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Home > Judgments > 2008 archive

R (on the application of G) v London Borough of Southwark [2008] EWCA Civ 877

Appeal against refusal to allow move for judicial review against a decision not to accommodate the claimant under the Children Act. Move to review allowed but application dismissed by majority of the Court of Appeal.

The claimant, who was 18 by the time of this hearing, was a Somali immigrant who had arrived in the UK with his mother and with indefinite leave to remain. He left the maternal home after arguments and spent some time sleeping on friends sofas. On application to the local authority his needs were assessed and they decided that he hid not require help under s20 of the Children Act but simply “help with accommodation”. The claimant then applied to move to judicial review against the decision that he did not need accommodation but the judge concluded that the decision was for the local authority to evaluate and so refused the application for review.

In this appeal Longmore LJ gave the lead judgment and dismissed the application primarily on the grounds that the statutes and accompanying guidance gives the local authority discretion to decide whether the individual requires accommodation or just help finding it. The claimant’s resourcefulness indicated that his needs could be met through the housing department. Rix LJ, dissenting, could not hold with that view partly because the local authority’s assessment had identified education and housing as the claimant’s majority needs. The judgment also includes lengthy consideration of the interplay of the Children Act and the Housing Act and whether one regime has primacy over the other.
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Neutral Citation Number: [2008] EWCA Civ 877
Case No: C1/2007/2648
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
CO85432007
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 29/07/2008

Before :
THE RIGHT HONOURABLE LORD JUSTICE PILL
THE RIGHT HONOURABLE LORD JUSTICE RIX
and
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
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Between :

THE QUEEN ON THE APPLICATION OF G   (Appellant)

 - and - 

LONDON BOROUGH OF SOUTHWARK    (Respondent)
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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 : 22nd May 2008
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Judgment

Lord Justice Longmore:
Introduction

1. 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.

2. 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 11th 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 10th 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 11th 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 11th September was a pre-action protocol letter which reserved the right to issue judicial review proceedings without further notice.

3. On 12th 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.

4. In fact Mr Mick Brims completed his assessment on 18th 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.”

5. 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.”

6. Fishers did not agree that G’s need for accommodation could be met by the Housing Department.  In a letter of 19th September they reiterated their view that G should be accommodated pursuant to Section 20(1)(c) of the Children Act 1989 (“the 1989 Act”).

7. On 20th 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”.

8. 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’.”

9. 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
10. 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”).

11. 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 20th 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.

12. 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.

13. 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 bottom of its second page:-

“The amendment to Section 17 did not affect the duties and powers of local authorities to provide accommodation for lone children under Section 20 of the Children Act 1989, or under a care order.  Accordingly, the power to provide accommodation under Section 17 will almost always concern children needing to be accommodated with their families.  However, 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.”

It is the phrase “help with accommodation” that is used in inverted commas by Southwark’s legal services department in their decision letter of 20th September 2007 referred to in para. 8 above.

The Judgment
14. In his judgment of 15th November 2007 Simon J emphasised that Section 20 of the 1989 Act only applied to a child “who appears to them [the local authority] to require accommodation” and pointed out that the local authority (or any rate their Children’s Services department) in their decision letter of 20th September 2007 had said that it did not appear to them that G required accommodation.  The judge had taken the precaution of asking Mr Wise for G whether he was challenging the way in which Southwark had exercised its discretion.  He said he was not: his challenge was to the legality of the decision.  His submission was that there could be only one answer to the question whether G required accommodation and that was that he did.  The judge concluded that that was a matter for Southwark to evaluate.  In his reply Mr Wise had attempted to broaden his challenge and argue that Southwark’s decision was irrational but the judge pointed out that that was being said for the first time and said further that there was no factual foundation for such a contention.  He accordingly refused permission to move for judicial review.  On 14th December this court granted permission to move and ordered a full hearing of the appeal against Southwark’s undertaking that, if G presented himself to them meanwhile and co-operated with their procedures, they would ensure that he had suitable accommodation until the determination of the appeal.

Submissions
15. Mr Wise now accepts that Southwark had to make an evaluative decision in relation to the question whether G did in fact require accommodation but submits:-

i) the  assessment on its face showed that G did “require accommodation”;

ii) it was accordingly unlawful for Children’s Services to decide that he did not require accommodation but only “help with accommodation”;

iii) in any event there was no warrant for drawing any distinction between requiring accommodation and requiring help with accommodation.  The only proper distinction was between a child who required accommodation because he did not have accommodation and a child who did not require accommodation because he already had it.

16. Mr McGuire for Southwark supports the decision of the judge and submits that once Children’s Services had decided that accommodation was not required and that help with housing was sufficient, a referral to the HPU discharged their duty, and that was basically the end of the matter. 

Preliminary considerations
17. At first sight it is surprising that the issues arising in this case continue to be important once G attained his 18th birthday in February 2008.  The reason is that, if a local authority concludes (or ought to have concluded) that a child requires accommodation pursuant to section 20 of the 1989 Act, that carries with it a whole raft of further duties because the child becomes a “looked after child” until he is 21 pursuant to section 22(1) of the 1989 Act as amended.  The detailed position is explained by Baroness Hale of Richmond in R (M) v Hammersmith and Fulham LBC [2008] UKHL 14; 1 WLR 535 paras 20 and 21:-

“20.  Once a child is “looked after” by a local authority, a great many other duties arise.  These include, crucially, the duty to safeguard and promote her welfare and to maintain her in other respects apart from providing accommodation for her: 1989 Act, sections 22(3) and 23(1)(b).  It would not be consistent with those duties, for example, to place a young person in a bed and breakfast hotel or hostel accommodation without providing her with enough money for food and other essentials.  Although the local authority do not have “parental responsibility” for a child who is accommodated under section 20, they are nevertheless replacing to some extent the role played by a parent in the child’s life, and are expected to look after the child in all the ways that a good parent would.

21.  Particularly relevant in this case are the duties towards older children inserted by the Children (Leaving Care) Act 2000.  The aim was to supply for those older children the same sort of continuing support and guidance which children can normally expect from their own families as they move from childhood to adulthood.”

That was a case in which Children’s Services ought to have (but had not) considered the position of a child whose needs had only been considered and dealt with by the housing department.  Baroness Hale explained the statutory background in detail but the House of Lords decided that the court could not re-write history by pretending that Children’s Services had, in fact, considered the position.  In this case, of course, Children’s Services were involved from the outset and it is accepted by Southwark that, if they made an unlawful decision pursuant to section 20 of the 1989 Act, then the court can so declare and consequentially, that G will then be a looked-after child and further duties will be owed to him.  The actual decision in M’s case is not therefore directly relevant to the disposition of this appeal.

The 2003 Circular and the 1989 Act
18. The first question, as it seems to me, is whether the 2003 Circular is justified in drawing the distinction which it does between “requiring accommodation” and “requiring help with accommodation”.  If it is not so justified, the decision letter of 20th September 2007 has proceeded on a wrong legal basis and cannot stand.

19. The body of the circular records that the amendment to section 17(6) of the 1989 Act, adding the words “providing accommodation and”, was made in order to implement the general understanding (despite the expression of doubt by appellate courts) that local authorities had power to provide accommodation under section 17 of the Act without making the child a “looked-after child” within section 22 of the Act.  There is then the heading “Framework for the Assessment of Children in Need and their Families” under which there is first the paragraph I have already quoted in para. 13 above.  I now cite the entire material part of the guidance (adding paragraph numbers for ease of analysis) so that the first paragraph can be seen in its context:-

“(1) The amendment to section 17 did not affect the duties and powers of local authorities to provide accommodation for lone children under section 20 of the Children Act 1989, or under a care order.  Accordingly, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families.  However, 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.

