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||Neutral Citation Number:  EWHC 1082 (Admin)
||CO/6068/2006, CO/6857/2006, CO/10213/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
||23 April 2007
B e f o r e :
MR JUSTICE HOLMAN
||(1) LONDON BOROUGH OF WANDSWORTH
||(2) LONDON BOROUGH OF HACKNEY
||(3) LONDON BOROUGH OF ISLINGTON
||SECRETARY OF STATE FOR EDUCATION AND SKILLS
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MR STEPHEN KNAFLER (instructed by (1) Bennett Wilkins (2) Fisher Meredith and (3) Harter and Loveless) appeared on behalf of the CLAIMANTS
MR CLIVE SHELDON AND MISS JUDY STONE (JUDGMENT ONLY) (instructed by Wandsworth LBC) appeared on behalf of the FIRST DEFENDANT
MISS KAREN STEYN AND MS HARINI IYENGAR (JUDGMENT ONLY) (instructed by Hackney LBC) appeared on behalf of the SECOND DEFENDANT
MR BRYAN MCGUIRE (instructed by Islington LBC) appeared on behalf of the THIRD DEFENDANT
MR STEVEN KOVATS (instructed by Treasury Solicitor) appeared on behalf of the INTERESTED PARTY
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE HOLMAN:
Introduction and the issue
- Despite the precise terms of the orders for directions, three cases have effectively been heard together. They are unconnected on their facts, but involve a common question of law: can a local authority who do provide accommodation to a lone child in need determine or specify that they do so in exercise of a power under section 17 of the Children Act 1989 (the Act) when, on the facts of the case, they are also under a duty to do so under section 20 of that Act?
- The relevance and significance of the issue on the facts of these three cases is that it affects the classification of the child concerned at the moment he/she attained 18. This in turn may have a considerable effect on what services the local authority (or in one of the cases, the National Asylum Support Service) must or may provide to him/her between the ages of 18 and 21 or even, for some purposes, 24.
- I will for convenience call them the Wandsworth, Hackney and Islington cases respectively. In the Wandsworth case, permission had already been granted to apply for judicial review and it was treated as the lead case. I hereby grant permission to apply in the Hackney and Islington cases.
The statutory framework
- Several of the relevant provisions have been amended and I quote them in their current form. They all fall within Part III of the Act, headed: "Local authority support for children and families". The contrast is with Part IV under which a local authority, empowered by statute or a court order (eg a care order), can impose outcomes on children. Part III is principally to do with the powers and duties of a local authority to offer and provide services to and for children; but, and this is important to an understanding of this case, no support or service can be imposed or foisted upon a child if, being of sufficient capacity, he does not wish to accept or receive it. (Section 25 which concerns secure accommodation is a very significant exception to the generality of the above, but not germane to the present cases.)
- So far as is material section 17 provides as follows:
"(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.
(2) For the purpose principally of facilitating the discharge of their general duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.
(3) Any service provided by an authority in the exercise of functions conferred on them by this section may be provided for the family of a particular child in need or for any member of his family, if it is provided with a view to safeguarding or promoting the child's welfare.
(4A) Before determining what (if any) services to provide for a particular child in need in the exercise of functions conferred on them by this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare—
(a) ascertain the child's wishes regarding the provision of those services; and
(b) give due consideration (having regard to his age and understanding) to such wishes of the child as they have been able to ascertain.
(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 ..."
- So far as is material, section 20 provides as follows:
"20. 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—
(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.
(6) Before providing accommodation under this section, a 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 able to ascertain."
- I summarise and paraphrase, rather than quote, sub-sections (7) and (8) of section 20. Essentially (and very importantly) these sub-sections prevent a local authority from accommodating a child under Part III against the will of a parent (compare the compulsion under Part IV). What is relevant to the argument in the present cases is that sub-section (11) then provides:
"(11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section."
- Section 22 is headed "General duty of local authority in relation to children looked after by them", and so far as is material provides as follows:
"(1) In this Act, any reference to a child who is looked after by a local authority is a reference to a child who is—
(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970 apart from functions under sections 17, 23B and 24B.
(3) It shall be the duty of a local authority looking after any child—
(a) to safeguard and promote his welfare; and
(b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case.
(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a) the child;
regarding the matter to be decided.
(5) In making any such decision a local authority shall give due consideration—
(a) having regard to his age and understanding, to such wishes and feelings of the child as they have been able to ascertain; ... "
- Section 23 is headed "Provision of accommodation and maintenance by local authority for children whom they are looking after", and so far as is material provides:
"(1) It shall be the duty of any local authority looking after a child—
(a) when he is in their care, to provide accommodation for him; and
(b) to maintain him in other respects apart from providing accommodation for him.
(2) A local authority shall provide accommodation and maintenance for any child whom they are looking after by—
(a) placing him (subject to subsection (5) and any regulations made by the Secretary of State) with—
(i) a family;
(ii) a relative of his; or
(iii) any other suitable person
on such terms as to payment by the authority and otherwise as the authority may determine (subject to section 49 of the Children Act 2004);
(aa) maintaining him in an appropriate children's home;
(f) making such other arrangements as—
(i) seem appropriate to them; and
(ii) comply with any regulations made by the Secretary of State."
- I do not propose to set out verbatim any of sections 23A to 24D, nor paragraph 19B of Schedule 2 to the Act. They are very important to the case, but not to the issue of law which has arisen, although I will briefly have to make further reference to paragraph 19B in relation to the Islington case.
- These provisions have the effect that a child who has been looked after for more than a prescribed period of 13 weeks when he attains the age of 18 becomes on that date a "former relevant child". The local authority then have a range of powers and duties under the leaving care provisions to prepare a pathway plan and appoint a personal adviser for him, and to provide a range of services and support, including accommodation for him until the age of 21 or, in some cases (see section 24B), 24. It is those services, or some of them, that two of these claimants seek to access. Their key to doing so is to establish that they were, immediately before they attained the age of 18, "looked after" children pursuant to section 22(1)(b) because they were being provided with accommodation by the relevant local authority in the exercise of social services (but not housing) functions, in particular those under the Act. However, section 22(1)(b) excludes functions under section 17, and accordingly the claimants have to establish that they were provided with accommodation in exercise of functions under, and pursuant to the duty in, section 20(1).
- In the Hackney case, if the claimant can establish that he was a looked after child, the National Asylum Support Service (NASS) who, in their jargon, dispersed him to Coventry shortly after he attained 18, would reaccommodate him, as he wishes, in London.
- In each case, the respective local authority reasonably and fairly say that they were acting in accordance with the "Guidance on accommodating children in need and their families" in the Local Authority Circular No LAC(2003)13 issued by the Department of Health on 2 June 2003. There is one counsel, Mr Stephen Knafler, for all three claimants, and he submits that that circular is erroneous in its guidance as to the law. The Secretary of State for Education and Skills (who now has relevant ministerial responsibility) was made an interested party in the Wandsworth case, and I heard submissions from Mr Steven Kovats on his behalf. Mr Kovats was at pains to distance himself from the facts of any of the three cases, but submitted that the guidance is correct and lawful.
The facts of the Wandsworth case
- As it was the lead case, I will illustrate the issue by a summary of the facts of the Wandsworth case, although neither of the other cases is entirely on all fours.
- All three claimants arrived in England as unaccompanied asylum-seeking children. This claimant is Iranian. He travelled to England via Turkey in a lorry and arrived on 10 August 2005, the day before his 17th birthday. He made his way to London and claimed asylum. Initially he slept rough in parks or stations. The Home Office granted him discretionary leave to remain for one year. His application for an extension and his underlying asylum application have not yet been determined.
