Judgments - R (on the application of G) (FC) (Appellant) v London Borough of Southwark (Respondents)

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26.  It is true, as Mr McGuire points out, that the 2002 Order assumes that there will be some homeless 16 or 17 year olds who are not owed a duty under section 20. But that is a very different thing from saying that there are children who are not owed a duty under section 20 because they are or may be owed a duty under the 1996 Act. This is circular reasoning. The 2002 Order takes out of priority need those children who require accommodation in the circumstances set out in section 20(1). They cannot in the same breath be put back into priority need by adjudging that they do not require accommodation at all when clearly they do.

27.  The only way to break out of that circle (recognised by Anthony Edward-Stuart QC, sitting as a deputy High Court judge in R (A) v Coventry City Council [2009] EWHC 34 (Admin)) is to read into section 20(1) the words “under this section” after “requires accommodation". Put another way, the question would then become, not “does this child require accommodation for one of the listed reasons?” but “does this child require to become a ‘looked after’ child with all that that entails?” There are at least two problems with this. First and foremost, it involves reading into the section words which are not there. Second, Parliament has decided the circumstances in which the duty to accommodate arises and then decided what that duty involves. It is not for the local authority 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.

28.  Section 20(1) entails a series of judgments, helpfully set out by Ward LJ in R (A) v Croydon London Borough Council [2008] EWCA Civ 1445, at para 75. I take that list and apply it to this case.

(1) Is the applicant a child? That was the issue in the Croydon case (in which leave to appeal has been granted) but it is not an issue in this.

(2) Is the applicant a child in need? This will often require careful assessment. In this case it is common ground that A is a child in need, essentially because he is homeless. It is, perhaps, possible to envisage circumstances in which a 16 or 17 year old who is temporarily without accommodation is nevertheless not in need within the meaning of section 17(10): perhaps a child whose home has been temporarily damaged by fire or flood who can well afford hotel accommodation while it is repaired. There are hints of this in the social worker’s view that “A is quite a resourceful teenager - by his own admission he has spent the last 1 - 2 months moving around amongst friends and girlfriends and sourcing his own accommodation. Furthermore, it appears that A has attempted to adhere to his own values around personal hygiene despite these circumstances. . . “ But it cannot seriously be suggested that a child excluded from home who is “sofa surfing” in this way, more often sleeping in cars, snatching showers and washing his clothes when he can, is not in need. Mr Brims also pointed out that “A’s lack of permanent housing will have a long term impact upon his educational attainment and will also impact upon other practical areas of his life. Without permanent accommodation, A does not have a base level of stability on which to build other areas of his life, and daily tasks such as personal hygiene, washing clothes and maintaining a reasonable diet will pose significant challenges.”

(3) Is he within the local authority’s area? This again is not contentious. But it may be worth remembering that it was an important innovation in the forerunner provision in the Children Act 1948. Local authorities have to look after the children in their area irrespective of where they are habitually resident. They may then pass a child on to the area where he is ordinarily resident under section 20(2) or recoup the cost of providing for him under section 29(7). But there should be no more passing the child from pillar to post while the authorities argue about where he comes from.

(4) Does he appear to the local authority to require accommodation? In this case it is quite obvious that a sofa surfing child requires accommodation. 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".

(5) Is that need the result of:

(a)  there being no person who has parental responsibility for him; for example, where his parents were unmarried, his father does not have parental responsibility, and his mother had died without appointing a guardian for him;

(b)  his being lost or having been abandoned; or

(c)  the person who has been caring for him being prevented from providing him with suitable accommodation or care.

As Lord Hope pointed out in the Barnet case, (c) has to be given a wide construction, if children are not to suffer for the shortcomings of their parents or carers. It is not disputed that this covers a child who has been excluded from home even though this is the deliberate decision of the parent. However, it is possible to envisage circumstances in which a 16 or 17 year old requires accommodation for reasons which do not fall within (a), (b) or (c) above. For example, he may have been living independently for some time, with a job and somewhere to live, and without anyone caring for him at all; he may then lose his accommodation and become homeless; such a child would not fall within section 20(1) and would therefore fall within the 2002 Order and be in priority need under the 1996 Act.

(6) What are the child’s wishes and feelings regarding the provision of accommodation for him? This is a reference to the requirement in section 20(6) of the 1989 Act, as amended by section 53(2) of the Children Act 2004:

“Before providing accommodation under this section, a local authority shall, so far as is 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.”