(2) Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of help or support to a child in need, a local authority should undertake an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families, published by the Government in April 2000.  It should then use the findings of that assessment, which will include taking account of the wishes and feelings of the child (as required by section 20(6) of the Children Act), as the basis for any decision about whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to his circumstances.

(3) The assessment should first determine whether the child meets the criteria set out in section 20(1).  Those criteria are:
(a) there being no person who has parental responsibility for him;
(b) his being lost or 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 and or care.

(4) For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after, unless the needs assessment reveals particular factors which would suggest that an alternative response would be more appropriate.  While the needs assessment is being carried out, he should be cared for under section 20.

(5) Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful; means of support in this country.  In such cases the child’s being without a family or responsible adult in this country would appear to trigger a duty under section 20(1).  However, after taking account of the child’s wishes as required by section 20(6), the local authority might judge that the child is competent to look after himself.  In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20 (and thereby taking him into the looked after system).  In such cases section 17 may be used for support, including help with accommodation, without making the child a looked after child.”

20. For my part, I see nothing unlawful in this guidance.  The first paragraph states accurately that while the power to provide accommodation in section 17 will almost always concern children needing to be accommodated with their families (no doubt including the wider family if a parent cannot provide accommodation), there will nevertheless be cases where

“a lone child who needs help with accommodation … might appropriately be assisted under section 17.”

The second paragraph then deals with the practicality of undertaking an assessment of the child in accordance with the relevant statutory guidance published by the Government in April 2000 as the basis

“for any decision whether he should be provided with accommodation under section 20 (and therefore become looked after) or whether other types of services provided under section 17 of the Act are better suited to his circumstances.”

The fourth paragraph repeats the possibility of a response which is alternative to section 20 but emphasises that while the needs assessment is being carried out, the child should be cared for under section 20.  It is not clear that Southwark accepted at the time that, during the assessment, they ought to be caring for G under section 20 but nothing now turns on that.  It may be that they ought to have accepted that but, if they had, it would have been without prejudice to the ultimate outcome.  The fifth paragraph then addresses the position of a child not wishing to be a looked-after child particularly in the context of asylum-seeking children.

21. None of this is, in my judgment, contrary to the statutory wording.  It is true that section 20 does not expressly draw a distinction between a child who “requires accommodation” and in child who “requires help with accommodation”.  But the fact that section 17(6) empowers a local authority to provide accommodation as part of its general duty to safeguard and promote the welfare of children within their area must presuppose that not every child (or even every child in need who satisfies the three criteria in section 20(1) of the 1989 Act) must require accommodation under section 20; otherwise there would be no room for the evaluative judgment which everyone agrees the local authority must make pursuant to the statutory phrase “who appears to them to require accommodation”.

22. The most that, as it seems to me, can be said against the circular is that it may be it is not clear enough that a decision that a child requires “help with accommodation” (as opposed to the actual provision of accommodation under section 20) should not be driven by the consideration that expensive consequences will result from any decision to accommodate him under section 20.  But it is, of course, the case that it should not be so driven.  The decision, whether a child requires accommodation or only help with accommodation, is to be a free-standing decision based on the needs of the child without regard to the financial consequences of the decision.  I am, however, satisfied that the dichotomy between requiring accommodation and requiring help with accommodation is lawful.

23. The matter is not free from authority since, in a collection of cases which raised the issue whether local authorities who had in fact provided or arranged accommodation in the past for asylum-seeking children could label the accommodation, at their option, section 17 accommodation or section 20 accommodation, it fell to Holman J to consider the 2003 Circular.  The judge held (rightly as it seems to me) that local authorities could not decide whether accommodation which they had provided or arranged was section 17 accommodation if, in fact, it ought to have been provided under section 20.  He considered the 2003 Circular and came to the hesitant conclusion in H, Barhanu and B v Wandsworth Hackney and Islington [2007] 2 FLR 822, 839 (para. 62):-

“I do not consider that the guidance is actually wrong, still less unlawful.  But I do consider that it has the potential unwillingly to mislead …”

The judge’s explanation of this potential to mislead is to be found in para. 64:-

“I do consider, however, that the guidance in the circular is confusingly – rather than clearly – expressed and, in particular, that it comes very close to being wrong in some references to the child ‘not needing to be looked after’ [para. 1], and ‘not thereby taking him into the looked-after system’ [para. 5].”

He added that a local authority should decide whether the child requires to be provided with accommodation or merely needs ‘help with’ accommodation without regard to the implication of his being or not being a looked-after child.  It will be apparent that I entirely agree with this reservation of Holman J but I would also say (perhaps more firmly than Holman J felt able to say) that the Circular gives guidance that is lawful.  It may be added that, although the lawfulness of the guidance was not challenged in R (M) v Hammersmith & Fulham, the decision of Holman J was referred to by Baroness Hale of Richmond without any sign of disapproval or qualification.

24. It is, of course, important, as has been said in some of the cases, that the local authority should not side-step its section 20 obligations by deciding that accommodation or help with accommodation can be provided under section 17.  But there is no evidence that that has happened here unless it can be said, as Mr Wise does say, that the decision letter is not properly based on the assessment or that, on its true reading, the decision letter itself accepts that accommodation is required under section 20.  It is, therefore, to those documents I now turn.

The assessment of 18th September 2007
25. It is fair to say that parts of the assessment do refer to G’s need for accommodation but, in my view, only in the sense that everyone needs accommodation who does not already have it.  For example, Mr Brims comments on difficulties which lack of permanent housing will have for G since he does not have a basic level of stability on which to build other areas of his life.  But he adds that G is a resourceful teenager moving around and sourcing his own accommodation.  He also says that G’s primary needs are for education and housing but he adds that he cannot see (and has not been made aware of) any additional needs or vulnerabilities that suggest the need for long-term accommodation to be provided by Social Services.  He concludes by saying that accommodation provided by Southwark’s Homeless Person Unit and referrals to other support agencies will be sufficient to address the social and practical issues identified in his assessment.

26. Mr Wise submits that if accommodation is to be “provided” by the HPU, then there is a requirement for accommodation and section 20 thus automatically applies.  I do not agree.  In the first place, even if Mr Brims was purporting to say that Southwark should “provide” accommodation, the decision on the question whether G required accommodation pursuant to section 20 was not for Mr Brims; he was merely to provide the information on which the decision was to be based.  Secondly the use of the phrase “accommodation provided by Southwark HPU” is not intended to mean that Southwark HPU must actually themselves provide accommodation.  Mr Brims is (rightly) regarding the HPU as one support agency among others which will address G’s relevant concerns.

The decision letter of 20th September 2007
27. In this letter the writer makes express the (lawful) distinction between a “need of section 20 accommodation” and “help with accommodation”.  The decision is, of course, based on the assessment and points out that there is no identified need for social services support.  It also points out that G will be treated by the Housing Department as being in priority need and concludes that G’s needs (for accommodation and other matters) can be satisfactorily met through the provision of housing and referrals to other support agencies, saying that he simply requires help with accommodation.  I do not read the phrase “provision of housing” as accepting that G requires accommodation for the purpose of section 20.  The Decision Letter comes to the opposite conclusion and is, in my opinion, entitled to do so.

28. As I have already pointed out, there is no challenge to the rationality of Southwark’s decision, if it was a decision legally open to them.  The truth is that Southwark have decided that G is a resourceful teenager who is capable of sourcing accommodation provided that he is given assistance to do so.  That was a decision that was legally open to the local authority and it is not for this court (which has not even, unlike the local authority, seen G) to second-guess their evaluation of the position.