- On 16 August 2005, the immigration office in Croydon sent him to Wandsworth. The London Borough of Wandsworth (Wandsworth) temporarily accommodated him while they assessed him, applying their "Protocol for services from the asylum team ... for unaccompanied minors", which is clearly a policy document. This provides, amongst other matters, that Wandsworth will carry out an initial assessment within seven days of referral; will "determine what support services the young person is accessing and what further support is needed"; and will:
"explain the different types of support to young person under sections 17 and 20 of the Children Act 1989 and assess whether they meet the criteria for section 20 services. Whether a young person meets the criteria for section 20 is based on their abilities to manage within appropriate accommodation without the full 'care' provision that is part of section 20. LAC(2003)13 gives guidance on this. '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 ...' In these circumstances, the young person's views would be sought but LAC(2003)13 advises ... 'However after taking account of the child's wishes as required by section 20(6), the local authority might judge the child competent to look after himself. In such circumstances, it would not need to assume the whole responsibility for accommodating him under section 20'. The young person is to be advised at this point of the support services available under section 17 and the different level of intervention under section 20."
The protocol then describes a further process "in the event of the assessment determining that section 20 is required".
- A first initial assessment record included the information that "there is no one in this country that has parental responsibility, and Wandsworth Social Services are the responsible local authority to ensure that his basic needs are met", and that he "does not have any direct or extended family member in the UK". In line with the protocol, he was given on 6 September 2005 a sheet of paper in English with rather small and close-spaced type, which begins:
"This is a copy of information that distinguishes between sections 17 & 20 of the Children's [sic] Act 1989. A copy should be given to the young person."
In summary, it describes that "section 17 can provide for unaccompanied minors two styles of accommodation": (1) Bed and Breakfast hotel accommodation, which does not offer any "extra" support. "Extra" support is then described; or (2) London Asylum Seekers Consortium Accommodation ... generally a shared house or unit ... There will be no allocated social worker and no extra support from social services. However, an allocated key worker will be available to offer some basic help ...
- Under a heading "section 20", the document continues:
"Section 20 accommodation not only offers accommodation, it offers additional support and monitoring to the unaccompanied minor ... an individual care plan ... Essentially section 20 has the ability to place a blanket of support services and networks around a young person ..."
The document does make clear that:
"Furthermore, if an unaccompanied minor has been in section 20 accommodation supported by Council for more than 13 weeks, then they are eligible for leaving care services after they reach the age of 18. This means that Council is still responsible for their education, health, accommodation, and emotional welfare up until they reach the aged [sic] of 24."
- There is within the document a fair amount of jargon and some metaphor (eg "a blanket of support"), and one can only speculate as to how it all sounds in translation to a young person whose culture is very different from our own.
- On 6 September, the claimant had a meeting with a social worker at which the document was given to him and at which, it is said, the different types of accommodation available under sections 17 and 20 were explained to him. The claimant says in his witness statement that he did not really understand the document. He had never had to deal with that sort of thing before. The interpreter was Afghani and not Iranian. There was a difference in accent and some of the words. He thought the interpreter said that if he chose section 20 he would be sent to a hotel, ie bed and breakfast, which he did not want. He was very confused and really did not understand what was going on. Mr Clive Sheldon, on behalf of Wandsworth, submitted that the statement of the claimant is not worthy of belief. I can only say that it rings very true to me.
- On the basis of these events, the current social worker (but I stress that she was not involved in any way at the time in 2005), Ms Karina Pawsey, says this:
"[The claimant] stated that he would like to remain in the accommodation in Enfield and to receive financial assistance, but that he did not want to be seen by someone regularly. [The claimant] was also concerned that he was going to be 'kicked out' of his current accommodation and wanted to remain there until he received a response from the Home Office as to his asylum claim ... In the circumstances, this amounted to a wish for accommodation within option (ii) (S17 accommodation), which the Council acceded to. [The social worker] explained to [the claimant] that if he wished to discuss this matter further or if he changed his mind, then he should make an appointment with [the social worker] to go over it again. [The claimant] stated that he was happy, as he did not want someone to see him every day."
- The local authority thus say that, on 6 September 2005, less than a month after his arrival here, this just 17 year-old, little educated, non-English speaking Iranian boy, whose own use of English is described in a later report as "minimal, which impacts on his ability to express himself independently", assisted by an interpreter whose language was not exactly his own, expressed a wish for accommodation under section 17, which the council acceded to.
- The service manager, Mr Michael Mannion, says in his statement that:
"Assessment meetings are undertaken with an interpreter and the worker explains the difference between section 17 and 20. In addition, the assessment is required to conclude, based on the young person's needs, what level of support and intervention should be provided to 16-18 year old young unaccompanied minors, who present for assistance to this department. This approach is in accordance with accepted practice for this age group under the National Assessment Framework and the LAC guidance (2003)13.
A young person of this age group would need to be exhibiting a high level of need to require the more intensive supervision and assistance of section 20, where the authority would become the corporate parent. The services available would include a foster placement, residential unit and any other additional service required. It would be provided to young people who are assessed as having high levels of need for example self harming, mental health difficulties or through the experience of family breakdown are unable to care for themselves independently in the community. From the information that I have seen, and the discussions that I have had with social workers who have had dealings with him, [the claimant] is not in this category. In determining whether arrangements should be provided under section 17 or section 20, we also take into account the young person's actual preference for the different kinds of support and assistance that would be available under either section."
- Under a heading "Analysis of information gathered during the initial assessment", the initial assessment report continued:
"[The claimant] arrived recently in London with no family or social support. He has been provided with supported accommodation to introduce him to services in the local area where he resides. [The claimant] appears willing and able to access support from his key worker and people he has met in the community as he accesses health and educational services ...
On 6 September 2005, I went through the different type of accommodation options available to [the claimant] as an unaccompanied minor. A Kurdish/Sorani interpreter was present for this meeting and read through his choices.
The three options under the Children Act 1989 are as follows:
Under section 17 there are two choices:
(a) Unsupported accommodation that provides him with B&B accommodation and a weekly allowance made up of cash.
(b) Semi supported accommodation that allocates a key worker to assist in registering with doctors, dentists and colleges and prepares young people for full independent living.
Under section 20 the option is:
(c) Fully supported accommodation that may be foster care with an allocated social worker to monitor him on a more regular basis with a structured plan for his future.
[The claimant] said that he would like to remain in the accommodation that he is currently provided with. He does not want to be moved and he does not want to be seen by someone regularly.
• Asylum seem to continue providing supported accommodation and financial assistance to [the claimant] whilst he is an asylum seeker without means to public funds.
• Social Services to continue to monitor [the claimant's] basic needs and assistance provided on request."
I mention that the references in that passage to unsupported, semi-supported and fully supported accommodation are jargon and not found within the Children Act 1989 or any relevant subordinate legislation.
- Further ticked boxes on the form are marked to answer "yes" to his being a child in need as defined in the Children Act 1989; and a child whose vulnerability is such that he is unlikely to reach or maintain a satisfactory level of health or development without the provision of services; and that the required further action is "provide accommodation".