Some have taken the view that this refers only to the child’s views about the sort of accommodation he should have, rather than about whether he should be accommodated at all: see R (S) v Sutton London Borough Council [2007] EWHC 1196 (Admin), para 51. This is supported by the opening words, which are “before providing” rather than “before deciding whether to provide"; contrast the equivalent provision in section 17(4A), “before determining what (if any) service to provide . . .” On the other hand, as explained in Hammersmith and Fulham, it is unlikely that Parliament intended that local authorities should be able to oblige a competent 16 or 17 year old to accept a service which he does not want. This is supported by section 20(11), which provides that a child who has reached 16 may agree to be accommodated even if his parent objects or wishes to remove him. It is a service, not a coercive intervention. Whether one reaches the same result via a broader construction of section 20(6) or via the more direct route, that there is nothing in section 20 which allows the local authority to force their services upon older and competent children who do not want them, may not matter very much. It is not an issue in this case, because A wanted to be accommodated under section 20. But a homeless 16 or 17 year old who did not want to be accommodated under section 20 would be another example of a child in priority need under the 2002 Order.

(7) What consideration (having regard to his age and understanding) is duly to be given to those wishes and feelings? As Dyson LJ pointed out in R (Liverpool City Council) v Hillingdon London Borough Council [2009] EWCA Civ 43, para 32, “children are often not good judges of what is in their best interests". But that too should not be an issue here. A had been given legal advice as to which legal route to accommodation would be in his best interests. He needed help to get back into education and get his life on track towards responsible adult independence and away from whatever influence the gang culture was exerting over him. That would be better provided for him if he were accommodated under section 20 and became an “eligible” child.

Items (8) and (9) on the list given by Ward LJ, referring to the position of people with parental responsibility, do not apply in this case because A had reached the age of 16 and agreed to being provided with accommodation under section 20. It follows, therefore, that every item in the list had been assessed in A’s favour, that the duty had arisen, and that the authority were not entitled to “side-step” that duty by giving the accommodation a different label.

29.  That is all that is required to decide this appeal. I would like, however, to offer a few observations on the interesting submissions of the Secretary of State. These were entirely clear as to the result: “In blunt terms, a local children’s services authority cannot refer a homeless child in need to the local housing authority” (para 37). However, reference was made to Local Authority Circular LAC (2003) 13, Guidance on Accommodating Children in Need and their Families. This Circular was issued after section 17(6) of the Children Act 1989 (para 10 above) had been amended by the Adoption and Children Act 2002. As originally enacted, this had not included express reference to providing accommodation for families and children, although it was generally understood that it did, until the decisions of the Court of Appeal in the two Lambeth cases cast doubt on this. Hence the words “providing accommodation and” were inserted after “include” to clarify the position (which the House of Lords confirmed in the Barnet and Lambeth cases to have been correct). The definition of a “looked after” child in section 22 was at the same time amended to make it clear that it did not include children who were provided with accommodation under section 17.

30.  The main point of the Circular was to stress that “the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families". This is consistent with the general duty in section 17(1)(b), to promote the upbringing of children in need by their families. However, the Circular went on to say 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 section 17". Before deciding which section was the more appropriate the authority should carry out an assessment, which would include taking into account the wishes of the child. The assessment should first determine whether the child met the criteria in section 20(1). If the child had no parent or guardian in this country, perhaps because he arrived alone seeking asylum, the presumption should be that he fell within section 20, “unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate". He should be cared for under section 20 while the assessment was being carried out. But some older asylum seeking children had refused to become “looked after", although the Children Act was their only lawful means of support. Although the section 20(1) duty would appear to be triggered, taking into account the child’s wishes, the local authority might judge him competent to look after himself and provide support, including help with accommodation, without making him a looked after child. (The Circular goes on to discuss jointly funded placements of children in residential schools; these raise issues quite different from those in this case and I will say no more about them.)

31.  The specific example given, of the unaccompanied asylum seeking child who refuses to be accommodated under section 20, is entirely consistent with the analysis in paragraph 28 above. There are other instances given in that paragraph where the section 20 duty might not arise and the child could be given help and support under section 17. But if and insofar as the Circular suggests that, even though the section 20(1) criteria are met, the authority have a choice between section 17 and section 20 which is based upon whether the child needs to be “looked after", it is incorrect. Section 20 involves an evaluative judgment on some matters but not a discretion.