Conclusion
29. Although, therefore, this court has given permission to G to move for judicial review, I would, for my part, dismiss his application.

Lord Justice Rix:
30. In June 2007, when he was 17, G was thrown out of his home in Southwark by his mother. After an unsuccessful attempt at mediation brokered by the respondent council (“Southwark”), he was again thrown out in July 2007. It is not disputed that the relationship has broken down and that G cannot return to live with his mother. After sleeping at various addresses (“sofa-surfing”) and at times in cars, G sought advice on 10 September from solicitors who wrote to Southwark on the same day asking it to assess his needs under section 17 of the Children Act 1989 and to provide him with accommodation under that Act’s section 20. On 12 September Southwark replied to say that an initial assessment had already commenced on the previous day. In the meantime G had been provided with bed and breakfast accommodation. Southwark’s assessment was completed and dated 18 September 2007. Relevant passages are cited at para 4 above. Its critical finding was that G’s “primary needs identified here…relate to Housing and Education”. However, since G was not in full-time education, Mr Brims, the assessor, considered that “accommodation provided by Southwark HPU” (i.e. Southwark’s housing department) “and referrals to other support agencies” would be sufficient to address “the social, emotional and practical issues identified”. The assessment therefore recommended that G “attend Southwark HPU with a view to obtaining accommodation through this service”. It also recommended the support of other elements of Southwark’s social services.

31. Basing itself on this assessment, on 20 September 2007 Southwark issued its decision letter, which is the decision under attack in these proceedings. It wrote:

“We refer you to page 13 of the assessment completed by Mr Brims where he notes:

“…I feel that accommodation provided by Southwark HPU and referrals to other support agencies (such as Connexions) will be sufficient at this time in addressing the social, emotional and practical issues identified in this assessment

Our client department [i.e. Children’s Services] 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 provision of housing and referrals to other support agencies…

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”.”

32. G was therefore sent to Southwark’s housing department, who treated him, for in such circumstances he plainly was, as an applicant in priority need to whom a full duty under Part VII of the Housing Act 1996 was owed. G was thus provided with accommodation by Southwark’s housing department and his need for accommodation was met under the Housing Act.

33. The issue in this appeal is whether his need for accommodation ought rather to have been met and treated as having been given under section 20 of the Children Act. If so, Southwark accepts that this court could so declare. 

34. I gratefully refer to Lord Justice Longmore’s judgment for the further facts of this case.

The two regimes
35. If G’s need for accommodation can be met by Southwark in one way or the other, why does it matter how it is met? It matters because a child, even one on the edge of adulthood, is considered and treated by Parliament as a vulnerable person to whom the state, in the form of a relevant local authority, owes a duty which goes wider than the mere provision of accommodation. There are two regimes which are potentially applicable, one under the Children Act and the other under the Housing Act, but where a child is concerned, the primary regime is that under the Children Act.

(i) The Children Act regime
36. Section 17 (“Provision of services for children in need, their families and others”) sets out the basic duty of a local authority:

“(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.

10) 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.”

37. It is common ground that at the relevant time G was a child in need within the meaning of section 17(10). The wording of section 17(10) should be borne in mind.

38. Section 17 is concerned with providing services not only to a child in need, but also to his family. The section expresses the hope that the child in need can be assisted by promoting his upbringing by his family.

39. Despite that general reference to “providing accommodation” in section 17(6), which was introduced in 2002 by section 116(1) of the Adoption and Children Act 2002 (“ACA 2002”), it is section 20 which is specifically concerned with the provision of accommodation and is headed “Provision of accommodation for children, general”. We are concerned primarily with section 20(1), which provides:

“(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; or
(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.”

40. In the present case, as Longmore LJ acknowledges at para 11 above, it is common ground that on 20 September 2007 G was (i) a child in need, (ii) within the area of Southwark, and (iii) lacked accommodation as a result of  an event within sub-section (c). I use the word “lacked” accommodation, rather than the statutory word “required”, only because the critical issue on this appeal is whether Southwark was entitled to say that G did not “appear to them to require accommodation”. But in truth G did require accommodation (as a result of an event within sub-section (c)) – I have referred above to G’s need for accommodation, which is the same concept – and that need or requirement was in fact acknowledged by Mr Brims’ assessment (as a primary need which could be met by the housing department) and by the housing department itself who recognised G’s “priority need” (in the terms of Part VII of the Housing Act). So in truth the only issue in this appeal is whether Southwark was entitled to say that it did not appear to it that G required accommodation within section 20(1) when all around, including Southwark’s own housing department, acknowledged that G did require accommodation.

41. How is it then that Southwark is able to put forward a case that it did not appear to it that G required accommodation? The reasoning, as it has been advocated, has varied, but it is essentially, I think, because Southwark says that it is entitled to take the position that, in circumstances where its housing department would be obliged to provide accommodation under the Housing Act, it can conclude that there is no need for it to provide, and therefore G does not require, accommodation for the purposes of section 20(1) of the Children Act. In my judgment, that only has to be stated to be seen to be a non sequitur; but, as I shall seek to show, it is also inconsistent with the primacy which, in a case within section 20(1), must be accorded to the Children Act regime over the Housing Act regime.

42. As an important element of the understanding of that primacy, it is necessary to say something more about the Children Act regime. Section   22 (“General duty of local authority in relation to children looked after by them”) introduces the concept of the “looked after” child. That concept includes (by virtue of section 22(1)) any child who is “provided with accommodation by the authority in the exercise of any functions…which are social services functions…apart from functions under sections 17…” Thus a child who is provided accommodation under section 20(1) (or other subsections within section 20) for a period of 13 weeks is a “looked after” child. The concept of a “looked after” child is then made the basis for further duties described in section 22 and following. The general duty is set out in section 22(3), e.g. “to safeguard and promote his welfare”. Section 23(2) describes how the local authority shall carry out its duty to provide accommodation to a “looked after” child. Section 23C(6) provides that a local authority continues to have certain duties to a looked after child beyond adulthood, via the concept of a “former relevant child”, until he reaches 21. This is all part of a regime whereby, when the conditions of (inter alia) section 20(1) are met, the local authority is responsible for a child as a quasi parent. It will be recalled that the three cases within section 20(1) include, apart from the one with which we are concerned, also “(a) there being no person who has parental responsibility for him” and “(b) his being lost or having been abandoned”.

43. Other situations within section 20 where a local authority can become responsible for a “looked after” child are, for instance, section 20(3) whereby a local authority has a duty to provide accommodation for any child in need aged at least 16 “whose welfare the authority consider is likely to be prejudiced if they do not provide him with accommodation”; and section 20(4) whereby a local authority has a power to provide accommodation (even though a person who has parental responsibility for him is able to provide him with accommodation) “if they consider that to do so would safeguard or promote the child’s welfare”. Thus in certain cases, such as section 20(1) and (3), the provision of accommodation is mandatory, while in other cases, such as section 20(4) (see also section 20(5)), it is discretionary. However, whether a mandatory duty or discretionary power is prima facie applicable, section 20(7) states that the local authority “may not provide” accommodation where a person with parental responsibility who is willing and able to provide accommodation or arrange for accommodation to be provided objects; and section 20 (6) states that before providing accommodation under section 20 the 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 willing to ascertain.”