- A body of correspondence between the local authority and solicitors on behalf of the claimant in early 2006 reveals that, despite every argument from the solicitors, and at a time when the claimant was being continuously provided with accommodation by Wandsworth but was then still not 18, Wandsworth resolutely maintained that the accommodation and any other support was being provided under section 17 only, and that (see Wandsworth's letter of 1 February 2006) the claimant "... made an informed decision" to opt for section 17 support. Wandsworth accordingly deny that the claimant was a looked after child when he attained the age of 18, and deny that he is entitled to any of the post-18 services and support to which he would be entitled if he was provided with accommodation under section 20.
The argument and submissions
- Mr Knafler submitted that it is not open to a local authority to make this sort of discretionary choice between the two sections, especially when so much may depend for so long upon which section is selected. He submitted that, by the language of section 20(1), the duty automatically arises if each of the ingredients of that sub-section exist. The ingredients are (i) that the person in question is a child and is a child in need as defined in section 17(10). This claimant was, for Wandsworth so assessed him; and (ii) that he is in their area. It is not in dispute that he was; and (iii) that he appears to them to require accommodation. He did, for they so assessed him; and (iv) that he appears to them to require it as a result of one or more of the factors in paragraphs (a) to (c) of section 20(1). Although there is no statement to this effect, or ticked box in the assessment forms, Mr Knafler submitted that the claimant clearly fell within paragraph (c), as the persons who had been caring for him, namely his parents in Iran, had been prevented by his asylum flight from providing him with suitable accommodation or care (section 20(1)(c) says "whether or not permanently and for whatever reason"). So Mr Knafler submitted, and I agree, that if Wandsworth had applied their mind to the question, it could not have failed to appear to them that he required accommodation "as a result of" the reason in paragraph (c). He drew my attention to the words of Lord Hope in R(G) v Barnet London Borough Council  2 AC 208 at paragraph 100, where he said that the widest possible scope must be given to section 20(1) and, specifically, section 20(1)(c) and the words 'for whatever reason'.
- Mr Knafler's essential submission is that section 20(1) gives rise to a duty, which it clearly does, by use of the word "shall"; that that duty is a specific duty, namely to "provide accommodation"; and that if the local authority do then actually provide accommodation, they must necessarily do so in discharge of that duty and not merely or alternatively in exercise of the power to provide accommodation under section 17(6), nor the very general duty under section 17(1).
- The duties under section 17 have long been characterised as "target duties", and at paragraph 80 of the Barnet case Lord Hope said that section 17(1) "is concerned with general principles and is not designed to confer absolute rights on individuals".
- At paragraph 85, Lord Hope said:
" ... the so-called 'general duty' in section 17(1) is owed to all the children who are in need within their area and not to each child in need individually. It is an overriding duty, a statement of general principle. It provides the broad aims which the local authority is to bear in mind when it is performing the 'other duties' set out in Part III ... "
- At paragraph 91, Lord Hope said:
"I think that the correct analysis of section 17(1) is that it sets out duties of a general character which are intended to be for the benefit of children in need in the local social services authority's area in general. The other duties and the specific duties which then follow must be performed in each individual case by reference to the general duties which section 17(1) sets out ... "
- Lord Hope then appears to agree with the distinction Auld J had made in an earlier case between those duties "which are general and those which are particular, and that the general duties are concerned with the provision of services overall and not to be governed by individual circumstances."
- Lord Millett and Lord Scott of Foscote each expressly agreed with the reasoning, or relevant part of the reasoning, of Lord Hope. At paragraph 114, Lord Scott of Foscote considered that the language of section 17(1) is "indicative of an overarching duty applying to a class rather than to individuals and of a 'framework' duty under the umbrella of which specific duties imposed by other statutory duties may from time to time come into existence in relation to specific children".
- He said at paragraph 113 that the language of section 17(1) provides "very infertile soil for the extraction of a targeted, specific duty owed to an individual child."
- Mr Knafler thus submitted that the duties under section 17(1) are general and not "particular" or specific to any individual child at all. But when a local authority actually provide accommodation to an individual, they must be doing so by reference to his individual circumstances, and if his individual circumstances do fall within section 20(1), that is the duty they must be discharging. There is then, he submitted, "a statutory chain". The child necessarily becomes a looked after child by the definition in section 22(1), and provided he has been looked after for more than the prescribed period of 13 weeks, that in turn, at 18, triggers the provisions of section 23A to 24D. The process is automatic.
- Mr Knafler submitted that there is some parallel with the decision of Latham J in R v London Borough of Bexley ex parte B, 31 July 1995. That case concerned duties owed to a person who was both a child and also severely permanently disabled. An issue arose as to whether the local authority were discharging the general duties owed under section 17 of the Children Act 1989 to the person as a child; or specific duties owed under the Chronically Sick and Disabled Persons Act 1970 to the person as a disabled person. At page 18E to G of the transcript supplied to me, Latham J said:
"The only conclusion which a reasonable authority could reach in that situation was that it was under a duty pursuant to section 2(1) of the Chronically Sick and Disabled Persons Act 1970 to provide practical assistance in his home. The respondents, insofar as they considered that they were simply exercising their general duties pursuant to the Children Act 1989 were wrong, and in breach of their duty under the Chronically Sick and Disabled Persons Act 1970."
- Mr Knafler submitted that there is simply no warrant at all in the Children Act for starting, as the protocol and policy of Wandsworth effectively does, from consideration of what services other than accommodation the child does or may require; passing through whether he therefore needs to be or should be a looked after child; and then concluding whether the accommodation should be treated as provided under section 17 or under section 20. He thus submitted that the process described in the brief extracts from the protocol quoted above, and the "three options" of unsupported, semi-supported or fully supported accommodation put to the claimant on 6 September 2005 and set out in extracts from the initial assessment quoted above, all represent an approach which is wrong and unlawful.
- The guidance in LAC13 followed amendments to the Children Act made by the Adoption and Children Act 2002, and which came into force on 7 November 2002 when that Act received Royal assent. The purpose of the relevant amendments was to reverse the effect of a previous decision of the Court of Appeal and to make plain that the powers under section 17 include a power, now made clear by amendment to section 17(6), to provide accommodation, and also that accommodation may (by virtue of section 17(3)) be provided not only for the child in question but his family. The circular accordingly and correctly says:
"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."
However, the circular continues:
"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. Before deciding which section of the Children Act 1989 provides the appropriate legal basis for provision of health or support to a child in need, a local authority should undertake an assessment ... 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 1989), 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."
Later, the circular says:
" ... 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.
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."
- Mr Knafler submitted that the circular, too, is wrong in that it imports, or appears to import, consideration of the other needs of the child than the need for accommodation, and also consideration of the wishes and feelings of the child, into a decision whether to provide accommodation under section 20 or section 17. He says in particular that the reference to "the presumption should be" in the second extract quoted above is wrong. It is not a question of presumption.
- The contrary argument of Mr Clive Sheldon on behalf of Wandsworth appropriately stresses that a local authority must have regard to the circular, and submits both that the circular is correct and that the policy and approach of Wandsworth on the facts of this case complied with the circular. Mr Sheldon focused in particular on section 20(6), and the requirement that "before providing accommodation under this section" [his emphasis], a local authority must ascertain the child's wishes and feelings "regarding the provision of accommodation" and give due consideration to them. Section 20(6)(b) uses the language "give due consideration", and that clearly contains a large measure of discretion. Since that discretion arises "before providing accommodation", Mr Sheldon submitted that it is inconsistent with the automatic duty under section 20(1) for which Mr Knafler contends.
