1) duty towards a 17 year old girl who was about to be released from a Secure Training Centre. But the authority argued that the duty no longer applied because she had agreed to go to a hostel for homeless women under the homelessness legislation. However the authority conceded that she could have been accommodated there under the Children Act and the Court of Appeal held that she had in fact been placed there in fulfilment of their Children Act obligations. This meant, of course, that they continued to owe her obligations after she reached the age of 18.

41.  Lastly, in R (L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin), the issue was what the local authority had been doing when a social worker arranged for a seriously troubled young person who had been evicted from her mother’s home to live for a few days in an hotel. As she had previously been looked after by the local authority for some time, this would be sufficient for her to become a relevant child. It was common ground that the classification or definition of what was being done by the council at the time, particularly where there was no assessment and the relevant matters were not in mind, could not possibly be determinative as to what had occurred. The child was clearly a child in need, there had been a continuous duty to accommodate her under section 20, and she was therefore a former relevant child.

42.  It is not necessary, for the purpose of deciding this appeal, to express a view on whether any or all of these cases were rightly decided. For my part, I am entirely sympathetic to the proposition that where a local children’s services authority provide or arrange accommodation for a child, and the circumstances are such that they should have taken action under section 20 of the 1989 Act, they cannot side-step the further obligations which result from that duty by recording or arguing that they were in fact acting under section 17 or some other legislation. The label which they choose to put upon what they have done cannot be the end of the matter. But in most of these cases that proposition was not controversial. The controversy was about whether the section 20 duty had arisen at all.

43.  For what it is worth, it will be obvious from what has gone before that I agree with the broad approach to the interpretation of when a parent is ‘prevented’ from providing suitable accommodation or care under section 20(1)(c), which was favoured by Michael Burton J in the Nottinghamshire case and by Stanley Burnton J at first instance in the Sutton London Borough Council case [2007] EWCA 1196 (Admin), [2007] 2 FLR 849, rather than with the narrow approach favoured by Lloyd LJ in this case. This mother may not have been prevented from providing her daughter with any accommodation or care but she was surely prevented from providing her with suitable accommodation or care. On the other hand, as will also be obvious from what has gone before, I have reservations about the narrow approach of Stanley Burnton J in the Sutton case to the significance of the child’s wishes under section 20(6), on which the Court of Appeal declined to express a concluded view. It seems to me that there may well be cases in which there is a choice between section 17 and section 20, where the wishes of the child, at least of an older child who is fully informed of the consequences of the choices before her, may determine the matter. It is most unlikely that section 20 was intended to operate compulsorily against a child who is competent to decide for herself. The whole object of the 1989 Act was to draw a clear distinction between voluntary and compulsory powers and to require that compulsion could only be used after due process of law.

44.  But that is by the way. It is one thing to hold that the actions of a local children’s services authority should be categorised according to what they should have done rather than what they may have thought, whether at the time or in retrospect, that they were doing. It is another thing entirely to hold that the actions of a local housing authority should be categorised according to what the children’s services authority should have done had the case been drawn to their attention at the time. In all of the above cases, the children’s services authority did something as a result of which the child was provided with accommodation. The question was what they had done. In this case, there is no evidence that the children’s services authority did anything at all. It is impossible to read the words ‘a child who is…provided with accommodation by the authority in the exercise of any functions...which are social services functions within the meaning of the Local Authority Social Services Act 1970...’ to include a child who has not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority. Once again, had this been a non-metropolitan authority, the housing authority could not have provided accommodation under section 20 and the social services authority could not have provided interim accommodation under section 188. The position cannot be different as between the unitary and the non-unitary authorities.

45.  In the result, therefore, this appeal must be dismissed. This does not mean that the local children’s services authority have no responsibilities towards this young woman and her child. The child may well be a ‘child in need’ for whom services should be made available in order to safeguard and promote her welfare. The object of those services should be, so far as consistent with that duty, to promote the upbringing of the child with her family, so that her young mother will be able to give her the care, and the accommodation, that she needs.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

46.  I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I too would dismiss this appeal.