44. It may be observed that, even though the underlying concept of the “looked after” child concerns children who are not only “in need” but also require the assistance of the local authority in some other respect, such as accommodation or the safeguarding of welfare, nevertheless where section 20(1) is concerned, the extra test is the need for accommodation (as a result of certain defined causes the general effect of which is that the child is alone) not a more general test of the need for the intervention of social services. That is in my judgment plain on the wording of the section, and has been acknowledged in the course of argument by Mr Bryan McGuire, who has appeared on behalf of Southwark. In this respect the need for accommodation as a result of the defined causes is itself the test for the incidence of the more general duties of looking after which the Children Act regime applies. That is subject, however, to the relevance of the child’s wishes and feelings. It may be that an older child will make it plain that he does not want or require the provision of accommodation under section 20. It may be that accommodation is not “required” under section 20 because, for example, a private fostering relationship is available (see Southwark London Borough Council v. D [2007] EWCA Civ 182, [2007] 1 FLR 2181 at paras 49/50). In such a case, it may be that provision of accommodation by the local authority is not required, even in a case otherwise within section 20(1). As Baroness Hale of Richmond said in R(M) v. Hammersmith and Fulham London Borough Council [2008] UKHL 14, [2008] 1 WLR 535 at para 43:

“On the other hand, as will be obvious from what has gone before, I have reservations about the narrow approach of Stanley Burnton J in the Sutton case [R(S) v. Sutton London Borough Council [2007] EWHC 1196 (Admin), [2007] 2 FLR 849, [2007] EWCA Civ 790, 10 CCLR 615] to the significance of the child’s wishes under section 20(6), on which the Court of Appeal declined to express a concluded view. It seems to me that there may well be cases in which there is a choice between section 17 and section 20, where the wishes of the child, at least of an older child who is fully informed of the consequences of the choices before her, may determine the matter. It is most unlikely that section 20 was intended to operate compulsorily against a child who is competent to decide for herself. The whole object of the 1989 Act was to draw a clear distinction between voluntary and compulsory powers and to require that compulsion could only be used after due process of law.”

(ii) The Housing Act regime
45. The Housing Act regime of course also concerns the provision of accommodation, but on a much more general basis not focussed on the interests of children. That is not to say that a child may not have a need for accommodation for the purposes of the Housing Act, but, generally speaking, the Housing Act regime is not concerned with children outside a parental environment. Thus section 189 (“Priority need for accommodation”) only refers to children in the context of “a person with whom dependent children reside or might reasonably be expected to reside” (section 189 (1)(b)). There the priority need is for the sake of the children but only awarded to the person with parental responsibility. However, section 189(2) gives the Secretary of State power to add categories of further persons who shall be classified as in priority need. Pursuant to section 189(2), the Secretary of State has made the Homelessness (Priority Need for Accommodation) (England) Order 2002 which adds to those who have a priority need the following:

 “Children aged 16 or 17

3. –(1) A person (other than a person to whom paragraph (2) below applies) aged sixteen or seventeen who is not a relevant child for the purposes of section 23A of the Children Act 1989.
(2) This paragraph applies to a person to whom a local authority owe a duty to provide accommodation under section 20 of that Act (provision of accommodation for children in need.”

46. It follows therefore that a child to whom a local authority owes a duty under section 20 of the Children Act cannot have a priority need for the purposes of Part VII of the Housing Act. It is plain in my judgment that especially vulnerable children (by which I mean children who are vulnerable for reasons that go beyond the mere fact of their age) who are in need of accommodation have to be dealt with under the Children Act regime and not under the Housing Act regime. It follows that it ought to be illegitimate for a local authority who is dealing with a child in need who requires accommodation for a section 20 reason to pass that child over to its housing department on the basis that the housing department will be able (and required) to provide accommodation on the very ground that the local authority has declined to deal with the case under section 20.

47. Section 193 describes the full duty owed to persons with priority need who are not homeless intentionally, and section 188 describes the interim duty to accommodate persons in case of apparent priority need.   

The 2002 amendments and the Local Authority Circular LAC (2003) 13
48. In 2002 certain alterations were made to both the Children Act and the Housing Act regimes in the area of children: those alterations have been mentioned above but need to be focussed on next.

49. On the one hand section 17(6) of the Children Act was amended to introduce the words “providing accommodation and”, and the case of 16 and 17 year olds who were not “looked after” children within section 20 of the Children Act was added to the categories of person with a priority need for the purpose of the Housing Act.

50. It follows that where a local authority provides accommodation to a child under section 17(6) of the Children Act there may be an overlap with the provision of accommodation under the Housing Act, but not where a local authority provides accommodation under section 20 of the Children Act. Consistently with that, the definition of a “looked after” child under section 22 of the Children Act was also amended at the same time to exclude children to whom accommodation had been provided under section 17.  

51. LAC (2003) 13 is headed “Guidance on Accommodating Children in Need and Their Families” and was (by its para 1 (“Summary”)) expressly written in the light of the 2002 amendments to the Children Act. The purpose of those amendments is explained under the heading “Introduction”, viz to clarify and confirm “for the avoidance of future doubt”, in the light of then recent court decisions, that section 17 includes the power for local authorities to provide accommodation for families and children and that the provision of accommodation in this way does not make the child looked after. In other words, the amendments were by way of clarification only and not for the purpose of changing the law.  

52. It is in this context that the circular goes on to make the following points:

“The amendment to section 17 did not affect the duties and powers of local authorities to provide accommodation for lone children under section 20 of the Children Act 1989, or under a care order. Accordingly, the power to provide accommodation under section 17 will almost always concern children needing to be accommodated with their families. However, 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.”

53. There is some difficulty in interpreting this passage. In submissions before us, “providing help with accommodation” has been spoken of, for instance by Mr McGuire, as something distinct from “providing accommodation”. Examples of “providing help with accommodation” given by Mr McGuire are, for instance, assisting with the payment of rent, or with the filling in of forms, or with information as to how the housing department could assist, or with the search for private accommodation. All these matters are plainly not in themselves the providing of accommodation. On the other hand, the whole context of the Circular and the amendment to section 17(6) is “providing accommodation”, the words inserted into section 17(6). Whereas “providing help with accommodation” is not a statutory term found in section 17 at all – although something close to it is found in section 27 (“Co-operation between authorities”) which refers to an authority requesting the “help” of another authority. However, I understood Mr McGuire to be submitting that section 17 was only concerned with “help with accommodation” and not with the provision of accommodation itself. I am doubtful about that.

54. The Circular continues, after referring to the need for an assessment in accordance with the statutory guidance set out in the Framework for the Assessment of Children in Need and their Families (April 2000), with specific reference to section 20(1) as follows:

“For example, where a child has no parent or guardian in this country, perhaps because he has arrived alone seeking asylum, the presumption should be that he would fall within the scope of section 20 and become looked after, unless the needs assessment reveals particular factors which would suggest an alternative response would be more appropriate. While the needs assessment is being carried out, he should be cared for under section 20.

Local authorities have reported cases where older asylum seeking children have refused to become looked after, but where because of their immigration status the Children Act provides their only lawful means of support in this country. In such cases the child’s being without a family or responsible adult in this country would appear to trigger a duty under section 20(1). However, after taking account of the child’s wishes as required by section 20(6), the local authority might judge that the child is competent to look after himself. In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20 (and thereby taking him into the looked after system). In such cases section 17 may be used for support, including help with accommodation, without making the child a looked after child.”