- More generally, Mr Sheldon pointed also to the language of section 20(11) and the reference to a child who "agrees to being provided with accommodation under this section". He submitted, therefore, that both these sub-sections indicate a measure of input (section 20(6)) or agreement (section 20(11)) on the part of the child, and that the approach of Wandsworth correctly reflects the need for that input or agreement. He said that a child may, as indeed he may, object to the "regime" of being a looked after child, or may not wish to be a looked after child as he may thereby lose statutory benefits such as job seekers' allowance.
- Mr Sheldon submitted that, quite apart from sub-sections (6) and (11), section 20(1) itself contains many requirements for a local authority to make a judgment. Where identity or date of birth is unclear, they may even need to make a judgment whether the person is a child at all. Certainly they need to make a judgment whether he is a child in need; maybe whether he is within their area; and certainly whether he "appears to them" to require accommodation and, if so, whether it is "as a result of" one of the factors in paragraphs (a) to (c). Those factors themselves may require further judgments to be made -- for instance the word "suitable" where it appears in paragraph (c).
- As Mr Sheldon pointed out, in G v Barnet at paragraph 81 Lord Hope said that section 20(1) leaves "important matters to the judgment of the local authority". At paragraph 82 Lord Hope said:
"The discretion which is given by these provisions to the local authority is framed in various ways, but the result is the same in each case. Where a discretion is given, the child in need does not have an absolute right to the provision of any of these services."
- It does not seem to me, however, that it follows from the fact that "the child does not have an absolute right to the provision of any of these services", that if they do provide the service of accommodation, the local authority can necessarily choose the label (section 17 or section 20) under which they provide it.
- Mr Sheldon referred, further, to the highly discretionary range of choices within section 23 as to how the local authority must discharge their duty to provide accommodation, and in particular at section 23(2)(f) by "making such other arrangements as ... seem appropriate to them ..."
- He accordingly submitted that there must be read into section 20(6) that the local authority must ascertain the child's wishes and feelings, not merely regarding the provision of accommodation, but whether it should be accommodation "provided under this section" (viz section 20), and whether the child wishes to be a looked after child. He submitted that Parliament positively required and intended that the process which Wandsworth adopted in this case should be followed.
- On behalf of the Secretary of State, Mr Kovats similarly stressed the many parts of section 20(1) which require the exercise of a judgment, and the discretionary impact of section 20(6). He submitted that section 20(6) goes to, and requires ascertaining the child's wishes and feelings as to, not merely the type of accommodation offered (eg whether a flat or bed and breakfast, shared or unshared etc), but also whether accommodation is "required" at all, where the word "required" appears in section 20(1). Mr Kovats submitted that if and insofar as the argument of Mr Knafler is based on the premise that where an unaccompanied asylum seeking child with no accommodation of his own presents himself to a local authority, the criteria in section 20(1) are automatically met, that premise is false. It is false because it fails to give due weight to the words "appears to them to require accommodation" in section 20(1). It may appear to a local authority, and they may lawfully decide, that what the child requires is not "accommodation", but "help with accommodation". He submitted that there is a real difference between providing accommodation -- the phrase repeatedly used in section 20 -- and providing help or assistance to enable a child to secure his own accommodation. The local authority must have the flexibility to provide the most appropriate arrangements in the particular case, and it would be surprising if Parliament had intended a rigid approach which would impose obligations on local authorities which were onerous to the local authority and yet of no benefit to the particular child.
- Mr Kovats submitted that, on a careful reading of LAC13, that is what the guidance says. The second passage quoted above refers to a "decision about whether he should be provided with accommodation under section 20 (and therefore become looked after)", and that this is contrasted in that passage with "whether other types of services provided under section 17 of the Act are better suited to his circumstances". So the contrast there is between providing accommodation as such, which falls within section 20, and providing "other types of services ... under section 17".
- In the third passage quoted above, when read with care, the circular merely says that, in certain circumstances, "the local authority might judge that the child is competent to look after himself"; and in such circumstances section 17 may be used for support, "including help with accommodation" [his emphasis] without making the child a looked after child. The phrase "help with accommodation" appears also near the beginning of the second passage quoted above.
- However, Mr Kovats made plain that, in the view of the Secretary of State, if on the facts of the case a local authority do judge that a child in need within their area does appear to them to require accommodation as a result of one of the paragraphs (a) to (c), and do actually provide accommodation (in contrast to help with accommodation), then that accommodation is necessarily provided under section 20 (and so the child does become a looked after child) and not under section 17. The Secretary of State agrees that when the specific duty does arise under section 20, then the local authority cannot avoid the duty and any consequences which may flow from it by asserting that they are merely exercising the power and discharging their target duty under section 17. He refers to the judgment of Latham J in R v London Borough of Bexley ex parte B, quoted above.
- When pressed to express a view, Mr Kovats suggested, and indeed submitted, that the protocol of Wandsworth and the passage from the statement of Mr Mannion quoted above does not accord with either the guidance or the Act. The guidance clearly refers to the "presumption" being that a lone asylum seeking child falls within section 20, and treats the alternative of providing "help with accommodation" more as an exception. Mr Mannion's statement, however, grafts in a reference to the child: "would need to be exhibiting a high level of need to require the more intensive supervision and assistance of section 20 ..." This test does not appear in either the Act or the guidance and, as I understand it, Mr Kovats joins with Mr Knafler in submitting it is wrong.
- Before leaving the arguments of counsel, I mention that all three advocates placed some reliance on observations by Sullivan J in R(Berhe and Others) v Hillingdon London Borough Council and Secretary of State for Education and Skills  EWHC 2075. Although at first sight that authority seems directly in point, it is not, because all the claimants in question in that case had been looked after children before 7 November 2002 when sections 22 and 17 were amended, and it did not matter to that case whether the accommodation was provided under section 17 or section 20 (see paragraph 65 of the judgment). Although Sullivan J clearly assumed the correctness of the guidance (see in particular paragraphs 53, 74 and 75), the decision is not authoritative since, on the facts of that case, the correctness of the guidance was not put in issue. The issue instead was whether the local authority had provided accommodation at all.
Discussion and outcome in the Wandsworth case
- Having set out the submissions and competing considerations at considerable length, I will express my own conclusions more shortly. 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 do so under section 20(1). In my view, supported as I understand it by the submission of Mr Kovats on behalf of the Secretary of State, they cannot.
- I agree with Mr Sheldon that before a local authority are under the 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).
- The duty under section 20(1) is not expressed to be subject to sub-section (6). Sub-section (6) itself contains both a duty (" ... shall ... ascertain ... and give due consideration ...") and a discretion. (Much of the language of sub-section (6) imports discretions -- "so far as is reasonably practical", "consistent with the child's welfare", "due consideration)." But sub-section (6) operates as a prior step "before providing accommodation", not before the duty under sub-section (1) to do so arises. In my view, sub-section (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 any 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 sub-section (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, and in any event cannot force him into accommodation if he does not want it.
- In my view, the separate reliance on sub-section (11) adds nothing to the argument. Sub-section (11) has the sole, but very important, effect that whereas a local authority cannot accommodate a child under 16 under section 20 against the will of any person with parental responsibility for him, once a child has reached 16 his agreement effectively overrides any objection by the parent. It is not an aid to wider issues of construction.
- 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 J's distinction between duties which are general and duties "which are particular" and "governed by individual circumstances". It follows, too, from the distinction drawn by Lord Scott of Foscote at paragraph 114 between overarching or framework duties and specific duties owed to specific children.
- As in the case of R v London Borough of Bexley 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.