32.  More difficult are the Secretary of State’s submissions quoted in paragraph 20 above, to the effect that once the assessment has been completed and rehabilitation with the family failed, the child’s long term needs might best be met by the provision of support to move to independent living. We have heard no submissions from the other parties on the circumstances in which, once triggered, the duty under section 20(1) might come to an end. Presumably, it will do so if the criteria are no longer met - if the child is no longer “in need", or his parents or carers are no longer prevented from providing him with suitable accommodation or care, or if a competent child no longer wishes to be accommodated under that section. But the whole purpose of the leaving care provisions was to ensure that older children who were without family support were given just the sort of help with moving into independent living that children normally expect from their families. Authorities should therefore 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.

33.  Finally, something should be said about co-operation between the authorities, which is stressed in all the guidance, most recently in Joint working between Housing and Children’s Services, Preventing homelessness and tackling its effects on children and young people (Department for Communities and Local Government, Department for Children, Schools and Families, May 2008). Section 27 of the 1989 Act empowers a children’s authority to ask other authorities, including any local housing authority, for “help in the exercise of any of their functions” under Part III; the requested authority must provide that help if it is compatible with their own statutory or other duties and does not unduly prejudice the discharge of any of their own functions. This does not mean that the children’s authority can avoid their responsibilities by “passing the buck” to another authority; rather that they can ask another authority to use its powers to help them discharge theirs. They can ask a housing authority, for example, to make a certain amount of suitable accommodation available for them to use in discharging their responsibility to accommodate children under section 20. Section 23(2) gives them great flexibility in the ways in which they can provide accommodation for the children they are looking after, ranging from placing them with families, relatives or other suitable people, placing them in an appropriate children’s home, or “making such other arrangements as . . . seem appropriate to them". The very flexibility of what the children’s authority can provide supports the construction which we have placed upon section 20(1).

34.  For these reasons, therefore, I would allow this appeal. The result is that A was accommodated under section 20(1) of the 1989 Act on 11 September 2007, became an “eligible child” within the meaning of paragraph 19B(2) of Schedule 2, and thereafter a “ former relevant child” within the meaning of section 23C(1) of that Act.

LORD MANCE

My Lords,

35.  I have had the benefit of reading in draft the speech of my noble and learned friend, Baroness Hale of Richmond. For the reasons she gives, with which I am in full agreement, I agree that this appeal should be allowed.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

36.  I have had the benefit of reading in draft the opinion of my noble and learned friend, Baroness Hale of Richmond. For the reasons she gives, I too would allow this appeal. However, I would like briefly to summarise my views on the interrelationship between the duty under Part VII of the Housing Act 1996 and the duty under section 20 of the Children Act 1989 in the case of children aged 16 or 17, who “require accommodation".

37.  The Borough’s argument, which was accepted by the majority of the Court of Appeal, is as follows. At the time A approached the Borough’s children’s services authority, he was a child aged 16 or 17 who was “homeless", “eligible for assistance", and not “homeless intentionally". Accordingly, he had priority need for housing under Part VII of the 1996 Act, as a result of the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051). Consequently, as the local housing authority thereby had a duty to house him, the children’s authority could perform its duty under section 20 of the 1989 Act by making arrangements with the housing authority to ensure that A was provided with housing.

38.  Apart from being inconsistent with the thrust of the reasoning of this House in R(M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535, I consider that this argument is unsatisfactory, for two connected reasons. First, and most importantly, the 2002 Order expressly excludes from priority those children aged 16 or 17 to whom a children’s authority owes a duty under section 20 of the 1989 Act. Secondly, the argument could not have been advanced before the 2002 Order came into force.

39.  The fact that children to whom a children’s authority owe a section 20 duty are excluded from the ambit of the 2002 Order seems to me to render the Borough’s argument circular. On the face of it, A “require[s] accommodation” and therefore must be “provide[d with] accommodation” by the children’s authority under section 20 of the 1989 Act. In order to avoid that conclusion, the Borough argues that A has a priority need claim on the housing authority under the 2002 Order. But the only basis on which G falls within the scope of the 2002 Order is if the children’s authority has no duty under section 20 of the 1989 Act. So, the reasoning on which the Borough relies to avoid the duty which is prima facie imposed by section 20 effectively involves asserting that there is no such duty.

 
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