55. I would understand that passage as saying that where, in the light of the child’s wishes and feelings as ascertained under section 20(6), the child, although alone, does not require accommodation from the local authority, then the local authority is free to deal with the child exclusively within section 17. The passage cited above from Baroness Hale’s speech in Hammersmith and Fulham would seem to me to support such a reading. That is not, however, to say that a local authority has a free hand, where the facts plainly fall within section 20(1), to conclude, contrary to the wishes of the child, that he does not “require accommodation”, but merely help with accommodation. In this connection I would refer to what Holman J said in R(H and others) v. Wandsworth, Hackney and Islington London Borough Councils [2007] EWHC 1082 (Admin), [2007] 2 FLR 822 at para 55:

“The duty under section 20(1) is not expressed to be subject to subsection (6)…But subsection (6) operates as a prior step ‘before providing accommodation’, not before the duty under subsection (1) to do so arises. In my view, subsection (6) is obviously and primarily directed to the form and manner in which accommodation is provided, and has a tie-in with the wide discretion under section 23(2). So it is at least primarily directed to such issues as whether the child is accommodated with a family or other suitable person; or in an appropriate children’s home; or, within the very wide discretion under section 23(2)(f) in bed and breakfast accommodation or a flat, alone or sharing etc. But I accept that subsection (6) is wide enough also to include the child’s wishes and feelings as to whether he wishes to be provided with accommodation at all. If he says he does not, then the local authority may conclude that in fact he does not ‘require’ accommodation at all, and in any event cannot force him into accommodation if he does not want it.”

56. In the present case, there is no question but that G did want Southwark to provide him with accommodation. That was plainly the import of the letters that his solicitors were writing to Southwark at the time. That was also the primary need identified by Mr Brims’ assessment. Section 20(6) does not here provide Southwark with a reason why the section 20(1) duty does not apply.  

The parties’ submissions
57. It is appropriate to start with Southwark’s decision letter, parts of which have been quoted above. Southwark said that G was not in need of “section 20 accommodation”, but simply required “help with accommodation”. It went on to support its decision and that distinction by reference to Wandsworth, Hackney and Islington and in particular to Holman J’s decision in the Islington case. 

Southwark argued:

“In that case the claimant was staying in accommodation provided through the housing department. Southwark is of the view that the circumstances in the Islington case are analogous to your client’s. The children’s services [have] identified a means for your client to secure his own accommodation through its housing department and provided assistance for that to occur.” 

The premise appears to be that G did not require accommodation because he was able to secure “his own accommodation” with the help of Southwark’s children’s services and housing department.

58. Before the judge, Simon J, Southwark’s primary submission was in effect that, even in the case of a child, the Housing Act regime took precedence over the Children Act regime. I quote from Mr McGuire’s skeleton argument before the judge:

“2. The challenge raises an important question of approach. Suppose a 16 or 17 year old appears at the Town Hall, seeking accommodation. Whose responsibility is he? Housing or Social Services? Southwark says housing issues are dealt with by housing… 

11. For 16 or 17 year old who first presents to local authorities at the age of 16 or 17, the first port of call is housing. Housing will then ask themselves the usual serial questions of whether the applicant is eligible, homeless, in priority need and not intentionally homeless.
12. In this case the Claimant may be in priority need because he is aged 17 and therefore falls within the priority need groups. The authority is complying with its statutory duty under that Act.
13. Social services will become involved in the event that the applicant does not qualify for accommodation under the above test.
14. Whilst it is the case that section 20 Children Act 1989 carries with it a range of responsibilities, what is provided in terms of accommodation is less extensive. Under Part 7 one may be in a position in due course to be allocated council accommodation and later still to obtain a right to buy.
15. Southwark’s first point therefore is that one goes to the Homeless Persons Unit [HPU] and to the homelessness legislation on homeless matters. The Claimant’s accommodation is being provided by Southwark under the Housing legislation.
16. The second point is that where housing is providing accommodation, a local authority could reasonably conclude that the applicant does not require accommodation. Thus, at the moment, while interim accommodation is being provided, the authority is entitled to find that he is not in need of accommodation. Moreover the Claimant’s case then has to be that housing ought not to be complying with its statutory duty: it should cease doing so, and social services should provide a service under section 20 instead.
17. Seen in that context, Southwark is entitled to ask itself what it is that the Claimant needs. Does he need accommodation? Or does he merely require help which will enable him to obtain his own accommodation?...
19. In the case where the Claimant may be entitled to Part 7 accommodation, however, the authority can and should ask itself whether what the applicant really needs is accommodation, or merely help in securing his own accommodation. This may take the form of making an appointment for him at the HPU or helping him fill in the relevant documentation. In such a case the conclusion that what the applicant needs is help in obtaining his own accommodation through Part 7 of the Housing Act 1996 will be both common and sound.”

59. This submission thus set out in greater detail the approach taken by Southwark in its decision letter. G did not need or require accommodation because he could secure it for himself as a priority need applicant from the housing department. Therefore, all that G needed from children’s services was some help: “This way to the HPU”.

60. The judge accepted that submission, which he summed up as follows:

“The Council maintains that it acted legally. It was entitled to take the view that G requires ‘help with accommodation’ under the priority need provisions of s.17 of the Act and Part VII of the Housing Act 1996; and that he was not in need of s.20 accommodation.”

He also complained that the submission made on behalf of G, “that the relevant issue was whether G required accommodation and that there could only be one answer to that question” was the wrong question.

61. On this appeal, Southwark maintains the submission it made successfully before the judge and presented the same skeleton argument.

62. On behalf of G, on the other hand, Mr Ian Wise submits that it is the Children Act regime which takes precedence over the Housing Act regime and that on the facts of this case, which in critical part are common ground, Southwark’s decision (that G only required help not accommodation) was irrational or perverse and betrayed a mistaken understanding of its responsibilities or an attempt to side-step them. Those submissions were advanced as part of his grounds of appeal.

63. In Lord Justice Pill’s judgment dated 14 December 2007, with which Lord Justice Pumfrey agreed, permission to appeal was given “generally”, on the basis that an important point was raised on the scope of section 20 and the concern expressed in the jurisprudence that local authorities should not be permitted readily to side-step their section 20 obligation.

The jurisprudence
64. In Southwark London Borough Council v. D [2007] 1 FLR 2181 the court of appeal held that D had been provided with accommodation under section 20(1) and rejected Southwark’s argument that it had merely provided help towards facilitating a private fostering arrangement. The furthest this court went was to say, in the judgment of Lady Justice  Smith at para 49:

“We are prepared to accept that, in some circumstances, a private fostering arrangement might become available in such a way as to permit a local authority, which is on the verge of having to provide accommodation for a child, to ‘side-step’ that duty by helping to make a private fostering arrangement. However, it will be a question of fact as to whether that happens in any particular case.”

65. In R (H and others) v. Wandsworth, Hackney and Islington [2007] 2 FLR 822 Holman J was presented with three claimants who were unaccompanied asylum-seeking children. Their claim concerned their status after reaching the age of 18 as a former “looked after” child. The claims succeeded in the Wandsworth and Hackney cases, but failed in the Islington case – but only because in that case (B’s case) Islington either did not provide accommodation at all or, if they did, only did so for a very short while (and not for the 13 weeks necessary to constitute a child “looked after”). B had been assessed as requiring accommodation under section 20(1) (at para 89) but on the particular facts Holman J’s conclusion (at para 102) was to accept the submissions on behalf of Islington (see para 99): B had within a few weeks joined other youngsters in private rented accommodation, and all that Islington had done for that purpose was to provide help with a deposit. Holman J said (at para 103):

“There is clearly a factual spectrum between undoubted provision of accommodation at one end, to mere or incidental help with accommodation at the other. At the first end of the spectrum, a social services department may actually house a person rent-free in accommodation which they actually own. At the other end of the spectrum, they may merely provide practical assistance by introducing a person to a private landlord and perhaps help with completing the necessary documents. The facts of the Southwark LBC v D case fell within that spectrum, but did not involve the local authority providing accommodation on a continuing basis. In my view, the facts of the Islington case fall towards the other end of the spectrum and on the other side of the line.”