- On the facts of the Wandsworth case, the local authority expressly assessed the claimant to be a child in need within their area, who appeared to them to require accommodation, and if they applied their minds to the question, it could not have failed to appear to them that he required it as a result of the reason in paragraph (c). So all the ingredients for imposition of a duty under section 20(1) did arise in this case, and when they actually provided the accommodation, they must have done so in discharge of that duty. In my view, the statutory chain did then follow. He did become a looked after child pursuant to section 22(1)(b), and, when he attained 18, a former relevant child.
- In my view, the approach which Wandsworth adopted in this case was not at all in accordance with either the Act or even the guidance and was accordingly unlawful. If the claimant had made plain that he did not wish to be provided with accommodation at all, then that might have been the end of the matter. But Wandsworth were wrong in law to present him with the three "options" described in the initial assessment record and quoted above, and to require him to indicate a choice between section 17 and section 20. Instead, they should have discussed with him the types of accommodation they might be able to provide, and ascertained his wishes and feelings with regard to them. Separately, they should have discussed with him the range of services and support available for a looked after child, and ascertained his wishes and feelings with regard to how far he wished to take advantage of them.
- Further, on the facts of this particular case, I regard confronting a child in the circumstances of this claimant with the need to make a choice between two statutory provisions on the basis of the document that was given to him as little short of bizarre.
- As Mr Kovats submitted, the policy and approach of Wandsworth did not at all accord with the guidance in LAC13. However, Wandsworth appear generally to have believed that they were applying and being loyal to the guidance. Having now read the guidance several times and with care, and in the light of Mr Kovats' submissions, I do not consider that the guidance is actually wrong, still less unlawful. But I do consider that it has the potential unwittingly to mislead, as indeed it appears to have misled Wandsworth.
- The key to the guidance is, as Mr Kovats submitted, the careful use of the phrases "needs help with accommodation" and "who ... might appropriately be assisted under section 17" [my emphasis] in the second passage quoted above; and the reference to "any decision about whether he should be provided with accommodation under section 20" [my emphasis] or "whether other types of services provided under section 17 are better suited to his circumstances". In the third passage quoted above, the circular makes the essential issue whether 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 ... In such cases section 17 may be used for support, including help with accommodation ..."
- 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.
Outcome in Wandsworth case
- In this case, I will accordingly quash any decision by Wandsworth to accommodate the claimant under section 17 rather than section 20, and quash any later decision by them to the effect that he was being accommodated under section 17 rather than section 20. I will declare that, at all material times up to the moment when he attained 18, Wandsworth did provide accommodation for the claimant under section 20, and accordingly that he was a looked after child. I will declare and, if necessary, order that they must now treat him as a former relevant child.
- There is no evidence that Wandsworth will not now act lawfully and appropriately in light of the above orders, and I make no further or more specific orders as to any future action they should or should not take in relation to him.
- I dismiss the application for a declaration that LAC(2003)13 is unlawful.
The Hackney case
- In August 2005, the claimant arrived in the United Kingdom as an unaccompanied asylum seeking child from Eritrea. He was then recently aged 17. His father was dead. His mother had recently been arrested and was either dead or in prison at an unknown location. He promptly claimed asylum. His asylum claim has not yet been determined. The London Borough of Hackney (Hackney) provided temporary accommodation in accommodation of their own with three other young asylum seekers, and also weekly financial support.
- Hackney do not have a protocol or similar policy document, and in this case, unlike the Wandsworth case, did not present the claimant with a document purporting to describe and compare provision under section 17 and section 20 respectively. An initial assessment report signed on 5 September 2005 began:
"[The claimant] confirmed that he is seeking asylum as an unaccompanied minor and essentially is applying for support under the [sic] section 17 of the Children's [sic] Act."
It is ambiguous whether the second limb of that sentence ("... and essentially is applying for ...") is part of what the claimant "confirmed", or merely an analysis or conclusion by the social worker. The report said that he can read and write some Amharic, but had not received any education. He is able to cook, clean and perform most household chores, and describes himself as mentally fit. He has no family or friends in the United Kingdom.
- Under a heading "Analysis", the report concluded that:
"He ... will need support in the following-
Legal support [viz with his asylum claim]
Support with educational opportunities
- Ticked boxes indicated that he is a child in need due to "low income" and "absent parenting". His level of need was, however, assessed as "low" on a scale of high, medium, low. The report was signed by a team manager, Mrs Pansita Francis. At paragraph 14 of her statement dated 12 February 2007, Mrs Francis says:
"Having completed the assessment, observing [the claimant] throughout the assessment and analysing the information obtained from [the claimant], it was concluded that [the claimant] had the necessary skills to function independently with limited support. [The claimant] was informed that he would therefore be supported under section 17 of the 1989 Act and that arrangements would be made to provide him with assistance the following:
• Provision of accommodation
• Provision of financial assistance of £63.50 per fortnight
• Assistance with accessing legal support
• Support with education
• Assistance with registering with a GP
• Any other need that was required at time."
- In their acknowledgment of service, signed with a statement of truth on 29 August 2006, Hackney said:
"He was assessed by the Unaccompanied Minors Team of the Asylum Team ... as a young person who was in need of accommodation and subsistence support. He did not require social services involvement in his life above this. He was correctly placed as a young person under section 17 of the Children Act."
- From first to last in their documents and in correspondence with solicitors on behalf of the claimant, Hackney have maintained that they supported or were supporting him under section 17 and not under section 20.
- The claimant became 18 in June 2006, and in August 2006 the National Asylum Support Service "dispersed" him to Coventry in accordance with published "dispersal guidelines" in NASS Policy Bulletin 31. However, paragraph 4.1 of those guidelines states as follows:
"4.1 Ministers agreed with effect from 1 October 2001, that NASS would not seek to disperse those young people who reach the age of 18 without a final decision being reached on their asylum claim if they have been accommodated by the local authority under section 20 of the Children Act 1989 and qualify as 'former relevant children' under section 23C of the Children (Leaving Care) Act 2000."
- It thus appears that NASS would not have dispersed the claimant to Coventry if Hackney had classified that they were providing accommodation for him under section 20. As I understand it, if his claim is successful as against Hackney, then NASS will consider returning him (as he wishes) to London where he can resume his studies.
- It is not in dispute that at all material times Hackney did in fact provide accommodation for the claimant. On behalf of the claimant, Mr Knafler adopted his argument from the Wandsworth case, and submitted that Hackney either did decide or ought to have decided that each of the ingredients in section 20(1) was satisfied, and accordingly that they provided the accommodation in discharge of their duty under that section. They expressly assessed that he was a child who was a child in need. It is not in dispute that he was in their area. He manifestly fell within the facts of paragraph (c), his father being dead and his mother recently dead or in prison. Mr Knafler submitted that it either did appear or should have appeared to Hackney that he required accommodation as a result of that fact.
- On behalf of Hackney, Miss Karen Steyn first stressed that the dispersal to Coventry was the immediate consequence of a decision by NASS, not by Hackney, and that it was a decision with which Hackney disagreed. She stressed that at no stage did any decision by Hackney lack rationality. She submitted that the formal assessment report and the statement of Mrs Pansita Francis both reveal a rational process, and that Hackney had been consistent in their approach that they were acting under section 17 rather than section 20.
- Miss Steyn adopted, so far as material, the submissions of Mr Sheldon in the Wandsworth case, and stressed two particular points. First, she stressed that section 20(1) is triggered only if the child appears to the local authority "to require accommodation", and stressed the distinction (drawn from the circular) with requiring help with accommodation. She argued that the mere fact that, as was the case, the council chose to use and provide their own accommodation does not mean that it necessarily appeared to them that he required accommodation. She argued that the important question is what were his requirements, and relied on the initial assessment report quoted above as evidencing that he only required "support in ... accommodation".
