R (ON THE APPLICATION OF M) v HAMMERSMITH AND FULHAM LONDON BOROUGH COUNCIL
R (on the application of M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14
House of Lords
Lord Hoffmann, Lord Scott, Lord Walker, Baroness Hale and Lord Brown
27 February 2008
Where a social services authority has taken no steps to assist a child, it cannot be said that that child is a “relevant child” for the purposes of the Children Act 1989 (ChA 1989). Such a child may, however, still be a “child in need” for whom services should be made available to safeguard and promote her welfare.
Ian Wise (instructed by the Howard League for Penal Reform) for the claimant.
Clive Lewis QC (instructed by Michael Cogher) for the authority.
The claimant was asked to leave home when aged 17. At that time, she had never been in local authority care. She approached the defendant local housing authority’s housing department and stated that she was homeless. She was provided with temporary bed and breakfast accommodation under the Housing Act 1996 (HA 1996) and the Homelessness (Priority Need for Accommodation) () Order 2002, (SI 2002/2051). She was summarily evicted from that accommodation, and was later convicted of criminal offences and sentenced to a four month detention and training order. While in custody, she applied for judicial review of the authority’s decision on her housing needs. She also claimed to be owed duties by the children’s services department of the authority, under ChA 1989. She argued that the authority (i) should have identified her as a child in need under s 17(1) and (10) in Pt III of ChA 1989; and (ii) should have provided her with accommodation under ChA 1989, s 20. She submitted that the authority’s action in providing her with temporary accommodation under HA 1996 was unlawful, and that as a consequence she had been deprived of the services which would have been available to her at the age of 18, had the provisions of the Children (Leaving Care) (England) Regulations 2001 (SI 2001/ 2874) been applied to her, and had she, in particular, been treated as “a former relevant child” pursuant to ChA 1989, s 23C .
The authority denied that it owed her any duty under ChA 1989. Permission to apply for judicial review was refused by the High Court, but granted by the Court of Appeal, which went on to hear and dismiss the substantive application for judicial review. The claimant appealed to the House of Lords.
BARONESS HALE:
Her ladyship set out the relevant statutory provisions. Section 22(1) of ChA 1989 provided:
“In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—(a) in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970.”
The 2006 Homelessness Code was correct to advise that, once it appeared to the housing department of a local authority that a 16- or 17-year-old might be homeless, that authority should accommodate her under s 188 pending clarification of whether the local children’s services authority owed a duty to provide her with accommodation under s 20. Her ladyship referred to Southwark London Borough Council v D [2007] 1 FLR 2181, [2007] EWCA Civ 182; H v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), [2007] All ER (D) 08 (Jun); R (S) v Sutton London Borough Council [2007] EWCA Civ 790, [2007] All ER (D) 422 (Jul); and R (L) v Nottinghamshire County Council [2007] EWHC 2364 (Admin), [2007] All ER (D) 158 (Sep).
It was not necessary to express a view on whether or not any of those cases were rightly decided. Her ladyship was entirely sympathetic to the proposition that where a local children’s services authority provided or arranged accommodation for a child, and the circumstances were such that they should have taken action under s 20 of ChA 1989, they could not side-step the further obligations which resulted from that duty by recording or arguing that they were acting under s 17 or some other legislation. But in most of those cases that proposition was not controversial. The controversy was about whether or not the s 20 duty had arisen at all.
Her ladyship agreed with the broad approach to the interpretation of when a parent was “prevented” from providing suitable accommodation or care under s 20(1)(c) in Nottinghamshire and Sutton.
Taking action
It was, however, 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 was 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 was no evidence that the children’s services authority did anything at all. It was 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 had not been drawn to the attention of the local social services authority or provided with any accommodation or other services by that authority.
The appeal would therefore be dismissed. Lords Hoffmann, Scott, Walker, and Brown delivered concurring opinions.