66. In the present case Southwark relies on the Islington case (see its decision letter). However, I do not see how Islington assists it. In that case the section 20(1) duty had arisen and had been acknowledged by Islington as doing so, but in the event matters had swiftly taken a different turn. In the present case, Southwark had refused to acknowledge G as requiring accommodation on the basis that it could pass him over to the housing department for it to provide accommodation to him, which is what it did, as a priority need applicant. The cases are very different. In the present case there is every sign of Southwark seeking to “side-step” its section 20 duty by leaving the provision of accommodation to its housing department under the Housing Act regime. In the Islington case, Islington acknowledged its Children Act duty, but in the event any accommodation it provided was only very short-term before the claimant there had fixed up his own accommodation. 

67. On the contrary, it is in his remarks in the other two cases, Wandsworth and Hackney, that Holman J provides greater illumination for the present case.  In the Wandsworth case, a section 20(1) duty arose on the facts, but the claimant there did not want and was not assessed as needing anything other than accommodation.  Wandsworth’s policy was to provide accommodation under section 17 of the Children Act to children who needed accommodation but did not need to be looked after, and under section 20 to those who needed both accommodation and looking after in respect of other social services. It purported to give the claimant in its case, H, a choice between section 17 or section 20 accommodation and claimed that he chose the former. Holman J said:

“53…It is not in issue in the Wandsworth case (unlike the Islington case when I come to it) that the local authority did provide accommodation to the claimant. The whole issue is, as I said at the very outset, whether the local authority can determine or specify that they did so in exercise of the power under section 17 when, on the facts of the case, they were also under a duty to so under section 20(1). In my view…they cannot.

54. I agree with Mr Sheldon that before a local authority are under a duty under section 20(1), a number of judgments have to be made, as identified by Mr Sheldon. Those judgments are, in the first instance, for the local authority themselves to make, although in the event of challenge they might fall to be made by a court. However, in making the judgments the local authority must act rationally and cannot distort their judgments so as to squeeze out the operation of section 20(1)…

57. In my view, the approach of the majority of the House of Lords in G v Barnet in the various passages which I have already quoted does require and have the effect that, if a local authority do provide accommodation for a child in need, and if on the facts a duty to do so did arise under section 20, then the local authority must be regarded as providing that accommodation under section 20 and not under section 17. This seems to me necessarily to follow from Lord Hope saying at paragraph 85 that section 17 contains a general duty owed to all children who are in need within their area ‘and not to each child individually’, and from his agreement at paragraph 91 with Auld LJ’s distinction between duties which are general and duties ‘which are particular’ and ‘governed by individual circumstances’…

58. As in the case of R v Bexley LBC ex parte B, a local authority cannot finesse away their specific or particular duty by claiming merely to act under a general one. Still less, in my view, can a local authority, when they are under a duty, finesse the duty away by claiming merely to exercise a power.”

68. Holman J went on, in relation to the LAC 13 guidance, to say this:

“64. The effect of these passages is that, in certain circumstances, the local authority may consider that what the child requires is not ‘accommodation’ (which would give rise to the duty under section 20(1)), but ‘help with accommodation’, which would not. If they then provide no more than help (eg some limited funding) then neither a duty under section 20(1), nor the statutory consequence of the child becoming a looked after child under section 22(1) arise. I do consider, however, that the guidance in the circular is confusingly rather than clearly expressed, and, in particular, that it comes very close to being wrong in some references to the child ‘not needing to be looked after’ and not ‘thereby taking him into the looked after system’. A local authority should decide whether the child requires to be provided with accommodation or merely needs ‘help with’ accommodation, without regard to the implications of his being or not being a looked after child.”

69. In the Hackney case, the assessment of the claimant (Barhanu) was that he required “support with accommodation” (and subsistence) but did not need any other social services support. The claimant was in fact accommodated by the local authority. “Support with accommodation” was equated with “help with accommodation”. The judge rejected that distinction by reference to Hackney’s assessment in that case. The facts bear some resemblance to our case (see paras 78/81). Holman J’s conclusion, however, gives Southwark no assistance. He said:

“82. On a true and fair reading, the analysis was identifying that this child, already assessed as a child in need, needed a range of support. Within the specific list, ‘accommodation’ is absolute and not qualified. It identifies him as needing – ie requiring – the provision of accommodation, and that is what Hackney did indeed provide…” 

70. R(S) v. Sutton London Borough Council [2007] EWCA Civ 790, 10 CCLR 615, was another case where the local authority contended that its obligations had been discharged by referring the child (after she emerged from a period of detention) to its HPU, as an exercise of mere “help with accommodation”. At first instance, Stanley Burnton J had held that Sutton had been entitled to conclude that the claimant did not appear to “require” accommodation because of her own expressed wishes and her own personal choice to accept accommodation in a hostel. However, this court concluded otherwise and considered that accommodation in the hostel had been provided pursuant to section 20(1). Hooper LJ (with whom Sir Anthony Clarke MR and Arden LJ for these purposes agreed) said this:

“40. There is now no dispute that, at least immediately before her release, the respondent had a section 20(1) duty to provide her accommodation as well as other related duties. It is the respondent’s case, accepted by the judge, that by the time she was released there was no longer such a duty, because J no longer appeared to require accommodation…

50. To put it another way, in this letter and the preceding letters, the respondent was seeking to ‘side step’ its duties under section 20(1) by having the appellant declare herself homeless and thus (hopefully) obtain state benefits with which she could ‘buy’ accommodation, in the first instance from a charity…

54. As to this, the offer of accommodation at Wayside paid for by the appellant out of state benefits (which were paid to her because she was said to be homeless) was not, on the facts of this case, an offer which even if accepted, could result in the respondent evading its section 20(1) and related obligations…”

Hooper LJ added (at para 56) that he had found help in reaching his conclusions in the judgment of Holman J in Wandsworth, Hackney and Islington.

71. In R(M) v. Hammersmith and Fulham London Borough Council [2008] 1 WLR 535, the critical fact, as held by the House of Lords, was that M’s case had never been drawn to the attention of the council’s children’s services authority at all, which as a result had never carried out a Children Act assessment. It was impossible therefore to say that a section 20 duty had arisen: see Baroness Hale at para 44. It was on this ground only (see para 33) that the child’s emergency accommodation provided under section 188 of the Housing Act (which provides for an “Interim duty to accommodate in case of apparent priority need”) could not be said to be a provision of accommodation pursuant to section 20 of the Children Act. The child had never approached the children’s services department but had gone straight to the housing department. Nevertheless, albeit in obiter observations, Baroness Hale (with whose speech Lords Hoffmann, Scott of Foscote, Walker of Gestingthorpe and Brown of Eaton-under-Heywood agreed) made detailed comments on the relationship between the Children Act and Housing Act regimes. For instance, she said:

“15. Thus, in the longer term, the Children Act duties supersede the Housing Act duties towards a 16 or 17 year old young person. A local housing authority could not be satisfied that a 16 or 17 year old was in priority need for the purposes of section 193(1) of the 1996 Act if they were satisfied that the local children’s authority owed a duty to accommodate that young person under the 1989 Act. But the interim duty in section 188 might arise where the housing authority had “reason to believe” that a 16 or 17 year old was in priority need and did not yet know whether or not the Children Act duties were known…”

72. Baroness Hale went on to demonstrate how the 2006 Homelessness Code of Guidance for Local Authorities in cases of uncertainty concerning a 16 or 17 year old requires a housing authority to contact the relevant social services authority, and calls for a framework for joint assessment to be established. She also quoted from the Framework for the Assessment of Children in Need and their Families (Department of Health, 2000) and continued –

“31. Thus the statutory guidance given to both housing and social services departments stresses the need for joint protocols for assessing the needs of homeless 16 and 17 year olds. This is needed, not only to avoid a person being passed from pillar to post, but also to ensure that the most appropriate agency takes responsibility for her. The 2002 Priority Need Order clearly contemplates that, if the criteria in section 20 of the 1989 Act are met, social services rather than housing should take the long-term responsibility. 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 the 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.”   