- Secondly, Miss Steyn stressed the words "as a result of" as a discrete and important ingredient of section 20(1). She submitted that, even if the claimant required accommodation and not merely help with accommodation, that was not "as a result of" any of the factors in (a) to (c), but simply as a result of his own impecuniosity. In essence, her argument was that, despite his lack of education, youth, and isolated circumstances, with no family or friends in the United Kingdom, the claimant was a competent and confident person who really only lacked financial means.
- I unhesitatingly reject this second point of Miss Steyn for two reasons. First, the ticked boxes in Hackney's own initial assessment clearly identified his needs as being due to both "low income" and "absent parenting". Second, the comments of Lord Hope at paragraph 100 of his speech in G v Barnet indicate, in my view, that a wide and purposive approach should be given to the words "... as a result of ..." and to paragraph (c). If the child is a child in need (itself an essential prerequisite) and he does require accommodation, and on the facts he does fall within one or more of paragraphs (a) to (c), then the duty under section 20(1) should not be displaced by a view that he requires accommodation as a result merely of impecuniosity. Such an approach would dead letter section 20 in many cases.
- Miss Steyn's first point is more formidable and more difficult. However, I have come to the conclusion that, on a fair overall reading of Hackney's documents, coupled with what they actually did, they did in truth decide (so it therefore appeared to them) that in relation to accommodation he did require actual provision and not mere help. In my view, the true and fair reading of the analysis in the assessment report is not that the words "support in" in the phrase "will need support in the following" qualifies each of the specific areas of need which are then listed. If the words "support in" are read as qualifying each of the listed needs, it would read "support in accommodation" which would certainly make sense, but also "support in financial assistance" and "support in legal support", which are tautologous and do not make sense.
- 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. Although the statement of Mrs Francis is only very recent, it seems to me that a fair reading of paragraph 14 of her statement, quoted above, leads to the same result. She is not describing mere "assistance with accommodation". Rather, she is describing that he needed a range of assistance, one form of which was "provision of accommodation". In my view, the reality is that Hackney did make judgments which triggered the duty under section 20. They did actually discharge that duty by providing accommodation under section 20. He did become a looked after child, and is now a former relevant child.
- It is sufficient in this case if I declare that at all material times up to the moment when he attained 18, Hackney did provide accommodation for the claimant under section 20 and not under section 17 of the Children Act 1989, and declare that, when he attained the age of 18, he became and is now a former relevant child under section 23C of that Act.
The Islington case
- In this case, the claimant's father died when she was very young, and her mother died in 2002 shortly after being released from prison. It is thus a case which falls squarely within paragraph (a) of section 20(1), and probably also within paragraph (c).
- The claimant travelled from Eritrea and claimed asylum in the United Kingdom in December 2004, about three weeks after her 16th birthday. The Home Office initially accommodated her in Plymouth; but about nine months later she travelled to Islington, claiming that she had suffered racial harassment in Plymouth, and presented herself to the London Borough of Islington (Islington).
- Shortly after her arrival in Islington in October 2005, she was as a matter of fact accommodated by the Housing and not the Social Services Department. During February 2006, the Social Services Department undertook a Children in Need Core Assessment. At the time, her address was accommodation provided by the Housing Department. The assessment reported that her parents are both dead and that she has no family member in the UK. She was gradually becoming more and more familiar with various support services, such as the Refugee Council, Connexions, GP, college ... Under the circumstances, she had shown great strength and determination in trying to access services that will promote and protect her wellbeing. In the view of the report writer, she was not "more vulnerable than any [sic] other young person living in London", and was capable of accessing services on her own accord. However, she "needs to be provided with more permanent accommodation, preferably in Notting Hill Gate where she has a strong local connection with her church and Eritrean community".
- The manager's decision, recorded at the end of the assessment report, was:
"To support with basic signposting to relevant agencies if housing agree that she has a local connection to this borough.
Otherwise to forward this assessment to whichever borough she resides in to inform their assessment."
- The approach of the manager was thus to continue to treat this as a case for the Housing Department and to limit Social Services support to "basic signposting to relevant agencies". However, on 2 March 2006 her temporary accommodation provided by the Housing Department was terminated and, as a matter of fact, a social worker took her temporarily to stay at a hotel called Eleanor Hotel, which the Social Services Department paid for. On 7 March 2006, the legal department of Islington wrote to solicitors on behalf of the claimant as follows:
"Your client has been assessed as a Child in Need of accommodation. There has been no assessed need for anything else. My client is presently trying to identify the means by which to meet your client's assessed needs. I understand that in the meantime your client has been provided with temporary accommodation at Eleanor Hotel in the London Borough of Islington."
- Islington accept that this letter evidences that on or before 7 March 2006 they did assess her as being (i) a child in need, who (ii) appeared to them to require accommodation.
- On 28 March 2006, the legal department sent a further letter as follows:
"I do not accept that your client was an eligible child and now a relevant child thus attracting duties under the Children Leaving Care Act 2000. When your client came to this authority in October 2005, she was not accommodated by Islington Social Services. In fact she was referred to the Housing Department of Islington who offered her temporary accommodation. Your client has only recently been accepted as a Child in Need of accommodation by this authority following its completion of the Child in Need assessment which was less than 13 weeks ago. [their emphasis]
I therefore do not see how you can hold that your client is a child who was looked after prior to that assessment. My client therefore does not accept that your client is owed any duties under the Children Leaving Care Act 2000."
- On 7 April 2006, the claimant moved to accommodation where she remains, namely a room at 27 Morrison Avenue, London N17. She shares this accommodation with three other girls, aged (in December 2006, the date of the relevant statement) 17, 18 and 19, all of whom are separately supported by Islington under the Children Act or Children Leaving Care Regulations.
- According to paragraphs 20 and 21 of a statement by a social worker, Sylvena Semper, dated 13 February 2007, the legal and factual basis of the claimant's occupancy of 27 Morrison Avenue was and is as follows:
"20. On the same day, the offer of accommodation in Edmonton was withdrawn and [the claimant] entered into a tenancy at Room 3, 27 Morrison Avenue, London N17. The landlord was Essex Lettings Ltd and the tenancy was of private accommodation subject to an assured shorthold tenancy, pursuant to an agreement to last for a period of 12 months. [The claimant] remains in accommodation at these premises. Islington Social Services Department paid the deposit for this accommodation, but [the social worker] wrote to [the claimant] on 8 May 2006 to explain she should claim Housing Benefit in order to pay the rent. He also explained that she might decide in the near future to find accommodation for herself, and that she would be free to do so and to claim Housing Benefit in relation to such accommodation also. [The social worker] also confirmed in the letter that she had previously been assessed as an independent person in need of housing, and that this need had now been met under section 17 of the Children Act 1989. He concluded that her social services file would be closed on 12 May 2006.
21. [The claimant] has lived at 27 Morrison Avenue since 7 April 2006 without any interference from Islington and without Islington making any payments other than the payment of the deposit. The only involvement that Islington Social Services has had subsequently was that on one occasion I assisted [the claimant] by contacting the landlord of the property about a washing machine. It was not necessary for me to make this contact. [The claimant] is and was capable of doing so on her own account."
- The social worker, Mr Edwards' letter of 8 May 2006 said as follows:
"When you presented at our office on 20/10/05 it became apparent that you needed some assistance in finding accommodation, preferably, one that is suitable for an independent person. Now that you have accepted accommodation, which has been found for you, I am writing to clarify what your situation means for you and for us.
