QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|(1) LONDON BOROUGH OF WANDSWORTH|
|(2) LONDON BOROUGH OF HACKNEY|
|(3) LONDON BOROUGH OF ISLINGTON||(DEFENDANTS)|
|SECRETARY OF STATE FOR EDUCATION AND SKILLS||(INTERESTED PARTY)|
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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
The statutory framework
"(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 ..."
"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."
"(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."
"(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; ... "
"(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 personon 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."
The facts of the Wandsworth case
"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".
"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 ...
"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."
"[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."
"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."
"[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.
The argument and submissions
" ... 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 ... "
"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 ... "
"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."
"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."
"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."
Discussion and outcome in the Wandsworth case
Outcome in Wandsworth case
The Hackney case
"[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.
"He ... will need support in the following-
Legal support [viz with his asylum claim]
Support with educational opportunities
"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."
"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."
"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."
The Islington case
"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."
"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."
"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."
"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."
"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."
"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)."
"... 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?"