 73. Baroness Hale also considered the jurisprudence which has been put before this court in this case, for the submission that a local authority could not avoid its obligations under the Children Act by putting a different label on what it had done: see at paras 37/41. She concluded:

“42. It is not necessary, for the purpose of deciding this appeal, to express a view on whether any or all of these cases were rightly decided. For my part, I am entirely sympathetic to the proposition that where a local children’s services authority provide or arrange accommodation for a child, and the circumstances are such that they should have taken action under section 20 of the 1989 act, they cannot side-step the further obligations which result from that duty by recording or arguing that they were in fact acting under section 17 or some other legislation. The label which they choose to put upon what they have done cannot be the end of the matter. But in most cases that proposition was not controversial. The controversy was whether the section 20 duty had arisen at all.”

Discussion and conclusion
74. In the light of this material it is now possible to come to my conclusions with relative speed. In this case there is no problem because a child went straight to housing and never came to the attention of the children’s services department. There is no problem because the children’s services department never assessed a child. There is no problem because a child, when consulted pursuant to section 20(6), expressed a wish not to be looked after at all. There is no problem because of some private arrangement being arguably in question, such as a private fostering arrangement, or privately acquired accommodation. What has happened is that the children’s services department, having assessed G, has sent him off to the HPU, to the housing department, on the basis that it would provide him with the accommodation which he needed, and as a matter of priority. It did so on the basis of an assessment which stated that “Housing is perhaps the primary issue in [G’s] case” and that “the primary needs identified here for [G] relate to Housing…” Even though G was referred to in the assessment as quite a resourceful teenager, who had been able to find temporary accommodation with friends for 1-2 months, (ie while he sofa-surfed), nevertheless 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…” Hence the assessment’s recommendation not only that the need for “longer-term accommodation” should be provided “by Southwark HPU” but that his other needs should be addressed by “referrals to other support agencies” so as to work on “the social, emotional and practical issues identified in this assessment”. On referral to the HPU, G was in fact provided with accommodation on the basis that he was in priority need, or at any rate apparently so. He has been provided with accommodation for the 13 week period which would entitle him now to be regarded as a former “looked after child”, if such accommodation had to be treated as having been provided pursuant to section 20(1). It is common ground that, if Southwark had a section 20(1) duty in such circumstances, this court would be entitled to declare that G should now be dealt with as a “former relevant child”.

75. I regret that I am therefore unable to see the matter as Longmore LJ and Pill LJ see it. If one addresses the decision letter or the arguments and submissions made by or on behalf of Southwark, it seems to me to be plain that Southwark has attempted to say that it appears to it that G does not “require” accommodation because it can be provided to him by the housing department. It is only in such circumstances that what is said to be needed by G is “help with accommodation” rather than the provision of accommodation itself. It has in truth been recognised that G requires accommodation, but because it is said that that can be provided by the housing department, therefore it is said that all that G needs from the children’s services department is “help” in referring him to the HPU. However, that is, for all the reasons discussed in the jurisprudence which in my judgment is clearly helpful to G, either a side-stepping of Southwark’s obligations, or perhaps proceeds from a lack of understanding about their obligations. For instance, the argument has been addressed that the Housing Act regime takes precedence over the Children Act regime. That, however, is in my judgment incorrect, as seems plain on the wording and history of the statutes themselves, but has in any event been confirmed by Baroness Hale in Hammersmith and Fulham.  Moreover, in Wandsworth, Hackney and Islington Holman J, applying the analysis in R v. Barnet, has demonstrated that, where it applies, the section 20(1) specific duty takes precedence over the general powers or duties in section 17. Holman J’s analysis has been well treated in subsequent cases, including in this court and the House of Lords.

76. It appears to me that Longmore LJ has come to a different conclusion because he regards the local authority as having a broad discretion, for the purposes of section 20(1) and the question whether or not the child “appears to them to require accommodation”, of deciding not so much that question but rather the broader one of whether or not the child appears to them to be in need of being “looked after”: see paragraphs 27/28 above. This ties in with passages in the LAC 13 guidance and in Mr Brims’ assessment to which prominence has understandably been given at paragraphs 4, 19 and 25 above. Therefore, it appears to be suggested that in the case of a resourceful teenager of 17, his need for accommodation, however genuine it appears to be for the purposes of the three situations provided for in section 20(1), can be dealt with merely by providing “help” towards the acquisition of accommodation provided by the housing department under the Housing Act regime. Thus, it is said, Southwark’s view of the matter, that “help” is all that is needed, not “accommodation” itself, is a legitimate response.

77. In my respectful judgment, however, that is not the case. The test under section 20(1) is not the broad test of whether the child in question needs to be “looked after”, but the much narrower test of whether the child appears to require accommodation as a result of finding himself alone in any of the three situations set out in that sub-section. The need for accommodation in those settings is the test for taking the child into the looked after system. In this respect section 20(1) can be compared, for instance, with section 20(3), where the local authority has a somewhat wider discretion (“whose welfare the authority consider is likely to be prejudiced”). Similarly, section 20(4) gives to the local authority a discretion (together with a power rather than a duty) to provide accommodation “if they consider that to do so would safeguard or promote the child’s welfare”. In neither of those sub-sections, however, is it a statutory ingredient of the local authority’s powers or duties that the child should have found himself alone (to gloss thus the effect of the three triggering events under sub-section (1)). In Wandsworth, Hackney and Islington Holman J rejected the argument: it was essentially the argument addressed in the Wandsworth case itself (at para 53), but rejected; it was also an argument sought to be supported by reliance on a passage in the LAC 13 guidance quoted by Holman J at para 63 but commented on by him adversely at para 64 of his judgment (see at para. 68 above).

78. Moreover, it is not an argument, so far as I understand Mr McGuire’s submissions, which has been addressed to us. Indeed he accepted in this respect that it was inaccurate for Southwark to refer in its decision letter to “section 20 accommodation” (as in the phrase “he is not in need of section 20 accommodation”) with its overtones of a kind of accommodation to meet the needs of section 20 or the “looked after” regime. Rather his argument is that Southwark was entitled in its discretion to say that G did not require accommodation, but only help with accommodation. Of course he required help with accommodation, but I fail to see how, on the assessment and on the facts, it is possible to say that he did not require accommodation, when that was the primary need identified in the assessment and it was to provide for that need that G was referred to the HPU. I observe in passing that Southwark did not say that G was not in need of accommodation, only that he was not in need of section 20 accommodation. But it is common ground that he was in need, within the area of Southwark, and lacked or, as I would say, needed or required, accommodation as a result of an event within section 20(1)(c).