In relation to your housing, we have agreed to make a deposit payment to the agent for the accommodation. You are expected to make a housing benefit claim, which the agent has assisted you to do to ensure your rent is paid. Having said this, you may decide in the near future that you want to find your own accommodation, in which case you will be free to do so and claim housing benefit as well.
In terms of our support, our assessment concluded that you are an independent person with a housing need, which has now been met under section 17 of the Children Act ...
Your file will be closed on 12 May but you are free to seek advice from our duty service in the near future."
- In the Wandsworth case, the local authority said that the claimant had elected to be provided with accommodation under section 17. In the present case, the claimant first approached solicitors in January 2006, and it is quite clear that on her behalf they maintained the stance from first to last that she was entitled to be provided with accommodation pursuant to section 20 and, at 18, to access the services as a former relevant child. She attained the age of 18 in December 2006. However, Islington maintain that she is not a former relevant child and that they are not under a duty to provide any further services or support.
- Relying on his argument in the Wandsworth case, the essential submission of Mr Knafler is that Islington's legal department's letter of 7 March 2006 evidences that on or before that date (i) the claimant was a child in need; (ii) she was within their area; (iii) she did appear to them to require accommodation; and (iv) it did appear or must have appeared to them to be as a result of paragraph (a) and perhaps also (c) of section 20(1). He accordingly submitted that they then came under the duty under section 20(1). If and insofar as the wishes and feelings of the claimant were relevant, she was expressly asking them (through her solicitor) to treat the duty as being under section 20(1) and to discharge it.
- In the period from 3 March to 7 April, while she stayed at Eleanor Hotel, she was clearly provided with accommodation pursuant to section 20(1). Mr Knafler submitted that when Islington enabled her to live at 27 Morrison Avenue on 7 April, they must have thereby also provided accommodation for her pursuant to section 20(1) or, if not, were in breach of their duty to do so. Mr Knafler submitted that Islington found the accommodation at 27 Morrison Avenue for her. Although it was a rented house in the private sector, it was already being occupied by other children in need, "put there" by them. It must in reality have been Islington's room to dispose of, and the letter from the legal department of 11 May 2006 refers to Islington as having "provided [the claimant] with accommodation" albeit, it was contended, under section 17.
- In this case, Mr Knafler relied in particular on the judgment of the Court of Appeal in London Borough of Southwark v D  EWCA Civ 182 in which at paragraph 55 the court said:
"The pre-conditions to disposal under section 23(2) and 23(6) are the same, namely that the child must be a looked-after child. In our judgment, the child is being looked after by the local authority as soon as the section 20(1) duty arises. It is not necessary that the child should have been accommodated for 24 hours before s/he is being looked after. We accept Mr O'Brien's submission that the child becomes looked-after when it appears to the local authority that (for one of the reasons set out in the section) the child appears to require accommodation for more than 24 hours. If that condition is satisfied, as it was here, the section 20(1) duty arises immediately and the authority must take steps to ensure that accommodation is provided. Either it can provide it itself by making a section 23(2) placement or it can make arrangements for the child to live with a relative, friend or connection, pursuant to section 23(6)."
- Mr Knafler submitted that the sentence beginning, "Either it can provide it itself by making a section 23(2) placement ..." indicates the placement is not a one-off event, but a continuous discharge of a continuing duty under section 20(1).
- On behalf of Islington, Mr Bryan McGuire deployed many arguments overlapping with those in the Wandsworth and Hackney cases, but submitted as his primary submission that this claim must fail on its facts. In order for the claimant to be a former relevant child, the effect of paragraph 19B(2) of Schedule 2 to the Act requires her to have been looked after for a minimum prescribed period, and the prescribed period is 13 weeks. Mr McGuire accepted that the claimant was a looked after child between 3 March 2006, when she was accommodated at the Eleanor Hotel on the basis later described in the letter of 7 March 2006, until 7 April 2006, when she moved to Morrison Avenue -- less than 13 weeks. But he submitted that on 7 April Islington did not provide accommodation for her, they merely provided a deposit; alternatively, if they did on that date provide the accommodation, they did so on a purely one-off basis and so the 13-week requirement is still not satisfied.
- Mr McGuire submitted that the comments of the Court of Appeal at paragraph 55 of their judgment in London Borough of Southwark v D, upon which Mr Knafler relied, are not in point in the present case. At paragraph 59 of their judgment, the Court of Appeal said on the facts of that case that "... the only inference that can reasonably be drawn is that Southwark was asking ED to accommodate [the child] on their behalf and at their expense" [his emphasis]. Therefore, on the view the Court of Appeal took of the facts, the provision of the accommodation in that case was clearly a continuing state of affairs and the accommodation was being continuously provided by ED "on their behalf" -- ie in discharge of their duty.
- What is perhaps more significant from London Borough of Southwark v D is that the Court of Appeal approached the matter as ultimately a question of fact, see paragraph 49:
"... 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."
At paragraph 58 they ask:
"The question is what did Southwark in fact do?"
- In my view, Mr McGuire is right, and Islington are entitled to say, on the facts of this particular case, either that they did not provide accommodation at all, but merely a deposit on 7 April 2006; or that if they did provide accommodation on that day, it was a one-off and not a continuing provision. Either way, the claimant was not looked after for 13 weeks and is not a former relevant child.
- 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 v D case fell within that spectrum, but did 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.
- The facts may have been fortuitous. On 4 April, Islington had offered to provide other accommodation for the claimant in Edmonton, which she had visited but rejected. So, in the words of the Court of Appeal, they were "on the verge of having to provide accommodation for her". But as events turned out, there was accommodation available at Morrison Avenue, acceptable to her, which required from Islington no more than payment of the deposit. By helping her to privately rent that property, they did in fact "side-step" (fortuitously but not deviously) the section 20(1) duty. In terms of section 20(1) itself, once the accommodation at Morrison Avenue was available and acceptable to her, she no longer appeared to require accommodation, but only help with the deposit. If, alternatively, Islington did, on 7 April itself, provide accommodation for her by "putting her in" accommodation which was available to them, then it seems to me that that was a one-off act. She thereafter signed a private tenancy agreement directly with the private landlord, and obtained and funded her rent out of housing benefit. There was no continuing sense in which Islington provided her with accommodation. As Mrs Semper's statement said, they made no other payment than the deposit, and had no further involvement at all in or in connection with her accommodation than a minor and irrelevant contact about a washing machine.
- I will accordingly dismiss the claimant's claim in the Islington case.
- Are there any matters that arise?
- MISS STONE: My Lord, I have an application for permission to appeal.
- MR JUSTICE HOLMAN: Does any matter arise except in relation to costs?
- MR MCGUIRE: My Lord, I might mention two matters. Firstly, we did not formally deal with the question of permission in the Islington case.
- MR JUSTICE HOLMAN: We did before you got here.
- MR MCGUIRE: Forgive me. We will treat it as having been given.
- MR JUSTICE HOLMAN: I dealt with that at the outset of the judgment, but that needs to be incorporated in an order, but we dealt with that.
- MR MCGUIRE: I am grateful. The second matter is, though I have won on the first point, perhaps one sentence should be stated saying that the other arguments, I assume, have been rejected for the same reasons as set out in the Wandsworth and Hackney case.
- MR JUSTICE HOLMAN: I am not going to now alter what I have carefully put in judgment. I have dealt with your case on the facts, and you won and you had better be content with that.
