Housing—Homeless—Child of 16 or 17
Housing—Homeless—Child of 16 or 17
R (on the application of G) (FC) v Southwark London Borough Council [2009] UKHL 26, [2009] All ER (D) 178 (May)
House of Lords, 20 May 2009, Lord Hope, Lord Walker, Baroness Hale, Lord Mance and Lord Neuberger.
If a child of 17 meets the criteria of s 20 of the Children Act 1989 (ChA 1989),
it is not open to the local authority to avoid its obligations under that section by arranging for him to be accommodated under s 17 or otherwise.
Ian Wise and Azeem Suterwalla (instructed by Fisher Meredith LLP) for the appellant. Bryan McGuire and Peggy Etiebet (instructed by Legal Services Department, London Borough of Southwark) for the respondent. Steven Kovats (instructed by the Treasury Solicitor) for the intervener, the secretary of state for children, schools and families (written submissions only).
The appellant, A, was born in 1990 in Somalia and came to the UK with his mother and siblings in 1998. He was granted indefinite leave to remain in 2005. Relations with his mother deteriorated and, in June 2007, she excluded him from home. He approached the local authority. After mediation failed he presented himself to the respondent local authority asking for an urgent assessment of his needs under s 17 of the Children Act 1989 (ChA 1989) and immediate accommodation under s 20(1). The authority provided the child with bed and breakfast accommodation through the housing department, pending completion of the s 17 assessment.
Completed assessment
The completed assessment suggested that, given A’s resourcefulness and age, accommodation provided by the homeless persons unit, with referrals to other support agencies, would be sufficient for his needs.
The solicitors argued that A should in fact be accommodated pursuant to s 20(1)(c), thereby becoming entitled to the wider range of services available to a “looked-after child” and eventually qualifying as a “former relevant child”. The authority responded that A did not need accommodation under s 20, but only “help with accommodation” under s 17. A applied for judicial review.
The judge refused permission to apply. The Court of Appeal granted permission but went on to dismiss the application. A appealed to the House of Lords.
Baroness Hale of Richmond: Section 20(1) provided that “Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.”
By s 17(1): “It shall be the general duty of every local authority (in addition to the other duties imposed upon them by this Part) – (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.”
Construction
The legal issue resolved itself into one of construction: what did the criteria in s 20(1) mean and how, if at all, was their application affected by the other duties of children’s authorities, in particular s 17 of ChA 1989 and the duties of housing authorities under the Housing Act 1996 (HA 1996).
Her ladyship considered, inter alia, R (G) v Barnet London Borough Council [2004] 1 All ER 97. That case was helpful to A in highlighting the primacy of the specific duty owed to individuals in s 20 over the general duty owed to children in need in s 17, just as R (on the application of M) v Hammersmith and Fulham London Borough Council [2008] 4 All ER 271 was helpful to A in highlighting the primacy of CA 1989 over HA 1996 in providing for children in need.
Circular reasoning
It was true that the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051) assumed that there would be some homeless 16- or 17-year-olds who were not owed a duty under s 20. But that was a very different thing from saying that there were children who were not owed a duty under s 20 because they were or might be owed a duty under HA 1996 Act. That was circular reasoning. The 2002 Order took out of priority
need those children who required accommodation in the circumstances set out in s 20(1). They could not in the same breath be put back into priority need by adjudging that they did not require accommodation at all when clearly they did.
The only way to break out of that circle was to read into s 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 were at least two problems with that. It involved reading into the section words which were not there. Second, Parliament had decided the circumstances in which the duty to accommodate arose and then decided what that duty involved. It was not for the local authority to decide that they did not have to accommodate at all.
Series of judgments
Section 20(1) entailed a series of judgments set out by Ward LJ in R (A) v Croydon London Borough Council [2009] 1 FCR 317. Her ladyship applied that list to the instant case and held that every item should be 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.
The appeal would therefore be allowed.
Lord Hope, Lord Walker, Lord Mance and Lord Neuberger delivered concurring opinions.