79. Longmore LJ suggests that Southwark has decided that G is a resourceful teenager who is capable of sourcing accommodation provided he is given assistance to do so (para 28 above). I am unable to find that reasoning in the decision letter. The letter begins by quoting Mr Brims’ assessment that “accommodation provided by Southwark HPU and referrals to other support agencies (such as Connexions) will be sufficient at this time in addressing the social, emotional and practical issues identified in this assessment”. Apart from its “help” not “accommodation” theme, the letter goes on to state that “[G] has no identified need for social services support, and his needs can be satisfactorily met through provision of housing and referrals to other support agencies”. It is impossible to square this with the assessment report which speaks of “[G] to attend Southwark HPU with a view to obtaining accommodation through this service” and reference to “Case to be transferred to Family Resource Team (South) to provide [G] with ongoing social work support…Family Group Conference to be explored…Family Resource Team worker to link in with prospective college and provide any support necessary for [G’s] enrolment…” as well as reference to “Connexions”, a unit which assists in obtaining employment. Neither is the decision letter’s statement that “the circumstances of the Islington case are analogous to your client’s” understood. As shown above, the Islington case is in no way comparable: on the contrary, Holman J’s reasoning in the linked cases of Wandsworth, Hackney and Islington goes very much against Southwark, reasoning which has borne fruit in subsequent cases and dicta. Subsequently to the decision letter, the skeleton arguments provided to the Administrative Court and to this court have principally stressed the precedence to be given to the Housing Act regime in matters of the provision of accommodation to 16/17 year olds in (priority) need.

80. Finally, I briefly mention the passage in the judge’s judgment relating to the limited basis of Mr Wise’s attack on the legality of the decision (see, for example, Longmore LJ at para 14 above). I find this passage puzzling. The complaints of illegality, and that there could be only one answer, and that the decision was irrational, are difficult to disentangle. Permission to appeal was given generally on the grounds of appeal which are before us and which were properly deployed in argument. I see no pleading point in this case, nor has Mr McGuire taken one.

Conclusion
81. In sum, I would allow the appeal and make the declaration sought.

Lord Justice Pill:
82. Longmore LJ and Rix LJ have recited the facts and the statutory background.  Two issues appear to me to arise.  The first is the meaning of the expression “who appears to them [the local authority] to require accommodation”, in section 20(1) of the Children Act 1989 (“the 1989 Act”).  The second is whether, on the construction they advocate, Southwark were entitled to conclude that G did not require accommodation within the meaning of the section. 

83. Section 20(1) provides:

“(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 –
(d) there being no person who has parental responsibility for him;
(e) his being lost or having been abandoned; or
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. ”

84. Southwark were required to assess, under section 20(1), whether G required accommodation.  If it is required, within the meaning of the section, it must be provided and section 20 of the 1989 Act takes precedence in that sense.  The assessment, Mr McGuire submits, permits a distinction between a child requiring accommodation and one requiring only help with accommodation.  In their decision letter of 20 September 2007, Southwark stated that G (who was approaching 18 years of age and assessed as being resourceful) only required help with accommodation.  He did not have regular accommodation but, with help if necessary, he could be expected to obtain it.  Help potentially available to someone in G’s position has been described in the judgments.

85. For the duties under the 1989 Act to arise, it has to be established that G “requires accommodation” in section 20 terms.  That is a discrete requirement the meeting of which does not necessarily follow from having established, as in this case, that the requirements of one of the paragraphs (a) to (c) of section 20(1) has been satisfied. 

86. In R (M) v Hammersmith and Fulham LBC [2008] 1 WLR 535, Baroness Hale analysed the scope of the section 20 duty and its relationship with other powers and duties under the 1989 Act.  Baroness Hale accepted that the criteria in section 20(1) must be satisfied for the duty to arise.  Social Services rather than housing should take the long-term responsibility “if the criteria in section 20 of the 1989 Act are met” (paragraph 31).  Further obligations cannot be side-stepped if “the circumstances are such that they [the local authority] should have taken action under section 20 of the 1989 Act” (paragraph 42).  “The controversy was whether the section 20 duty had arisen at all” (paragraph 42).  Moreover, the Homelessness (Priority Need for Accommodation (England) Order 2002), on which Mr Wise for the appellant relies, operates, in so far as is material, only “to a person to whom a local authority owe a duty to provide accommodation under section 20 of [1989 Act]” (paragraph 3). 

87. I agree with Longmore LJ (paragraph 23) that Holman J’s conclusion in R (H & Others) v Wandsworth, Hackney and Islington London Borough Councils [2007] EWHC 1082 Admin, [2007] 2 FLR 822, that the guidance in Circular LAC (2003) 13 (which was before the House of Lords in M) was not unlawful.  As cited in paragraph 19(5) of the judgment of Longmore LJ, the Circular provides, amongst other things:

“However, after taking account of the child’s wishes as required by section 20(6), the local authority might judge that the child is competent to look after himself.  In such circumstances it would not need to assume the whole responsibility for accommodating him under section 20 (and thereby taking him into the looked after system).  In such cases section 17 may be used for support, including help with accommodation, without making the child a looked after child.”

88. I agree with Longmore LJ’s reasoning at paragraph 21.  Not every young person who satisfies the other criteria in section 20(1) must be held to require accommodation within the meaning of the section.  The local authority are entitled to conclude, in the case of some young people, that they are sufficiently capable and resourceful, or in such social circumstances, that they can find their own accommodation, if necessary with help provided by the local authority under other statutory powers. 

89. I agree with Holman J in H and Others, at paragraph 103, (cited by Rix LJ at paragraph 65, that there is a “factual spectrum” the position of the applicant on which has to be assessed by a local authority.  Southwark conducted such an assessment.  In making their assessment, I do not consider that Southwark treated the existence of Housing Act powers as a justification for avoiding a section 20(1) duty.    With Holman J, I accept that the section 20(1) duty takes precedence over general powers or duties otherwise present but only “where it applies” (cited by Rix LJ at paragraph 75). 

90. The second issue arises if Southwark were entitled to make the distinction already considered. Mr Wise’s submission is that, on the wording of their own assessment, Southwark found that G required accommodation, in the section 20(1) sense, and that their decision to the contrary was irrational.  I prefer to describe the issue, fairly raised, as one of the construction of the assessment of 18 September 2007 and the decision letter of 20 September. 

91. Mr Brims’ assessment was full, frank and helpful to a decision maker.  I agree with the analysis of Longmore LJ, at his paragraphs 25 to 27, of the contents of the assessment, the contents of which he had summarised at paragraphs 4 and 5.  The expression “provision of housing” was used but, read as whole, the assessment permitted, and in my view pointed towards, the conclusion that, on a section 20(1) analysis, what is required is help with accommodation.  The decision maker was entitled, on the available material, to conclude that G did not appear to require accommodation under section 20(1).  Southwark have not, in my view, side-stepped their duties. 

92. I agree with Longmore LJ that the appeal should be dismissed. 

ORDER
1. Appeal dismissed.

2. Costs incurred by respondents be determined by a costs Judge.

3. The appellant (a party in receipt of services funded by the Legal Services Commission) do pay the respondents costs on a standard basis to be assessed pursuant to section 11(1) of the Access to Justice Act 1999, not to be enforced against the appellant without an assessment of his ability to pay.

4. A costs Judge do determine whether costs are payable by the Legal Services Commission - taking into account the fact that these were proceedings in the Court of Appeal which were lost by the appellant and won by the respondent.

5. There be a detailed assessment of the costs of the appellant which are payable out of the Community Legal Service Fund.

6. Permission to appeal to House of Lords be refused.