- MR MCGUIRE: I am grateful.
- MR JUSTICE HOLMAN: Now what applications does anybody make in relation to costs?
- MR KNAFLER: My Lord, I apply for costs in the first two cases, simply on the basis that costs normally follow the event.
- MR JUSTICE HOLMAN: Costs against the relevant local authorities?
- MR KNAFLER: Costs against the relevant local authorities.
- MR JUSTICE HOLMAN: Was anything said when Mr Kovats was here about the Secretary of State and his costs? He seems to have just chosen not to come today. I cannot remember. Was there any agreement or consensus or anything like that that the Secretary of State should get costs, eg against you if, as I have said, the guidance is lawful? It may be he was not bothered.
- MR KNAFLER: I do not know if I am confusing this case with other cases, the Secretary of State's usual position is that he does not like paying them, but does not necessarily seek them. I would infer from Mr Kovats' request to be excused attendance today, which was expressly granted, that that was the course that he continued to propose to take. But if there is any doubt about it, there can always be liberty to apply.
- MR JUSTICE HOLMAN: I am not going to revisit any of this on costs. I am going to deal with it now. I am going to say, so far as costs of the Secretary of State is concerned, there is no order as to costs either against him or in his favour -- that is the Secretary of State. Now, you ask for your costs of the Wandsworth and Hackney cases on the straightforward basis that you have succeeded.
- MR KNAFLER: Yes.
- MR JUSTICE HOLMAN: Let us just hear what Miss Stone says on behalf of Wandsworth.
- MISS STONE: On behalf of Wandsworth, there are just a couple of short points, my Lord. The first is that these should be restricted to the first day of the hearing in that Wandsworth was not required in order --
- MR JUSTICE HOLMAN: That is an assessment point for somebody other than me.
- MISS STONE: I also ask that there be a 20 per cent reduction to reflect the fact that one of the important points was abandoned; that is whether or not there is a power under section 17 to provide accommodation in these circumstances at all, and on that basis I ask for a broad sweep 20 per cent reduction.
- MR JUSTICE HOLMAN: I do not remember the abandonment. That is too much of an issue-based approach. I am afraid as against Wandsworth he won very, very clearly, and I think in the Wandsworth case, Wandsworth must pay the costs of the claimant, to be assessed if not agreed. But clearly when costs are assessed, if they are not agreed, very close attention will have to be paid to the fact that three cases were being heard, and Wandsworth must not in any way be funding that part of the time, whether of preparation or in court, that was referrable to the Hackney or Islington cases. But that is a question for Wandsworth to be alert to at the assessment procedure, and say: "Hang on a minute, that is not down to us". But I think the principle is that those costs which are properly referrable to the claimant's claim against Wandsworth must be paid by Wandsworth.
- MISS STONE: I am grateful, my Lord.
- MR JUSTICE HOLMAN: What about Hackney? I think you are in the same boat, are you not?
- MS IYENGAR: My Lord, listening to the judgment today, I can see that on the substantive case Hackney has lost. I am not, I am afraid, instructed or in a position to make a comment about the presentation of the case, but I would respectfully ask your Lordship to bear that in mind.
- MR JUSTICE HOLMAN: It seems to me that Hackney has lost as well, and as between Hackney and the claimant in that case, Hackney must pay the claimant's costs, but the same point must be attended to on assessment, that you have only got to pay the costs insofar as they are referrable to the case against you and not preparatory work or time in court which was referrable to the cases against Wandsworth or Islington.
- Now, you have won.
- MR MCGUIRE: Yes, but the claimant is without means.
- MR JUSTICE HOLMAN: Do you want these so-called football pools order or anything like that?
- MR MCGUIRE: Islington do not usually trouble to ask.
- MR JUSTICE HOLMAN: Very well. I simply say: no order as to costs inter partes in the Islington case.
- MR MCGUIRE: I am obliged.
- MR JUSTICE HOLMAN: Now, Mr Knafler -- or ladies and gentlemen generally -- can I rely on you please in collaboration with the associate to ensure that a correctly drafted order is drawn, which deals with all these points in all these cases. I do not wish to see it myself if it is agreed between all counsel. Whether in the end this goes back for consideration by people like Miss Steyn and Mr Sheldon or how you deal with it is not of any concern to me.
- MR KNAFLER: I will draft something up and circulate it. My Lord, in relation to all these cases, may I insert in the order that there be a detailed assessment of the claimant's publicly funded costs?
- MR JUSTICE HOLMAN: Certainly. Does any other point now arise in any of these cases, except any question of permission to appeal?
- MR KNAFLER: No, my Lord.
- MR JUSTICE HOLMAN: Right. Let us just go around the courtroom. Mr Knafler, do you seek permission to appeal in any respect on law or fact on which you have not been successful?
- MR KNAFLER: I think, just to protect my clients's position while we think about it, without necessarily indicating the likelihood of the appeal, I suppose just to protect our position I should ask for permission to appeal in relation to the guidance and Islington.
- MR JUSTICE HOLMAN: I do not think you can just protect your position. If you wish me to grant you permission, you have to apply today.
- MR KNAFLER: Yes, in relation --
- MR JUSTICE HOLMAN: Anyway, I am against you frankly. So far as the Islington case is concerned, that in the end is a decision on its facts, and that is that. So far as the guidance is concerned, I am very clear that I am right in what I have said about that. I may be wrong, but I personally am clear that I am right, so if you want permission, you will have to get it from someone other than me.
- MR KNAFLER: Yes, of course.
- MR JUSTICE HOLMAN: So I refuse that.
- MISS STONE: My Lord, in relation to the statutory construction, of course I ask for permission to appeal on the basis that these are matters of law of great public significance.
- MR JUSTICE HOLMAN: That is a matter for the Court of Appeal to think about. As far as I am concerned, I always find it difficult when I have given a fairly carefully prepared judgment to conceive that I have made an error of law, and even more that I have made an error of discretion insofar as discretion comes into it, and if you wish to say: oh well, there is some great public importance here, that is for the Court of Appeal to decide, not me. So I refuse permission. If you were to apply, the answer would be the same.
- MS IYENGAR: My Lord, I think from a pragmatic point of view, I might be in a better position if I make an application.
- MR JUSTICE HOLMAN: You can make it and it is refused.
- MS IYENGAR: Thank you, my Lord.
- MR JUSTICE HOLMAN: So it is an across-the-board refusal of permission. The only thing that I will say though, and could you put this into the order, Mr Knafler, is that I have refused permission on all applications for permission to appeal, but the time for any renewed applications to the Court of Appeal for permission to appeal should run from the date upon which the respective parties receive the official approved copy of the judgment. I say that in particular as Wandsworth and Hackney do not have their trial counsel here.
- MR KNAFLER: I am grateful.
- MR JUSTICE HOLMAN: So I am not quite sure how long you do have for appealing to the Court of Appeal.
- MR KNAFLER: It is 14 days.
- MR JUSTICE HOLMAN: It is 14 days then, but it is 14 days from the date when any party who wishes to make an application to the Court of Appeal receives the approved transcript. So these wonderful stand-in advocates can report back the outcome and maybe in general terms the gist of it all, but I think it is only fair that Mr Sheldon in relation to Wandsworth and Miss Steyn in relation to Hackney should have an opportunity of reading the judgment before deciding whether they sensibly think they can apply for permission.
- Anything else? I am extremely grateful to you all, very much indeed. I am sorry it was at such short notice, in particular for you, Mr McGuire, but it does seem that the office in fact was not on this occasion at fault.
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