R (G) v London Borough of Southwark
| Jurisdiction | UK Non-devolved |
| Judge | LORD MANCE,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD NEUBERGER OF ABBOTSBURY,LORD HOPE OF CRAIGHEAD,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD,LORD PHILLIPS OF WORTH MATRAVERS,LORD HOFFMANN,LORD SCOTT OF FOSCOTE |
| Judgment Date | 10 June 2009 |
| Neutral Citation | [2009] UKHL 26,[2009] UKHL 29 |
| Court | House of Lords |
| Date | 10 June 2009 |
[2009] UKHL 26
Appellate Committee
Lord Hope of Craighead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Mance
Lord Neuberger of Abbotsbury
HOUSE OF LORDS
Appellant:
Ian Wise
Azeem Suterwalla
(Instructed by Fisher Meredith LLP)
Respondents:
Bryan McGuire
Peggy Etiebet
(Instructed by Legal Services Department, London Borough of Southwark)
Intervener
Secretary of State for Children, Schools and Families
Steven Kovats (written submissions only)
(Instructed by Treasury Solicitors)
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons she gives I would allow the appeal.
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. I agree with it, and for the reasons that she gives I would allow the appeal.
My Lords,
The human issue in this case is simple to state. If a child of 16 or 17 who has been thrown out of the family home presents himself to a local children's services authority and asks to be accommodated by them under section 20 of the Children Act 1989, is it open to that authority instead to arrange for him to be accommodated by the local housing authority under the homelessness provisions of Part VII of the Housing Act 1996? The issue matters, as Rix LJ pointed out in the Court of Appeal, "because a child, even one on the verge of adulthood, is considered and treated by Parliament as a vulnerable person to whom the state, in the form of the relevant local authority, owes a duty which goes wider than the mere provision of accommodation": [2008] EWCA Civ 877, [2009] 1 WLR 34, para 35.
Section 20 contains several duties and powers to accommodate children, the relevant one for present purposes being in subsection (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
(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."
This subsection contains two technical terms which require explanation. Most important is a "child in need", defined in section 17(10) of the 1989 Act:
"For the purposes of this Part a child shall be taken to be in need if —
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled."
Although not relevant in this case, "parental responsibility" is also a technical term, covering all the legal powers and duties of parents, and is only held by parents, guardians and people with the benefit of certain orders or agreements under the 1989 Act: see ss 4, 4A, 12 and 33.
It comes as something of a surprise that the issue has had to reach this House, in the light of the observations in R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535 as to what ought to have happened in the reverse situation. There the child had approached the housing authority and asked them to accommodate her. The House made it clear that she should have been referred to the children's authority for assessment. It was not contemplated that, had she been assessed as falling within the criteria in section 20(1), she might nevertheless have been referred back to the housing department. As was said then, at para 4 (but see also paras 15, 31 and 42):
"… the clear intention of the legislation is that these children need more than a roof over their heads and that local children's services authorities cannot avoid their responsibilities towards this challenging age group by passing them over to the local housing authorities."
It is worth noting that neither the factual nor the legal problem was likely to arise before 2002. Before then, there was little prospect of a 16 or 17 year old being independently accommodated under the homelessness legislation. Local housing authorities only have a duty under the 1996 Act to "secure that accommodation is available" where they have reason to believe that the applicant "may … have a priority need" (for the interim duty to accommodate under section 188(1)) or are satisfied that he does have a priority need (for the longer term duty under section 193). While people with dependent children were expressly listed among those with priority need under section 189(1)(b), children themselves were not and so could only qualify if they were regarded as "vulnerable as a result of … other special reason" under section 18(1)(d). Under the Homelessness (Priority Need for Accommodation) (England) Order 2002 (SI 2002/2051), article 3, however, children aged 16 and 17 were expressly included in the list. So there was now a real possibility that they might be owed duties under the homelessness legislation. But two groups of children are excluded from those in priority need under article 3: those to whom a children's authority owe a duty under section 20 and "relevant" children who have previously been looked after by a local authority (see para 6). As was said in the Hammersmith and Fulham case, at para 31:
"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 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."
The legal issue therefore resolves itself into one of construction: what do the criteria in section 20(1) mean and how, if at all, is their application affected by the other duties of children's authorities, in particular under section 17 of the 1989 Act, and by the duties of housing authorities under the 1996 Act?
Before moving on to the facts of this case, it is worth noticing two other developments which have brought the issue into sharper focus recently. One is the Children (Leaving Care) Act 2000, which came into force in 2001. The 1989 Act had always contained a duty to "advise and befriend", and a power to "give assistance", to young people under 21 who had been looked after by local authorities and voluntary organisations (see section 24). But the 2000 Act introduced much more specific duties towards "eligible" 16 and 17 year olds whom they were looking after (see 1989 Act, sched 2, para 19B) and, more importantly, towards such children when they ceased to be looked after by the children's authority and became "relevant" children for this purpose (see 1989 Act, sections 23A, 23B and 23C). Some of these new duties could extend beyond childhood up to the age of 21 or even 24 if the young person was pursuing a planned course of education and training. The general aim of these new responsibilities was to provide a child or young person with the sort of parental guidance and support which most young people growing up in their own families can take for granted but which those who are separated or estranged from their families cannot.
The other relevant development was an influx of unaccompanied asylum seeking children. By definition, they were ineligible for housing under the 1996 Act and so their only source of publicly provided accommodation was the local children's authority. Children's authorities shouldered that burden, but disputes arose as to whether they were doing so under section 20, in which case the further "leaving care" obligations arose, or whether they were doing so under some other power, in which case those obligations did not arise: see R (H) v Wandsworth London Borough Council [2007] EWHC 1082 (Admin), [2007] 2 FLR 822. This same "labelling" problem arose in other cases where the children's authority had arranged accommodation for a child but was reluctant to accept that it had done so under section 20: see R (L) v Nottinghamshire County Council [2007] EWHC 2364; R (D) v Southwark London Borough Council [2007] EWCA Civ 182, [2007] 1 FLR 2181; R (S) v Sutton London Borough Council [2007] EWCA Civ 790, 10 CCLR 615. The message of those cases is that if the section 20 duty has arisen and the children's authority have provided accommodation for the child, they cannot "side-step" the issue by claiming to have acted under some other power.
In particular, they cannot claim simply to have been acting under the general duty in section 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."
Section 17(6) makes it clear that:
"The services provided by a local authority in the exercise of functions conferred on them by this section may include providing accommodation and...
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