ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE McCOMBE
LOWER COURT No: CO/1598/2010
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WILSON
LORD JUSTICE TOULSON
| THE QUEEN (on the application of TG)
|- and -
|LONDON BOROUGH OF LAMBETH
Mr Hilton Harrop-Griffiths (instructed by its Legal Services department) appeared for the Respondent.
The Intervener made written submissions but did not appear.
Hearing dates: 12 January and 20 April 2011
Crown Copyright ©
Lord Justice Wilson:
B: THE FACTS
"I understand that the relationship between [the appellant] and his mother has broken down to the point that it is not advisable that they both live in the same household.
communication between [the appellant] and his mother most of the time is confrontational.
[the appellant] has now been asked to leave the family home by his mother.
This young person is in desperate need of housing and would hope that his housing need is met as he fulfils the Child in Need criteria."
Ms Acquah furnished the report to the appellant so that he could take it to the HPU. She did not refer him to Lambeth's children's services department.
C: LAMBETH'S FAILURE TO FOLLOW GUIDANCE
"A number of the children and young people who fall within the remit of YOTs will also be children in need, including some whose needs will include safeguarding. It is necessary, therefore, for there to be clear links, both at [Area Child Protection Committee]/YOT strategic level, as well as at child-specific operational level, between youth justice and child protection services. These links should be incorporated in each local authority's Children's Services Plan, the ACPC business plan and youth justice plan itself. At the operational level, protocols are likely to be of assistance in establishing cross-referral arrangements."
In the current guidance the equivalent paragraph, cast in somewhat different terms, is 2.147.
"Homeless young people may frequently come to the notice of both housing and social services and will need to be assessed to establish whether they should be provided with accommodation. There is a danger that in these circumstances young people may be passed from one agency to another and it is important therefore that joint protocols are agreed between housing and social services in the matter of how and by whom they are to be assessed."
Furthermore in 2002 the Office of the Deputy Prime Minister issued guidance, pursuant to s.182 of the Act of 1996, entitled "Homelessness Code of Guidance for Local Authorities". Paragraph 8.37 of the guidance provided as follows:
"Responsibility for providing suitable accommodation for a relevant child or a child in need to whom a local authority owes a duty under section 20 of the Children Act 1989 rests with the social services authority. In all cases of uncertainty as to whether a 16 or 17 year old applicant may be a relevant child or a child in need, the housing authority should contact the relevant social services authority. It is recommended that a framework for joint assessment of 16 and 17 year olds is established by housing and social services authorities to facilitate the seamless discharge of duties and appropriate services to this client group."
(a) "Homelessness Code of Guidance for Local Authorities" which was issued pursuant to s.182 of the Act of 1996 by the Department for Communities and Local Government ("DCLG") in July 2006 and which replaced the guidance of 2002: see paragraphs 10.39 and 12.6;
(b) "Joint working between Housing and Children's Services: Preventing homelessness and tackling its effects on children and young people" which was issued, otherwise than pursuant to statute, by the DCLG and the Department for Children, Schools and Families in May 2008: see paragraph 2.2; and
(c) "Provision of Accommodation for 16 and 17 year old young people who may be homeless and/or require accommodation" which was issued pursuant both to s.7 of the Act of 1970 and to s.182 of the Act of 1996 by the same two departments in April 2010: see paragraphs 5.2 to 5.5.
The guidance referred to at (c) above was expressed to be given in the light, among other things, of the decision of the House of Lords in R(M) v. Hammersmith and Fulham LBC  UKHL 14,  1 WLR 535, in which the structural failure of Hammersmith in April 2005 to have devised the recommended joint protocol and the individual failure of its housing department to have referred Miss M to its children's services department were clearly advertised in the speech of Baroness Hale, from  to .
"Just as in M, with the benefit of hindsight, the Housing Department or the YOT should probably (as a matter of good practice) have referred the Claimant here to the team in charge of children's social services "
With respect to the judge, however, I agree with Mr Gordon's criticism of the terminology of the above sentence. It is too weak. It is inaccurate to describe guidance given under s.7 of the Act of 1970, i.e. guidance under which local authorities "shall act", as apt to be followed "probably" or only "as a matter of good practice". In the absence of a considered decision that there is good reason to deviate from it, it must be followed: see the classic exposition by Sedley J in R v. Islington LBC ex p Rixon (1998) 1 CCLR 119 at 123 J-K.
D: A FORMER RELEVANT CHILD
(b) A "former relevant child" is defined in subsection (1), and, insofar as material, it requires the appellant during his minority to have been a "relevant child".
(c) A "relevant child" is defined in s.23A(2) and, insofar as material, it requires the appellant to have been, when aged 16 or 17, a young person who
(i) had been "looked after" by Lambeth;
(ii) had ceased to be "looked after" by Lambeth; and
(iii) before ceasing to be "looked after" by Lambeth, had been an "eligible child".
