R (G) v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Rix,Lord Justice Pill |
| Judgment Date | 29 July 2008 |
| Neutral Citation | [2008] EWCA Civ 877 |
| Date | 29 July 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2007/2648 |
[2008] EWCA Civ 877
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE SIMON
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Pill
The Right Honourable Lord Justice Rix And
The Right Honourable Lord Justice Longmore
Case No: C1/2007/2648
CO85432007
Mr Ian Wise (instructed by Fisher Meredith Llp) for the Appellant
Mr Bryan McGuire (instructed by London Borough of Southwark Legal Services) for the Respondent
Hearing dates : 22 nd May 2008
Introduction
This case concerns the exercise of a local authority's powers under sections 17 and 20 of the Children Act 1989 and the inter-relationship of those two sections of the Act.
The claimant “G” was born in February 1990 and is now 18. He arrived with his mother from Somalia in 1998 and was granted indefinite leave to remain on 11 th August 2005. In June 2007 he fell out with his mother and he says, genuinely, that he cannot continue to live with her. Shortly thereafter he first presented himself to the housing department of the defendant local authority (“Southwark”) asking for accommodation. They persuaded him and his mother to have a second try but G left the maternal home permanently in early July 2007. Between then and September 2007 he slept on friends' sofas and in friends' cars. On 10 th September 2007 he retained the services of solicitors Fisher Meredith (“Fishers”) and presented himself to Southwark's social services department with a solicitors' letter requesting accommodation immediately. Fishers wrote to Southwark again on 11 th September 2007 requesting an assessment under section 17 of the Children Act 1989 (“the 1989 Act”) and asking that accommodation be provided for G pursuant to Section 20 of that Act. On that day Southwark provided bed and breakfast accommodation at Gypsy Hill. The letter of 11 th September was a pre-action protocol letter which reserved the right to issue judicial review proceedings without further notice.
On 12 th September Southwark's legal and democratic services department responded to the proposed claim for judicial review by saying
i) that they understood the subject-matter of challenge was the social services department's failure to provide accommodation to G under Section 20 of the Children Act;
ii) that an initial assessment of G had been commenced;
iii) that G's mother would have him back that night and that, since G had indefinite leave to remain, there was no obstacle to his receiving temporary accommodation through the housing department;
iv) that they could not agree to proceed under section 20 pending the conclusion of the assessment.
Later that day the social services department or, that part of it which is called the Children's Services Department (“Children's Services”), told Fishers that the initial assessment would be completed within 7 working days.
In fact Mr Mick Brims completed his assessment on 18 th September 2007. It is a carefully compiled 14 page document. It set out G's needs under a number of headings e.g. Health, Education, Emotional and Behavioural Development, Identity, Family and Social Relationships, Social Presentation and Self-care Skills. Under the heading 'Housing', the writer of the report wrote:-
“[G'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 [G] 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. It appears that [G] is unable to return home at this time.”
Under the heading 'Analysis' the writer concluded:
“It is my view that [G] is actually 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 [G] has attempted to adhere to his own values around personal hygiene despite these circumstances and is also looking to further his prospects by enrolling in college … It is my view that this resourcefulness is a useful strength for [G].
…
Therefore, the primary needs identified here for [G] relate to Housing and Education. Having examined the information available, I see (sic) or have not been made aware of any additional needs or vulnerabilities that would suggest the need for longer-term accommodation being provided by Social Services. [G] is 17 years of age and not in full-time education at this point in time, therefore I feel that accommodation provided by Southwark HPU [Homeless Persons Unit] and referrals to other support agencies (such as Connexions) will be sufficient at this time to work on addressing the social, emotional and practical issues identified in this assessment.”
As the judge said, the recommendations contained in the assessment can be summarised under 4 headings. (1) The Family Resource Team would provide [G] with ongoing social work support and might be able to provide support for applying for benefits. (2) The Family Group Conference would look into the possibility of bringing about reconciliation between G and his mother. (3) A Family Resource Team worker would assist G in relation to further education possibilities. (4) G would be referred to Southwark HPU and other support agencies such as Connexions for Housing and Career advice. In relation to the latter point the Report stated:
“G has indicated an interest and willingness to engage with this service around these areas.”
Fishers did not agree that G's need for accommodation could be met by the Housing Department. In a letter of 19 th September they reiterated their view that G should be accommodated pursuant to Section 20(1)(c) of the Children Act 1989 (“the 1989 Act”).
On 20 th September, the Council's legal services department replied with the decision which was the subject of the judicial review proceedings:-
“Our client department has fully considered your client's needs and reached the decision that Section 20 is not appropriate as [G] has no identified need for social services support, and his needs can be satisfactorily met through the provision of housing and referrals to other support agencies.”
The reference to “our client department” must mean “Children's Services”.
After referring to a number of the cases to which Fishers had themselves referred in the course of the correspondence, the writer continued:
“Our client department has fulfilled its duty to assess your client and reached the decision that he is not in need of Section 20 accommodation; he simply requires 'help with accommodation'.”
The reference to 'help with accommodation' adopted the wording of a Local Authority Circular issued by Central Government in June 2003, LAC (2003) 13 (“the 2003 Circular”).
The Statutory Regime
Section 17 of the 1989 Act (as amended) provides, under the title 'Provision of services for children in need, their families and others',
“(1) It shall be the general duty of every local authority (in addition to the other duties imposed on 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.
…
(6) The services provided by a local authority in the exercise of functions conferred on them by this section may include [providing accommodation and] giving assistance in kind or, in exceptional circumstances, in cash.
…”
The words in square brackets were added by s. 116(1) of the Adoption and Childrens Act 2002 (“the 2002 Act”).
Section 20 of the 1989 Act is headed, 'Provision of accommodation for children, general'.
“(1) 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:
…
(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.”
There is no dispute in the present case that G was on 20 th September 2007 a child in need, was within Southwark's area and fell within subsection 1(c) in that his mother had been prevented from providing him with suitable accommodation. The question is whether G appeared to the local authority to require accommodation.
Part VII of the Housing Act 1996 imposes duties on Local Authorities in relation to those who are homeless. Section 188 of the Housing Act 1996 is headed, 'Interim duty to accommodate in the case of the apparent priority need'.
“(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part.”
Children of 17 are among those whom statutory provisions recognise as being in priority need.
Following the amendment to Section 17(6) of the 1989 Act by the 2002 Act, guidance was issued to local authorities on accommodating children in need and their families. That guidance is contained in the 2003 Circular which states at the...
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