(d) An "eligible child" is defined in paragraph 19B(2) of Schedule 2 to the Act and, insofar as material and in the light of the matters prescribed in Regulation 3 of the Children (Leaving Care) (England) Regulations 2001 (SI 2001/2874), it requires the appellant to have been, when aged 16 or 17, a young person who was being "looked after" by Lambeth and whom it had "looked after" for at least 13 weeks beginning after his 14th birthday and ending after his 16th birthday.
(e) The period of Lambeth's provision of accommodation for the appellant, namely between March and October 2006, is indeed a period of at least 13 weeks beginning after his 14th birthday on 30 April 2003 and ending after his 16th birthday on 30 April 2005.
(f) A "looked after" child is defined in s.22(1) and, insofar as material, it requires the appellant to have been provided with accommodation in the exercise of any of Lambeth's social services functions, in particular those under s.20(1) or (3).
(h) So at last, and as is common ground, we reach the central question: was Lambeth's provision of accommodation to the appellant made in the exercise of its functions under s.20(1) or (3) of the Act of 1989? Only if so did he become a former relevant child on attaining his majority.
E: THE CRITERIA UNDER SECTION 20
"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."
Did the appellant's mother (asks Mr Harrop-Griffiths) fall within the terms of this provision? My answer to his question is yes. "The widest possible scope must be given to this provision": R(G) v. Barnet LBC  UKHL 57,  2 AC 208, per Lord Hope at . On that footing Ms Acquah's judgement about the mother's capacity to continue to care for the appellant clearly places her within its terms. Moreover there is s.20(3), which required Lambeth to provide accommodation for the appellant if he was:
"[a] child in need who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation."
Subsection (3) has no requirement analogous to subsection (1)(c) and, again, although we heard no argument on it, it seems to me squarely to be satisfied by the terms in which Ms Acquah expressed herself.
" shall, so far as is reasonably practicable and consistent with the child's welfare
(a) ascertain the child's wishes regarding the provision of accommodation; and
(b) give due consideration (having regard to his age and understanding) to [them]."
Should we (asks Mr Harrop-Griffiths) conclude that, if asked, the appellant would have expressed the wish to be accommodated under s.20 of the Act of 1989 rather than under s.188 of the Act of 1996? Even had he not expressed such a wish, his views might not have prevailed if his welfare had demanded otherwise. But my main answer to Mr Harrop-Griffiths' second question is, again, yes. A proper respect for the appellant's appreciation of self-interest yields the conclusion that, had the difference been properly explained to him, the prospective financial and other benefits available to him at least until his 21st birthday in the event of accommodation under s.20 would have secured his request for it.
F: "LOOKED AFTER"
"It is one thing to hold that the actions of a local children's services authority should be categorised according to what they should have done rather than what they may have thought, whether at the time or in retrospect, that they were doing. It is another thing entirely to hold that the actions of a local housing authority should be categorised according to what the children's services authority should have done had the case been drawn to their attention at the time. In all of the above cases, the children's services authority did something as a result of which the child was provided with accommodation. The question was what they had done. In this case, there is no evidence that the children's services authority did anything at all. It is impossible to read the words [in s.22 of the Act of 1989] to include a child who has not been drawn to the attention of the local [children's] services authority or provided with any accommodation or other services by that authority."
"Given that it has been decided in M that a firm line has to be drawn in resolving when a local authority is exercising its social services functions, it seems to me that the line has to be drawn by saying that the duty is not triggered until the child comes to the attention of the division of the local authority responsible for those functions in the ordinary course. The peripheral attention of a duly qualified official of a different team will not do."
" the object of the article is 'essentially' that of protecting the individual against arbitrary interference by the public authorities. Nevertheless, it does not merely compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective 'respect' for family life."
" the Convention does not as such guarantee the right to public assistance either in the form of financial support to maintain a certain standard of living or in the form of supplying day home care places."
In my view its reference to "a certain standard of living" was probably a reference to a standard of living above that mandated by Article 3.
" although Article 8 does not guarantee the right to have one's housing problem solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under Article 8
no positive obligation for the local authorities can be inferred from Article 8 to provide the applicant with a specific apartment."
(a) stated at  that the ECtHR had always drawn back from imposing on states, by reference to Article 8, the obligation to provide a home or any other form of financial support;
(b) observed at  and  that our welfare system provided benefits which went far beyond any positive action required by the convention;
(c) commented at  that, while in Marzari, cited above, the ECtHR had recognised the possibility that Article 8 might in special circumstances require a state to provide positive welfare support such as housing, it had made plain that neither Article 8 nor even Article 3 imposed such a requirement as a matter of course; but
(d) accepted at  that, if a failure of support degraded a person's circumstances down to the level identified in Article 3, the latter required that it be provided.
"We find it hard to conceive, however, of a situation in which the predicament of an individual will be such that art 8 requires him to be provided with welfare support, where his predicament is not sufficiently severe to engage art 3. Article 8 may more readily be engaged where a family unit is involved. Where the welfare of children is at stake, art 8 may require the provision of welfare support in a manner which enables family life to continue." (italics supplied).
Lord Justice Toulson:
The Master of the Rolls: